Baby Got Back and Glee

January 18th, 2013

This morning, someone pointed me to this:

http://glee.wikia.com/wiki/Baby_Got_Back

Admittedly it seems to be an unofficial wiki, and I can’t find any clearly FOX-based source that lists this track as a part of episode 11 of season 4. So I guess the jury’s still out on whether or not this is an official Glee recording.

If it is, I have some questions about how IP works in terms of this song. It’s a cover of a Sir Mix-a-Lot song obviously, but I wrote a new melody for it, which this recording uses. Back when I released it, I bought the statutory license to distribute my version of this song through Harry Fox. Creative Commons doesn’t come into play because it’s a cover song, and anyway my CC license specifies Non-Commercial.

A complicating factor is that, to my ears, it sounds like it actually uses the audio from my recording – not the vocals obviously, but the instruments sound EXTREMELY similar. And I could swear I hear the duck quack somewhere in the background there, though it’s hard to say if that’s just my ears expecting it.

Anyway, yes, weird. Exciting times! I’ll post any updates here.

UPDATE 1/18: No word from Glee or Fox, but I’ve seen screenshots of the song on Swedish iTunes listed with artist = Glee Cast. My lawyers are researching the copyright issues, and I am trying to figure out how to isolate the duck quack, or otherwise test the theory that some of my tracks are in there. This side-by-side comparison is crazy: https://soundcloud.com/alacrion/joco-v-glee

MORE UPDATE 1/20: Still no new info. At this point I’m still trying to figure out what’s going on, if this is really Glee, etc. We’ll know more this coming week when the episode it’s supposed to be from actually airs, or if/when FOX actually has a comment about this. Until then, while I am really grateful for everyone’s support, I would suggest that we all chill out until we have the whole story. This is the internet after all – it’s a complicated place and it gets a lot of things wrong. If you want to take some kind of action, donate to the EFF or Creative Commons, which is a good thing to do anytime.

MORE MORE UPDATE 1/25: Well, they aired it, seemingly unchanged. And it’s now for sale in the US iTunes store. They also got in touch with my peeps to basically say that they’re within their legal rights to do this, and that I should be happy for the exposure (even though they do not credit me, and have not even publicly acknowledged that it’s my version – so you know, it’s kind of SECRET exposure). While they appear not to be legally obligated to do any of these things, they did not apologize, offer to credit me, or offer to pay me, and indicated that this was their general policy in regards to covers of covers. It does not appear that I have a copyright claim, but I’m still investigating the possibility (which I consider likely) that they used some or all of my audio. I’ll write something longer and more detailed about this when I can get my head together about it probably in a couple of days. Thanks for your support, but please continue not to burn anything down.

415 Responses to “Baby Got Back and Glee”

  1. Kanga LaRue says:

    Interesting! Ugh copyrights and licensing are such a pain!

    But at least it’s kind of cool that they went with your version. :P

    OH!! And speaking of covers, I’ve got one of Code Monkey for you if you’d like to take a listen. :) Hope you like chiptunes!

  2. worlebird says:

    If you think @GLEEonFOX should acknowledge the contribution of @jonathancoulton, tweet them with the hashtag #whoisjohnnyc

  3. It’s available on iTunes under Glee Cast as any other Glee song is. They always (usually) release all songs from the upcoming episode on iTunes the friday before, so it’ll most likely be in the 11th episode.

  4. jefftheworld says:

    It’s always shitty when people steal music, but hopefully this ends up being a golden ticket for Mr. Co … erm, Mr. Coulton.

    Disney recently stole an Anamanaguchi song and I’m hoping they’re able to parlay that into some much deserved publicity, money and whatnot. Hopefully the same can be true in this case.

  5. Paul R. Potts says:

    Interesting (and not in a good way). It _really_ does sound to me like they used your Baby Got Back backing tracks. I bet I can prove it (or disprove it) with a little technical wizardry involving overlaying some waveforms… gonna look into that…

  6. ericdano says:

    I think you should file a lawsuit and have the episode banned from broadcast. Fox should not be blatantly ripping off your song. I don’t see it on iTunes though. Still, if they have recorded the song and plan on using it commercially you should block them. I mean, a good lawsuit is just what John Rodderick would love….and maybe could help him get that retired judge post he has always wanted.

  7. Jeff says:

    They also say “Johnny C’s” in trouble in their lyrics… no way they could have gotten that from the mixalot version…

  8. Joel says:

    I am revolted.

    You should get paid.

  9. Bob says:

    I don’t think the duck quack is in there. The backup girls start their “ahhh” right at the moment the quack would happen, so that’s probably what you’re hearing (and enhanced by the expectation of the quack).

