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Confession time: I am a total sucker for acoustic covers of non-acoustic songs. Obadiah Parker’s cover of “Hey Ya” by OutKast is life-changing. If you’ve never heard it, seek it out from a legal source and enjoy. I’ll wait.
Welcome back. Now clearly, Obadiah Parker created his brilliant version legally through a license. He arranged a deal with the rightsholder(s)–OutKast and its record company in all likelihood–and then he gets to make the song, and the rightsholders get a cut. The rightsholders get a bit of extra cash; the world gets to finally appreciate how existential that song is; Obadiah Parker never owns “Hey Ya.” But does he own the lovely shaker-egg interpretation of “Shake it like a Polaroid”?
That very question is being asked by Jonathan Coulton after Glee‘s winter premiere. Coulton’s song is “Baby Got Back,” which turns the 1992 Sir-Mix-a-lot jam of quite possibly the century into a smooth love song over… I think a banjo (I’m a law student, not a music critic) that would be at home on any lite mix radio station. Again, feel free to seek it out and savor the glory. Legally, please.
And that’s the problem. The January 24th episode of Glee essentially stole it. From the banjo-strumming to the “L.A. face with an Oakland Booty” harmonizing to the silky tones of the lead singer; it’s the same song. (Okay, so the Glee version cranks up the silliness factor with an outro of “Booty booty booty.”) Compare for yourself here. Or, check out where a fan who apparently knows more about music than I do breaks down whether the quack that Coulton uses to cover up an expletive in the original was or was not present in the Glee recording. Either way, Coulton was not amused.
And unfortunately for him, he is also out of luck. Fox responded, essentially saying “Ha,” and Coulton has revealed that he had bought his right to record his version through a compulsory license. What’s that, you ask? A compulsory license for a nondramatic musical work is granted through 17 USC § 115. If you’re thinking “derivative work” like I was, sorry. While a derivative work, when done legally, has its own copyright protections, the compulsory license specifically removes all works created through the license from the definition of derivative work. Long story short, Coulton probably does not own a copyright to even his arrangement of the song–all rights remain with the original rightsholders. Those rightsholders can hand out other licenses if they want, and those licensed works can sound exactly like previously licensed works. Coulton told Wired that he was looking into legal recourse, but depending on the actual terms of his agreement with rightsholders (compulsory licenses can be altered by the parties), he might just have to take it.
Glee therefore is in the legal right. And they should know. This isn’t the first time they’ve lifted a cover. A cover of a cover, who cares? But let’s be honest, sometimes the covers are what actually make the song. See, e.g., Johnny Cash’s cover of “Hurt” by Nine Inch Nails. So even though arranging Coulton’s version of “Baby Got Back” probably took as much if not more creative talent than the original, his work has no copyright protection at all. Don’t mind me, I’m just going to lock myself in my room and listen to the a cappella version of “Somebody That I Used to Know” by the Pentatonix on repeat. I’ll be fine.
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