The Daily Reckoning

A crucial feature of the evolution of the social order is the capacity to use what’s good and improve on it, and throw out what’s bad. But people have to be free to do this. The government and lots of industry groups don’t think they should be.

A recent case underscores the point.

FoxTV recently used what’s good, putting Jonathan Coulton’s remix of Sir Mix-A-Lot’s “Baby Got Back” on its show Glee. Is this stealing? Is this wrong? Coulton apparently thought so.

Coulton complained on Twitter that Fox “never even contacted me.”

There seem to be a couple of assumptions being made by Coulton and others commenting on the case: one about copyright law and another about right and wrong.

The copyright issues are laid out in a Slate piece, but somewhat mangled:

“An arrangement like Coulton’s is technically called a ‘derivative work,’ because it is based on a pre-existing ‘original work’ (Sir Mix-A-Lot’s original rap song). In order to create his arrangement and sell it, Coulton obtained a compulsory (or ‘statutory’) license from the copyright holder, the Harry Fox Agency. Coulton himself does not own the rights to Mix-A-Lot’s lyrics, of course, but according to the U.S. Copyright Office, ‘the copyright of a derivative work covers… the additions, changes, or other new material appearing for the first time in the work.’

“Even if Fox got permission for the Glee cover of ‘Baby Got Back’ from Harry Fox (which they undoubtedly did), they are also required to seek permission from Coulton for use of his ‘additions’ — chords, phrasings, rhythms, and so on — that make his arrangement unique (and choirboy friendly). Of course, he’d have to prove in court that the two arrangements are, in fact, identical, but to our (admittedly nonexpert) ears, there’s very little question. Fox owes Coulton at least an apology — and probably a check, as well.”

This analysis is not quite right (I believe): Glee‘s cover of Coulton’s version need not be identical to infringe on his copyright; after all, Coulton’s own cover of the original version was not identical to it, yet still required a license in order to avoid copyright infringement.

The assumption here is that Fox has infringed copyright and has done something wrong — though it’s not clear exactly what the wrong was: Coulton’s complaint implies that Fox’s mistake was not contacting him first; others imply that using the song without giving him attribution was wrong (see, e.g., the comments by Andy Ihnatko in the most recent episode of This Week in Tech [TWiT]). Mike Masnick of Techdirt implies Fox has been a “bad actor” here.

As for the copyright issue: As Slate notes, Glee very likely already got a license for use of the original, just as Coulton himself did. I am not clear whether they might have also acquired a compulsory license for Coulton’s arrangement without Coulton himself being contacted, but even if they did not, as suggested on TWiT, their tactic might be to use the song and wait for people to ding them afterward, at which time they would pay the requested royalty.

In any case, copyright is itself wrong, so even if there was copyright infringement here, that does not imply that anything “wrong” was done.

As for complaints that Coulton did not receive attribution: Well, as far as I know, the Glee episode featuring the song has not even aired yet, so it’s not yet known whether there is attribution in the credits.

But in my view, even if there was no attribution credit given, there is still nothing wrong whatsoever here. It’s not as if the producers of Glee are being dishonest and claiming to have come up with the arrangement on their own; there is no “plagiarism” going on here.

In the TWiT discussion about this — which, ironically, follows a discussion of how a prosecutor’s use of copyright law threats against Aaron Swartz drove him to suicide — Andy Ihnatko bizarrely claims that this has somehow harmed Coulton, even though Glee is seen by millions and this is no doubt great PR for the marginally known Coulton.

Why? Because if Coulton performs his own version of the song in a concert, people might think he copied it from Glee. Even… though… we all know that they copied it from him.

I don’t get this reasoning. Does Ihnatko think only he knows about this? He is discussing a public story. That is, Coulton’s authorship of the version is already publicly known. Coulton had no trouble demonstrating this. (This is also one reason why copyright proponents’ worries about plagiarism are off-base. Not only does plagiarism have nothing to do with copyright infringement, but plagiarism is not a major problem; anyone plagiarized will easily be able to prove they authored the work first.)

In a free society with no copyright law, in my view, there is no ethical or moral obligation whatsoever to ask permission of an artist to use or copy or reuse or remix their earlier work, nor even to provide attribution credit. The only obligation is to be honest: to not dishonestly claim original authorship. But merely singing or performing someone else’s song does not mean the singer is claiming to have originated it.

As for attribution: Sometimes it’s called for, according to context, just as footnotes are expected in a law review article but not in an email to a friend. But this is more a matter of scholarly protocols than morals.

Copyright law is not only evil for the direct damage it does to individual lives, but because it has distorted our entire culture and makes people think of copying as wrong. It is not wrong at all. Copying is good. Learning is good. There is nothing whatsoever wrong with learning, emulating, remixing, and competing. Copyright law has confused the whole world, deluded almost everyone into thinking something harmless and natural is somehow icky and bad. How sad.

