The Song Remains the Same. It’s Supposed to, Anyway.

BrozikOver at the Daily Beast today is this story:

Matthew Panzarino [of The Next Web] notes the similarities between the version of “Baby Got Back” that appeared on Glee in October and its cover by the Internet musician Jonathon Coulton: “What appears to have happened here is that a music producer on the show found the song and thought that it was just an ‘internet musician’ that they could cop it from and no one would be the wiser. Unfortunately, Coulton is an immensely popular performer and almost universally beloved on the Internet.”

The Daily Beast continues, “Even Coulton is unsure which rules apply,” and quotes Coulton (from his own site*):

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.

But hasn’t Coulton (whom this writer has seen perform with They Might Be Giants, it might be noted, though that fact isn’t what might charitably be considered even remotely relevant) effectively just admitted to exceeding the statutory license he “bought”? I think he just might have.

Section 115 of the Copyright Act (“Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords”) provides, in relevant part, that, in the case of nondramatic musical works, the exclusive rights to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. And one of those conditions—arguably the most important condition besides payment of royalties—is this:

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. (17 USC 115(a)(2).)

 “The arrangement shall not change the basic melody of the work,” says the applicable law.

“I wrote a new melody for it,” says Coulton.

Um…

*If you do visit Coulton’s site and post about this matter, do not read the comments, unless you want to be entertained by some honest-to-goodness uninformed, unsolicited opinions.

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