Broken Copyright: Jonathan Coulton Is Actually Infringing Copyright, But Glee Is Not

from the how-messed-up-is-our-system dept

Want to know just how messed up our copyright system is, and just how out of sync it is with the way people feel about copyright and what makes sense? Just know this: between Jonathan Coulton and Fox, concerning the dispute over Fox's Glee using Coulton's rendition of Baby Got Back on their show -- you could make an argument that Coulton may have actually exposed himself to more copyright infringement problems than Fox did.

Allow me to explain. When the whole thing first broke, we thought that Coulton took the right approach in basically just telling his fans about it. Then, when we heard that he was exploring legal issues with his lawyers, that actually seemed like the wrong approach to take, even if he was upset about things. According to various reports, right before the show aired, Fox finally reached out to him and explained that what they did was perfectly legal (probably true) and that Coulton should be happy for the exposure. Coulton's response was quite reasonable -- asking if that meant Fox would be crediting him. Since the answer was no, the promise of exposure rings a bit hollow.

That said, it's not entirely hollow -- because of Coulton's ability to whip up (completely reasonable) righteous indignation about this from his fans via social media. As he told Mashable in the link above:
"They were right. I did get exposure, but it didn't come from anything they did. It was sympathetic outrage on Twitter, and bloggers and journalists talking about how crazy it was."

[....] "Sometimes I forget that Twitter is something beyond just being snarky at the Oscars. All of a sudden something happens and you remember that this is an amazing, powerful tool." Coulton says. "My fans have a keen sense of justice, and this idea that we should be attributed for our work. People who are of the Internet realize that attribution is what we trade on."
And, of course, he's taken it a step further as well, re-releasing his original song on iTunes, but calling it Baby Got Back (In the Style of Glee) and promising to donate the proceeds to two charities associated with Glee: The VH1 Save the Music Foundation and the It Gets Better Project. Song sales are doing well, with Coulton's version climbing the charts, while the official Glee version of the song is riddled with one star reviews from his supportive fans (even though he's not encouraging people to do this) and is nowhere to be found on the charts.

Still, what strikes me as perhaps most interesting about all of this is that as you explore the legal issues, it is entirely possible to come out with an argument that says that if anyone is infringing on copyright here... it's Jonathan Coulton. Let me be clear on this: I am not saying that anyone has directly accused him of this, nor am I suggesting (in any way) that he should be accused of this. I'm just showing how misaligned the law is with what most people think of as a sensible regime today. So why might Coulton be in trouble? As he's noted repeatedly, he paid the compulsory license to cover the song via the Harry Fox Agency. Doing so means that he agreed (pdf) to abide by Section 115 of the Copyright Act.

What's that? Well, check it out here. Here's the relevant part for our discussion:
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.
Previously, we and many others had suggested that the changes that what Coulton had made could possibly be protected as unique creative works. However, he more or less gave up that claim when he used the statutory license, rather than doing a direct deal with Sir Mix A Lot, or whoever else holds the rights on the song. That also means, however, that Coulton did not live up to Section 115 and his cover, in all likelihood, violates the original copyrights, because the license he got does not cover the very different arrangement and melody he created.

That is, by any normal measure, insane. But that's the law. This whole situation has (ridiculously) exposed Jonathan Coulton as a "pirate" and Fox as being perfectly within the law. And that just seems silly.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Rikuo (profile), Jan 30th, 2013 @ 7:41am

    "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. "

    So let me get this straight. Copyright law is supposed to be about promoting the creation of new works. No-one creates in a vacuum, thus someone else's work is always used to create another, even if only in tiny portions. So when someone goes out of his way to take a work and change it, thus creating a new work...he is in the wrong.

    Sorry, guys, gotta go now. I have to tell LittleKuriboh that he's a bastard for taking the Yugioh franchise and dubbing over it, for creating the Abridged Anime phenomenon, for promoting Yugioh long beyond its airdate and for helping charities around the world thanks to the fans he's made doing all of that. Nope, he dared to try and make something and for that, he must be hanged.