The whole history of the rise of art, from the ancient world until the 20th century, was all about learning from others, copying them, and improving on their work. That’s how progress occurs, not only in art, but in technology, literature, finance, and in the whole of civilization. This culture of learning is making a huge comeback, despite government’s attempts to stop it. That’s the same thing as saying that freedom itself is making a comeback.

Sincerely,
Stephan Kinsella

Original article posted on Laissez-Faire Today 

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  • Generic Person

    So you admit that we:

    A) live in a society that HAS copy right laws and

    B) people break copy rrite frequently, including the producers of Glee and then

    C) try to explain it all away with unproven phrases like “in any case, copyright is itself wrong”

    Copy right is wrong? Why? Do you hold any copy rights or patents? If you did, would you feel otherwise?

    I also can’t abide by this ending: “The whole history of the rise of art, from the ancient world until the 20th century, was all about learning from others, copying them, and
    improving on their work…”

    Academia has always had somewhat looser rules, among them “fair use” laws, which allow students an opportunity to LEARN by copying limited portions of copy right protected material. What Glee did here is escape paying someone to arrange their own version of a song…so they PROFIT from someone elses’ work at no cost to themselves. Big problem here if you can’t tell the difference between a learning exercise vs. making money (or in this case, avoiding spending money). Glee apparently didn’t use this song for either LEARNING or IMPROVING…so all we’re left with is copying for their own profit.

    It’s fine if you don’t like copy right laws, but please give a sound reason and logical arguments as to why they are “evil.”

    You like freedom? Then defend the freedom of creators to own the rights to their work without parasites enriching themselves thru stealing. And let’s call it that, since that’s what it is. Someone took an item lawfully owned from another person/entity without consent.

  • Mark

    @305910663123dc8e9ad44d0be504f69e:disqus

    I have a CD of music by Johann Sebastian Bach which is nothing but arrangements of works by Antonio Vivaldi and Alessandro Marcello. George Frederic Handel (composer of “The Messiah) regularly “borrowed” (as they called then) from other Baroque composers.

    Where Bach and Handel (who are considered to be among the greatest composers) “parasites” as you say?

    As a matter of fact, those whom Handel “borrowed” from considered it an honor that someone of Handel’s fame and stature would use their works.

  • Generic Person

    @Mark, you bring up some interesting points about how artists may have viewed their work…hundreds of years ago in other countries. Are we to take that as the final answer on contemporary American legal protection via copy right?

    How many Baroque composers have you talked to lately? Are you sure “they considered it an honor” when more famous musicians borrowed their work? If so, what was the reason they were happy to have well-known composers use their work? Was it because a famous musician playing their work (or arrangements thereof) might fulfill the same role of today’s musical distribution and marketing companies? Free publicity is a form of compensation, and if the original composers were happy with that, we’ll call it a fair exchange.

    If they weren’t happy with it, I guess they just had to suck it up. Why would they be happy if someone borrowed their work and they never received any fame or fortune for it? Honor is nice, but it doesn’t put food on the table. I haven’t talked to any unknown composers lately, but I’m going to go out on a limb here and suggest they were hoping to land a job or wealthy patron as a result of all this borrowing and copying.

    So in conclusion, let’s keep in mind that we are a nation of laws, not Baroque composers hoping for the Renaissance version of YouTube.

  • DanMcD674

    You neglect to mention that Glee isn’t just a TV series, it’s a revenue stream for Fox. All of the songs on Glee are cover versions, and then the network turns around and sells them on iTunes and makes millions off of them. As the composer of the music for the version that Fox/Glee is peddling, Coulton is entitled to royalties, just as Sir Mix-A-Lot is entitled to royalties for the lyrics. If Fox doesn’t licenses Coulton’s version, they’re keeping money to which he is legally entitled.

    Moreover your claim that “we all know that they copied it from him” is incorrect. Sure, Coulton’s fans and web-saavy nerds know it’s his version, but Glee is a mainstream show and this story didn’t make the mainstream news (certainly Fox isn’t going to report it.) Even if it had, Glee’s primary audience, tweens and teens, doesn’t watch the news. They have no idea who Jonathan Coulton (or Sir Mix-A-Lot, for that matter) is, and don’t care. If they were to hear the Coulton later on, they absolutely would assume that Coulton covered Glee, and not vice-versa.

    Lastly, your entire concept is heavily flawed. “Copying is good. Learning is good. There is nothing whatsoever wrong with learning, emulating, remixing, and competing. Copyright law has confused the whole world, deluded almost everyone into thinking something harmless and natural is somehow icky and bad.”

    There is a difference between learning from something someone else has done and building on it, and taking it, sticking your own name on it, and claiming it as your own. the former is art, the latter is theft. There are many “schools” of art that throughout history have been comprised of multiple artists working in a similar manner or form; but Mozart would have never directly lifted from Beethoven and called it his own. It’s an insult to artists everywhere to insinuate that there’s nothing wrong with doing so.

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