Reply To: JoCo in the Media
Political comments aside, the Public Knowledge article @BrettGlass links to above actually seems pretty accurate re: the murkiness of the law involved.
(DISCLAIMER: I’m no lawyer, and I’ve only briefly discussed the topic with Jonathan; I speak neither authoritatively nor on his behalf, only via my own limited experience with the situation and similar ones)
The problem is that, as Brett says, there’s lots of different factors at work here. But brushing aside all the questions of what’s “right” ethically/morally, it basically boils down to two different fundamental questions regarding music licensing.
GET READY FOR A REALLY, REALLY LONG POST…
Some background (some of this is restating what Brett says above): if someone (say, the producers of Glee) wants to use an existing song in a visual medium (like an episode of Glee), they must obtain one or two different types of licenses:
- Synchronization (“sync”) license: this license music be secured to use the composition itself–music and lyrics. Specifically, it’s the right to “synchronize” said composition to the visual media output. This license is secured from the composition’s copyright holder(s).
- Master use license: this license must be secured in addition to the above sync license if you wish to use a specific recording, or elements thereof, of said composition. This license is secured from the owner(s) of the master recording. These are often not the same people as the song copyright holder(s).
So the fundamental questions at hand are:
- Is Jonathan owed for the synchronization license to his arrangement of “Baby Got Back”?
- Is Jonathan owed for the master use license to his recording of “Baby Got Back”?
Question 2 is far easier to answer: if Glee used his original recording or portions thereof in the episode (which evidence currently indicates they did), they were required to obtain a master use license from him (which they certainly did not). STRICTLY IN MY OPINION, AND ASSUMING THE EVIDENCE IS CORRECT, it would seem to me that Jonathan has a strong case that, essentially, someone owes him money for this. This is only compounded by the fact that they are also selling their version online.
Question 1 is…far, far murkier. This is because there’s a lot of different elements at play. Without going into SUPER painful detail, here’s some of the key issues:
Compulsory license: Jonathan has stated that he obtained a compulsory license to record and sell his version of “Baby Got Back”. In simple terms, this type of license says “I pay the copyright owners a certain pre-established fee, and I am allowed to re-record and release said song without having to go through a lengthy negotiation process.”
The problem is, this type of license has restrictions: specifically, the new recording can’t fundamentally alter the nature of the original song. The relevant portion of the law, as excerpted in the Public Knowledge article:
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.
Jonathan’s version clearly makes fundamental changes to the original–adds a new melody, alters the tempo, and puts in entirely new background music in a markedly different style. As such, the license Jonathan secured may not actually be applicable, since his version really more qualifies as a…
Derivative work: Excerpted from the copyright law:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement…sound recording…or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
Jonathan’s version certainly meets this definition. The problem is, the original copyright holder(s) must authorize the creation and/or distribution of any derivative work. This type of permission is not granted by the compulsory mechanical license; therefore, there is a legal question as to whether Jonathan retains any ownership of his derivative work.
TO BE CONTINUED…