     

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    Aria Company (profile), Jan 30th, 2013 @ 7:45am

    "This whole situation has (ridiculously) exposed Jonathan Coulton as a 'pirate' and Fox as being perfectly within the law. And that just seems silly."
    Silly? More like frightening.

    Fox can (ab)use this law because its representatives, the MPAA, made damn sure they could.

    Let's just hope Coulton never releases this song on a TV larger than 55" with 6 or more speakers.

    The livelihood of artists would be threatened with starvation!

    /Sarcasm Version 2.1 Release 6

     

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  3.  
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    silverscarcat (profile), Jan 30th, 2013 @ 9:10am

    Re:

    I dunno man...

    He's playing Freeza right now, do you really want him to blow us all up?

     

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    Ninja (profile), Jan 30th, 2013 @ 9:16am

    rather than doing a direct deal with Sir Mix A Lot, or whoever else holds the rights on the song

    Hopefully EMI isn't the owner of the last 33,33333% or he'll be in a ping-pong game between their sales representatives and their copyright team!

     

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  5.  
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    Anonymous Coward, Jan 30th, 2013 @ 9:58am

    But wouldn't that mean...

    That the work he created just wasn't covered under the license he purchased because it didn't fit the definition provided in the license under the law. Since the work that was actually created is more transformative, wouldn't that just mean he purchased a license that he didn't need and the license would be ruled irrelevent if some lawsuit arose where he claimed that it was legal due to the license? That shouldn't mean that the other factors do not apply to it once the license is no longer applicable. Right?

     

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    Anonymous Coward, Jan 30th, 2013 @ 10:04am

    This is incredibly lame. Corporate favoritism at work.

     

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  7.  
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    S. T. Stone, Jan 30th, 2013 @ 10:05am

    Re: Re:

    Hell no — Ee-arth’s where I keep all my stuff!

     

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    Rikuo (profile), Jan 30th, 2013 @ 10:10am

    And now for some reason, I don't have access to the Insider Chat. Weird. I paid for the month's access to it only a week ago.

     

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    Jeffry Houser (profile), Jan 30th, 2013 @ 10:11am

    Sounds like may be guilty of contract violation; not copyright infringement

    The way you describe it; it sounds like he may be guilty of a contract violation; but wouldn't that be different than a copyright violation?

    The clause you point out relates to the licensing contract w/ Harry Fox Agency, not copyright law. Correct?

     

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    silverscarcat (profile), Jan 30th, 2013 @ 10:13am

    Re:

    Looks like a server issue to me.

     

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    Ninja (profile), Jan 30th, 2013 @ 10:13am

    Re:

    Seems td is undergoing a hiccup, I'm having trouble to access the site.

     

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    Rikuo (profile), Jan 30th, 2013 @ 10:14am

    Re: Re:

    Yeah, its what I think as well. A couple times today, I've gotten 404s and "There are no stories" when I click on the main page. Ah well, I'm not hopping mad about it...for now.

     

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  13.  
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    Internet Zen Master (profile), Jan 30th, 2013 @ 10:25am

    Re: Re: Re:

    Here's the point system for kills:

    >Hollywood-employed copyright lawyer: 5 points
    >RIAA/MPAA executive: 10 points
    >Chris Dodd: You win.

     

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    Suzanne Lainson (profile), Jan 30th, 2013 @ 10:27am

    Wouldn't reform make each less accountable to the other?

    Wouldn't copyright reform just reduce the need for either Fox or Coulton to have to buy licenses from or give credit to anyone involved from beginning to end?

    In other words, let's say there's copyright reform. It wouldn't help Coulton in any way in this particular dispute, would it? All it would do is eliminate the money that goes to the current copyright holders.

    I'm still having trouble grasping why Coulton thinks he's been a victim here any more than anyone else who thinks their ideas have been copied or mimicked.

     

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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:28am

    Re: But wouldn't that mean...