  10. ChuckEye says:

    The question might be, even though you paid Harry Fox Agency, did you ASK Sir-Mix-a-Lot for permission to create a derivative work?

    http://www.acappella101.com/1/post/2012/02/who-owns-the-arrangement.html

  11. Chris says:

    I’m gonna play Devil’s Advocate here, and suggest the possibility that this could be a series of misunderstandings:
    Jonathan released a karaoke version of his Baby Got Back
    It’s entirely possible that an a capella group, used it on a demo cd, or something of the like, which they then put online somewhere (I have a friend in a college a capella group who has done something similar)
    the glee wiki heard that Glee will be using the song soon, somehow came across this a capella group, or this vocal group using what sounds like a Glee-Arrangement of the song and made the assumption that this recording was a leaking of the Glee version.

    This would account for the exceeding similarities in the arrangement, the ‘Johnny C’ reference, and all that shenanigans

    Or, maybe Glee is stealing from JoCo, who-because this is his arrangement of someone else’s lyrics-is the composer of this piece of music, if my time as head of my high school’s record label is correct.

    do I make too many assumptions here? or does this seem relatively plausible?

  12. I found the track on the Swedish iTunes Store, posted under “Glee Cast” for the artist:

    https://itunes.apple.com/se/album/baby-got-back-glee-cast-version/id592420108

    I think that’s confirmation.

  13. your uncle says:

    If you hire a lawyer, are you likely to get back enough money to cover the retainer?

  14. HittingSmoke says:

    Even if the lyrics are used under a license with the original content owner, wouldn’t the original musical score written by Coulton still be covered under his own license?

  15. Paul R. Potts says:

    I have captured the audio from the Glee video and put it in Logic, and lined it up with JoCo’s banjo source track. My goal was to see if I could prove that they were the same (or disprove it). I turned both tracks into mono, and attempted to get phase cancellation by lining up the gained-up banjo track and inverting it. I wouldn’t expect that to be perfect because of level, mastering, pan changes, etc., but I couldn’t get it to work at all. I then put a notch EQ on both tracks to isolate them as much as possible and see if I could hear differences. They are _INCREDIBLY_ close — it stays in perfect alignment. But from what I can tell it is not the same performance — the fingerpicking is very slightly different. It sounds to me as if a banjo player basically made a new recording playing along with JoCo’s source track as precisely as humanly possible.

    I’m curious if anyone else can replicate this result.

  16. Marshall says:

    Found another legal info link similar to the one ChuckEye posted: http://info.legalzoom.com/song-arrangements-copyrighted-23709.html

    So while your arrangement was substantially different enough to qualify as a derivative work, it sounds like you only licensed it as a cover. Your arrangement therefore does not have a copyright of it’s own. On the other hand, if they are in fact using your raw audio stems from Joco Looks Back, there may be grounds to stand on there, though it’s probably not worth it.

    In any case, even if they don’t owe you anything financially, leaving you out of the loop was incredibly rude. Here’s hoping you at least get some new fans out of it.

  17. jason says:

    I think everybody is looking way too much into this.

    He never said he was going to sue. I’m pretty sure he just wants credit where credit is due and should they have to pay royalties for the use, so be it. I don’t think his initial comment was to beg for money, rather to call them out for using it without contacting him at all. That is a dick move.

    JoCo you’re the bigger man here for not jumping the gun and causing a shit storm, you just called it how it was. It’s the misunderstanding of your fanbase that is causing an insane amount of friction on youtube and multiple social media sites. Most of who (like myself admittedly) don’t know a thing about what legal repercussions can be taken in this case.

    Unless I’m mistaken and you really do want to sue. Well.. I would suggest hiring some good lawyers cause Fox and Glee are loaded with top legal reps lol

    Just do the research you need to do, and keep us updated..

    I don’t think Glee stole the exact recording though. Finger picking sounds different to me, but I’m not an expert. For the most part they usually bump the key around to suit the singers voice type/range. In this case though he has a very similar voice type/range as you, so they probably kept the same key and such, but it sounds a bit different to me.

  18. Craig says:

    Hey @worlebird – #whoisjohnnyc could be the new #whothefuckisarcadefire.

  19. Gordon says:

    I have a friend in a band who covered a well known song, but with a very different arrangement. A film company hired a band to make a soundalike to this cover in a trailer. They were able to get a settlement because even though they weren’t the authors of the original, their melody and arrangement was copyrightable. You should be able to get some money for the college fund here. I say go for it.

  20. Paul R. Potts says:

    I take it back. The banjo is the most distinctive part, but after listening to the track together with the properly leveled mandolin and guitar parts I’m dead convinced they are using JoCo’s source tracks.

