Post authored by FMC Communications Intern Olivia Brown]
Like it, or despise it with the white-hot fury of a thousand collapsing suns, Fox’s show “Glee” remains a high-profile musical source for many, especially in the under-50 demographic. Its cover songs routinely show up on the iTunes charts, and as of last February, the cast of “Glee” was the eighth-best-selling digital artist of all time, according to SoundScan. They have also far surpassed the record for most charting singles on the Billboard Hot 100, which formerly belonged to Elvis Presley.
“Glee” is powered by covers, probably more so than its actual plot. People expect new arrangements and interpretations, and then snap them up on iTunes. But what happens when those attention-grabbing and sales-generating arrangements were not actually created specifically for the show? Does “crowdsourcing” arrangements — that have a good chance of charting — from musicians without permission or attribution run afoul of copyright?
“Glee” has a history of using others’ original arrangements of songs without acknowledging their original source. The most recent instance of this happening involves Jonathon Coulton, a musician with a large internet following. Some time ago, JoCo, as his fans call him, completely reworked Sir Mix-a-Lot’s classic “Baby Got Back.” His cover and “Glee’s” version are undeniably the same, but Fox has not deigned to so much as publicly credit JoCo for his arrangement.
As Coulton wrote on his blog:
“[they] say that they’re within their legal rights to do this, and that I should be happy for the exposure (even though they do not credit me, and have not even publicly acknowledged that it’s my version — so you know, it’s kind of SECRET exposure).”
This isn’t the first time “Glee” has run off with someone’s arrangement. As Daily Dot points out, the show has been accused of “borrowing” from the University of Oregon a cappella group Divisi (Usher’s “Yeah!”), Greg Laswell (Cyndi Lauper’s “Girls Just Wanna Have Fun”), and DJ Earworm (a mashup of Rihanna/Nicki Minaj’s “Fly” and R. Kelly’s “I Believe I Can Fly”) at various points since 2011.
So how does copyright apply to arrangers? Here, the lines are fuzzy. The ability to copyright an arrangement is not set in stone and is often decided on a case-by-case, publisher-by-publisher basis. (Keep in mind that there are *two* copyrights in music — the composition copyright [think notes on paper] and the sound copyright [think music captured on tape or hard drive.])
If an artist like JoCo wants to record a cover and sell it in the marketplace, they would typically seek a compulsory mechanical license from Harry Fox Agency. However, the right to create and sell derivative works from an existing piece of music — such as rearranged or substantially rewritten cover versions of songs — is not included in a compulsory license. An artist can only copyright a new arrangement in a couple different scenarios: if the original song is in the public domain, or if the original publisher gives the artist permission to do so. In many cases the publisher will allow an artist to release a rearranged version of a cover, but the publisher will retain the copyright, while some publishers are more lenient and allow the re-arranger to have a stake in the copyright. The bottom line is that, generally, you have to bargain with the original publisher if you want to own the rights to an arrangement of a non-public domain song.
In Coulton’s case, his arrangement of “Baby Got Back” included an entirely new melody. There is a possibility that Coulton (or any cover artist) could register a copyright for the completely original and new parts of the arrangement — the new melody in this case — separately, as opposed to copyrighting the entire arrangement, inclusive of lyrics. However, if Coulton did not do this prior to “Glee’s” use of the arrangement, he would not be eligible for statutory damages (you know, cash money) in court — regardless of whether he has a case.
Coulton would have a more clear claim if “Glee” had used the sound recording of his version of “Baby Got Back.” The moment his arrangement was “fixed” — i.e., recorded, he has a claim over that captured performance. However, as the show only used his arrangement, the protections are less defined.
Regardless of copyright, “Glee’s” refusal to acknowledge the original sources of some of their arrangements is bad business. It would not hurt their sales, ratings or public opinion to recognize the artists whose arrangements they have used. And most importantly, acknowledgment from a huge media corporation would give the artists whose creativity has been exploited for profit a bit of publicity. This seems like the least they could do even if the arrangement itself isn’t protected under copyright. The networks are notoriously stringent about enforcing their own intellectual property. Why not respect the expressions of others… if not through copyright, then at least through acknowledgement?