    Heh, yeah, I've been trying to figure that out all morning... I think the answer is "whoever has the better lawyer"

    There's a really weird question here as to whether you can infringe on something that's unauthorized... Even if you set aside the s.115 conditions, it's hard to figure out.

    Say we forget s.115 and talk about, as an example, an unauthorized remix of a recording -- highly creative but not to the degree of being transformative (still rooted firmly in core aspects of the original work), so simply an infringing derivative work.

    If someone comes along and copies it exactly, but gets authorization. Is there a copyright in the remix for them to violate? Probably not, since the unauthorized derivative work is not recognized... But -- what if the original remixer settles the licenses after the fact, and the original remix becomes legal? Is the second remixer now infringing on the first? If not, does that mean the second remixer could have simply downloaded the original remix, gotten appropriate licenses, and claimed it as their own -- all perfectly legally? Would the first remixer now be infringing on the second because they got their licenses later, even though they created first? That would be rather bizarre... Conversely, if the second remixer becomes an infringer on the first, what exactly was the status of the first remix before that? Was it put into the public domain and then taken out? That's weird too...

    Ah, copyright :)

     

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    ChrisB (profile), Jan 30th, 2013 @ 10:29am

    Re:

    > This is incredibly lame. Government favoritism at work.

     

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    Anonymous Coward, Jan 30th, 2013 @ 10:29am

    Re: Sounds like may be guilty of contract violation; not copyright infringement

    I think you're partially right here. But I think this is the thinking process of the article:

    1) His work doesn't exactly fit the contract

    2) His work is not part of the contract deal

    3) His work is an unliscensed copy of the work and thus copyright infringement.


    My question to propse is how would a fair use argument do? My guess is that his use of the full lyrics plus making money off it would invalidate any fair use claim.

    Also, wouldn't the penalty be exorbant per copy sold if they were to claim it as copyright infringement? I'd be willing to bet that even at the $120/song from the NZ article earlier (yea I know that's a different country/court) would add up to a pretty penny...

     

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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:31am

    Re: Re: Re:

    Sorry everyone, we are indeed having some weird site issues this morning... we're getting it sorted out as quickly as possible. Things should be back to normal soon!

     

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    Atkray (profile), Jan 30th, 2013 @ 10:31am

    Re: Sounds like may be guilty of contract violation; not copyright infringement

    You can't ruin some one with a contract dispute. You can with copyright.



    See also Carmen Ortiz.

     

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    silverscarcat (profile), Jan 30th, 2013 @ 10:32am

    Re: Re: Re: Re:

    How many points are DoJ stooges worth?

     

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  21.  
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    Michael, Jan 30th, 2013 @ 10:35am

    Fox

    So Fox can use the compulsory license to cover a song that may have been illegally created? I wonder what it would mean for Fox if Coulton was found guilty of copyright infringement. The compulsory license Fox paid to use his work would have to be invalid if he could not legally license it.

    It feels a bit to me like a case of "receiving stolen intellectual property" (please excuse the "stolen" part of that). With actual property, someone that may have purchased something that was stolen is going to have to return it to the original owner, will not get their money back, and could be liable for criminal charges.

     

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  22.  
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    Colin, Jan 30th, 2013 @ 10:36am

    Fox finally reached out to him and explained that what they did was perfectly legal (probably true) and that Coulton should be happy for the exposure.

    So do I have this right?

    Fox: "Dirty pirates sharing our work for free, giving it exposure?!? Attack!!!"

    Fox: "Shut up, Coulton. We're sharing your work for free, giving it exposure. You're welcome."

    Uh....

     

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    Yakko Warner (profile), Jan 30th, 2013 @ 10:37am

    How is FOX not wrong then?

    If Coulton's song is infringing, how is Glee's song not infringing? Is a cover of an infringing song not also infringing on the original?

    If not, then we have a really sweet loophole: get someone to cover a desired song, then release your own cover and just call it a "cover of a cover". It's like money laundering for music. Let's call it "music laundering".