  21. JoeCovenant says:

    Hi All…
    Heres my hugely scientific experiment…
    Seems plain.

    http://youtu.be/r7OMkXLtvrw
    Here we go…. Coulton and ‘Glee’, side by side….
    It’s JoCo’s backing tracks… and if not… they’ve cloned them!
    So… Glee or not…?

  22. Shan says:

    It’s available at iTunes Sweden here (and you can listen to the preview there to see it’s definitely the ripoff cover):

    https://itunes.apple.com/se/album/baby-got-back-glee-cast-version/id592420108?i=592420188&ign-mpt=uo%3D4

  23. Erik B says:

    You should obviously consult a lawyer, but if you aren’t getting paid for this usage then they are almost certainly violating your copyright. While multiple people can make covers, they clearly adopted your entire composition for commercial purposes, which makes this an unauthorized reproduction and takes it out of fair use. I imagine there was a screw up by their IP licensing team.

  24. Dave says:

    I think you should sue, for the sole reason of forcing Fox to take the legal position that their blatant note-for-note, word-for-word use of your arrangement is fair use. Think of the gains for copyright freedom!

  25. Thomas says:

    It’s bizarre that they’d use the Johnny C part when it’s supposed to be sung by a character named Adam (assuming the wiki is correct).

  26. jason says:

    Even after listening to the side by side it doesn’t sound similar. The picking is different in my opinion.

  27. Shan says:

    From one of Glee’s music producers:

    Alex Anders ‏@alxanders
    Some people can’t see opportunity when it smacks them in the face.

  28. Oliva says:

    Hey! Hypable…a big fan website…wrote an article on this! http://www.hypable.com/2013/01/18/glee-joco-baby-got-back-cover-rip-off/

  29. Brett Glass says:

    One part of JoCo’s version was derivative (the lyrics); the rest was original (e.g. the melody). I believe that JoCo has rights in the portion that was original, which would include the backing track that they used without seeking permission. The “duck quack” could easily have been edited out.

  30. Martin says:

    Assuming they didn’t use your actual recording as a backing track (and re-recorded it), what would prevent them from getting a compulsory mechanical license on this song for their cover, similar to how you got one for the original from Harry Fox?

    The point of a compulsory mechanical license is that it’s compulsory – you do not need to obtain permission from the original artist, even if they have a copyright on it.

    Per US Copyright Law:

    “A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.”

    You clearly made substantial changes to the original arrangement, which makes it questionable whether your substantial re-arrangement could be covered by a compulsory license. There’s quite a bit of ambiguity in that codicil; your style of performance was very different from the original, and so “the extent necessary to conform [the song] to the style or manner of interpretation of the performance involved” could be interpreted pretty broadly. So you’ve got a strong case that your release of the cover under a compulsory license was legitimate.

    That part about not being subject to protection as a derivative work seems relevant here, also. I’m not sure what protections are afforded a rearrangement of the original song that hasn’t been blessed by the original artist as an independently copyrightable derivative work. I suppose that someone who wanted to cover your cover would actually, then, have to get a mechanical license for the original, just as you did – but informing (or indeed, interacting) with you may not be a requirement.

    This, of course, is all the technical stuff about what had to occur legally, which is a completely different question than whether this was a “dick move.”

  31. Brett Glass says:

    P.S. — When you use a work in an audiovisual production (such as an episode of “Glee”), it isn’t sufficient to obtain a compulsory mechanical license. You must also obtain a “synchronization” license. Glee would need to approach Jonathan for this, as it can’t be obtained through Harry Fox.

  32. Martin says:

    Ah I forgot about the dreaded synchronization license. Good point.

    Of course, if JoCo doesn’t have an independent copyright on the arrangement (which he may not be able to get based on the fact that it was done under a mechanical license), the point may be moot.

  33. Brett Glass says:

    Also, from LegalZoom, at http://info.legalzoom.com/song-arrangements-copyrighted-23709.html:

    Derivative Works

    A more substantial rearrangement of copyrighted music constitutes a derivative work. If the new composer does not own the copyright in the original song upon which the arrangement is based, he must obtain permission from the copyright holder to create such a work. The original copyright holder is not required to grant permission, and may charge a licensing fee for such use. Once the arrangement is recorded or written in sheet music, the arranger has a copyright in the new arrangement as a derivative work. This copyright does not extend to the original work itself, and only covers the copyrightable changes or additions the new arranger created.

