Singer-songwriter Jonathan Coulton probably never thought he would be so linked to Sir Mix-a-lot’s rump-shaking anthem Baby Got Back when he covered the track in 2006. After the popular television show Glee performed a version very similar to Coulton’s, a dispute erupted at the edge of law and ethics: Was it legal for Glee to do an identical cover of Coulton’s arrangement and sound recording; if it was legal, was it unethical for the show to do so without obtaining permission or providing compensation? Madisonian.net writer Mike Madison takes on both issues with a readable analysis.
For those of you who missed it, here’s Coulton’s version:
And here is the Glee version:
Coulton, the writer says, is unlikely to have any significant legal recourse, if at all. Coulton acknowledged he used the Harry Fox Agency, which means he obtained a license, and that royalties from his version of the song would go to the original artist. Pursuant to such a license, however, the arrangement falls into the public domain. Thus, Coulton has no copyright infringement claims emanating from his arrangement, Madison argues. Even if Coulton could argue the show stole his sound recording (i.e. the actual sounds as actually recorded) pursuant to Section 114 of the 1976 Copyright Act, he could make at best a narrow claim. Further, sound-alikes are not actionable under Section 114; though the original version of the episode used one of his distinct lines (“Jonathan C’s in trouble” replacing “Sir Mix-a-lot’s in trouble”), it would be difficult to prove Glee tapped his actual recorded sounds.
The ethical concerns, however, are more complex. Madison dons “Lockean goggles” to see that artists should profit from their labors. Coulton did not consent nor receive compensation, therefore, Glee’s producers should remedy this ethical breach, Madison says. This argument seems to fail, though, because Coulton relies on voluntary contributions from fans for his music. Madison then puts on his “reciprocity goggles” to take the view that part of a functioning “gift community” like Coulton’s is to reciprocate by returning material to his audience — or at the least, passing on the gift taken from the community. Glee did neither. This argument also fails in a sense because Coulton never technically got permission from Sir Mix-a-lot, so why should the producers have to get permission from Coulton?
Madison concludes it is unfair to penalize Coulton for the way he chooses to deliver his music at a time when technology is shifting and artists release their works more often in open source fashion. With music’s history as a derivative art, it’s unlikely and counter-intuitive for performers to make it hard to get their works solely to preserve a future right to make claims against secondary users.
There’s an easier resolution and it’s, perhaps, disappointing that Glee’s producers didn’t take it: Call Coulton from the outset. Based on his artistic practices and noble response, this all could have been nipped, baby, in the way back.
And in the spirit of giving credit, here’s the Sir-Mix-a-lot original — which, depending on the legal environs may be NSFW: