Copyright & Trademark in the Geek World, Part 1: Geeks have Coulton’s Back

If you’ve been paying attention to geek-related news, you may have read about the following stories:
*“Glee” used a version of Jonathan Coulton’s “Baby Got Back” without credit, payment, or other acknowledgment.
*Games Workshop had Amazon take down an indie book because the author used the term “Space Marine” in the title.

These stories provoked outrage among various groups of fans and other folks on the Internet: it’s evident that *something* isn’t right, or fair going on in each of these situations. I see the problems as related to a) the law, and b) how legal practices work, e.g., tends to favor those with money.

The Coulton event (2) primarily deals with copyright. The Games Workshop event primarily deals with trademark. These are related subjects, but they are quite different legally. Popular articles/accounts often confuse the two. I’ll talk about each in turn.

Let’s look at the copyright issue. Copyright is my area of study. My favorite copyright attorney once described copyright to me as “arcane” (2) and “labyrinthine.” It can be confusing, understood by few and overly complicated. Over time, it’s played a bigger and bigger role in people’s everyday lives. Whereas in the 70s, I’m told, you would have to exert yourself to find a story about copyright in the news, today I go through several a day. So, here’s a quick and dirty look at the situation:

COULTON & GLEE

Jonathan Coulton probably used what’s referred to as a statutory compulsory mechanical license to cover Sir Mix-a-Lot’s “Baby Got Back” a few years ago. Glee then copied that arrangement for an episode. What’s that all mean?

So, copyright covers several uses of a work. Absent an exception (3), such uses are the exclusive right of the copyright holder (4). One of those rights is the creation of a derivative work, which to keep things simple we’ll say a work based on an already existing work. However, once upon a time Congress cared about making sure that copyright holders couldn’t completely lock down content. Cover songs have a special place in copyright law (5). Basically, the copyright holders of a song (6) cannot stop someone from making a cover song provided the person making the cover song uses the statutory compulsory mechanical license. Statutory = in the actual statute. Mechanical = making a “mechanical” reproduction of the song (the term is from sheet music days, but basically means making a copy). Compulsory = the copyright holder cannot deny this use if the law is followed. The person making the cover has to pay a compulsory rate to the song writer, the amount of which is determined by the Copyright Royalty Board every few years. The total amount is based on things like the number of copies sold, the number of people who hear the song, and so on.

So Jonathan Coulton called up the Harry Fox Agency (the group that usually handles the compulsory license) and got a license to make a cover of Baby Got Back.

So if you’re not lost yet, now it gets complicated. =P

While the compulsory license does allow you to create a reinterpretation of the work, it does not allow you to change “the fundamental character” of a work with your reinterpreation (which can lead to legal fun), and more on point, the statute (17 USC 115(a)(2)) explicitly does not convey additional copyright protection to the new arrangement without consent of the copyright holder. So unless Coulton got permission from the copyright holder of Baby Got Back, then he doesn’t have copyright protection for his arrangement.

So, Glee basically got the same or a similar license from the Harry Fox Agency, and since Coulton didn’t have copyright protection in the arrangement, they could legally use the arrangement without legal hassle.

He might have some protection if they actually used his tracks, though, because unlike the arrangement, those specific recordings ARE probably protected by copyright. And that’s probably what he’s looking into.

The other thing to remember is this: in most situations, license trumps copyright law. If the specifics of Jonathan Coulton’s license come into play at all, a lot of the legal issues can’t be figured out by looking at the statute.

So… is what Glee did legal? Maybe, if they didn’t use the exact recordings (which is in dispute). Is it fair and/or ethical? Heck no. This is one of those disconnects between law and fairness. Coulton should be getting credit for his arrangement without having to shame Fox.

1. …The Coulton Event is the name of my Paul & Storm cover band… *drumbeat*
2. Definitely arcane. The next time your party wizard starts going off about magic, pretend he’s talking about copyright and RP accordingly.
3. There are many exceptions. Don’t think that copyrights are the be-all and end-all; these exceptions are important.
4. The copyright holder is not necessarily the author/creator. Keep that in mind.
5. And the Abyss.
6. And songs can have lots of copyright holders. The song writer, the lyric writer, the performer… it takes a village, people.

Post a Comment

*Required
*Required (Never published)