    Arrangement Copyrights

    Copyright protection exists in an arrangement the moment it is fixed in any tangible form, as by recording the arrangement or writing it in sheet music. As a copyright holder, the arranger has exclusive rights to reproduce, distribute and perform his arrangement. If the arrangement is recorded, either the arranger or the producer of the recording acquires an additional copyright in the sound recording of the song. U.S. law does not require these copyrights to be registered. However, copyright registration creates a record of ownership and allows copyright holders to sue in federal court if their copyrights are infringed.

  34. Martin says:

    Indeed. So the question is, what is JoCo’s cover of “Baby Got Back,” legally speaking? Is it a cover, a rearrangement, or both?

    Without the original copyright holder’s (Sir Mix-a-Lot’s, I assume) permission, it cannot be a rearrangement, legally speaking. It’s just a reinterpretation of the original, and any rearranging that was done is not copyrightable. Mechanical license covers aren’t supposed to be huge rearrangements in the first place. Hm.

  35. Phil says:

    Someone posted Alex Anders’ Twitter handle, buuuut, Adam Anders, Glee’s producer, is also on Twitter. Didn’t see it posted, so: @adamanders. I’ve tweeted to try and connect ‘em, but maybe more people need to start screaming at the Glee guys to have a conversation.

    I would really love to see JoCo + Glee’s creative peeps figure this out.

  36. Michael L says:

    I’m pretty sure JC has a dead to rights case for them skipping out on the sync license for the original parts and the Arrangement copyright, even if they did get this song through innocent means (hearing a non-commercial group perform it, etc).

  37. Martin says:

    “I’m pretty sure JC has a dead to rights case for them skipping out on the sync license for the original parts and the Arrangement copyright”

    The open question is: does JC have an arrangement copyright? Is he even eligible for one? With only a mechanical license and without Sir Mix-a-Lot’s explicit permission to rearrange the song, I believe the answer is probably “no.” Ironically the Glee folks would probably have to obtain a sync license from Sir Mix-a-Lot to perform a cover of JC’s cover.

    Has the episode actually aired yet? I assume it will, reading that wikia page, but if it hasn’t then a sync license of any kind may not be required…yet…

  38. Janice says:

    Also, the episode will air next thursday.

  39. SSteve says:

    Copyrights and mechanicals and syncs and compulsories and monkeys aside, they ripped the hell off of Jonathan Coulton. I just listened to the Glee version and I’m appalled. And I’m not the only one. I do believe they have brought down upon themselves the full and collected fury of the internet the likes of which we may never have witnessed before. For The Noodly Appendage’s sake, they even say “Johnny C”!

    Somewhere in a room, some glee producers and Fox execs are frantically trying to figure out how they’re going to get themselves out of this one.

  40. Brett Glass says:

    This from the US Copyright Office at http://www.copyright.gov/circs/circ14.pdf:

    Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or a new version. A typical derivative work registered in the Copyright Office is a primarily new work but incorporates some previously published material. The previously published material makes the work a derivative work under copyright law.

    To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and formatting are not copyrightable.

  41. Tory BC says:

    Mr. Coulton,

    My family loves your music, and as an artist, I am appalled that a television entity would use its vastly superior size and influence to assume ownership of your intellectual material without even the decency of contacting you.

    I sincerely hope you seek monetary recompense.

    Also, I’m happy to axe murder anyone involved if you can give me an address.

  42. worlebird says:

    @Craig
    Maybe. It seems like #backgate is getting more traction. Ah, well. So much for my 15 minutes of fame *chuckle*. Either way the thing is getting publicity.

  43. filkertom says:

    Yeesh. This is open and shut, JoCo. Your melody, your arrangement: both copyrightable, both licenseable. At the very damn least, they should prominently display your name. Money’s good, too.

  44. Jon Murphy says:

    Get a temporary restraining order to stop the show from being aired next week. This is pretty damn important.

  45. stphntylr says:

    I know there is a youtube side by side already, but I threw the glee version on the left channel and the JoCo karaoke audio on the right. Bounced it, its pretty clear to me.

    https://soundcloud.com/stphntylr/joco-v-glee-baby-got-back?utm_source=soundcloud&utm_campaign=share&utm_medium=twitter&utm_content=https://soundcloud.com/stphntylr/joco-v-glee-baby-got-back

  46. Brian Smith says:

    It’s starting to trend quickly on Twitter.

  47. pdxfoodmama says:

    I love the “itty bitty waste” part!

  48. ecocd says:

    I’m with Tom Smith here. Big prominent “Melody and Arrangement by Jonathan Coulton” on the broadcast might do more than a sweep-it-under-the-carpet settlement. The former will drive Google traffic. Both would be even better.

    Of course, iTunes sales are another matter entirely. That will never circle traffic back to JoCo.