    Excuse me while I file a patent on this process....

     

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  24.  
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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:38am

    Re: Wouldn't reform make each less accountable to the other?

    That depends a lot on what you mean by "copyright reform"...

    For example, one version of copyright reform would be changing the mechanical licenses for derivative works such that they do cover more creative and different arrangements, while at the same time establishing clearer boundaries between derivative works and transformative works, and creating new mechanical licenses to cover things like synchronization for broadcast. In such a setup, everyone could potentially get paid for the use of their creative contribution without the need for "permission" complicating things or slowing them down.

    I'm not necessarily advocating that exact system -- just pointing out that "copyright reform" can mean a lot of things

     

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    Suzanne Lainson (profile), Jan 30th, 2013 @ 10:39am

    Re: Re: But wouldn't that mean...

    There's a really weird question here as to whether you can infringe on something that's unauthorized

    Which means that it is Fox, not Coulton, through its actions is actually allowing a liberal interpretation of copyright law. If it is in Fox's best interests to discourage copyright from extending to unauthorized recordings, then ultimately that benefits others who do the same thing. The goal, then, isn't to make sure Coulton is protected, but to make sure others can do what Fox has done.

    Just tossing that out there.

     

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  26.  
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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:41am

    Re: Fox

    So Fox can use the compulsory license to cover a song that may have been illegally created? I wonder what it would mean for Fox if Coulton was found guilty of copyright infringement. The compulsory license Fox paid to use his work would have to be invalid if he could not legally license it.

    But Fox may not have used a compulsory license... it may have gotten (and probably did get) permission to make the derivative work. And, you are right, that's REALLY weird -- it basically means that, in the interim, Coulton's work was both public domain and also available to be copyrighted and owned by whoever could secure the necessary licenses first.

     

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  27.  
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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:44am

    Re: Re: Re: But wouldn't that mean...

    Which means that it is Fox, not Coulton, through its actions is actually allowing a liberal interpretation of copyright law. If it is in Fox's best interests to discourage copyright from extending to unauthorized recordings, then ultimately that benefits others who do the same thing. The goal, then, isn't to make sure Coulton is protected, but to make sure others can do what Fox has done.

    Just tossing that out there.


    I'm not sure I follow your meaning. I am just pointing out that it creates a very unclear legal situation -- not advocating any particular interpretation of the law or who was in the right/wrong here.

     

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    Suzanne Lainson (profile), Jan 30th, 2013 @ 10:45am

    Re: Re: Wouldn't reform make each less accountable to the other?

    I'm not necessarily advocating that exact system -- just pointing out that "copyright reform" can mean a lot of things

    True, but I am assuming no one on Techdirt wants copyright to be more restrictive, so I was addressing the concept of how screwed up copyright is and whether it needs to be reformed. Reforming it so that it is less restrictive wouldn't protect Coulton, I assume. Reforming it so that he has a bigger legal claim seems to be heading in a direction different that what Techdirt seems to advocate.

     

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  29.  
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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:47am

    Re: Re: Re: Wouldn't reform make each less accountable to the other?

    Reforming it so that it is less restrictive wouldn't protect Coulton

    The reform I described would be less restrictive while also providing greater protection (and greater clarity of legal status) to Coulton's work... so I think your premise is flawed.

     

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  30.  
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    Anonymous Coward, Jan 30th, 2013 @ 10:48am

    Re:

    I think you're missing the spin (Thank You for Smoking?), millions in lobbying, and gross overexaggeration of the difference in scope.

     

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    Suzanne Lainson (profile), Jan 30th, 2013 @ 10:49am

    Re: Re: Re: Re: But wouldn't that mean...

    I'm not sure I follow your meaning. I am just pointing out that it creates a very unclear legal situation -- not advocating any particular interpretation of the law or who was in the right/wrong here.

    Yes, I get that. And I'm just pointing out that I don't think protecting Coulton's interests legally is what the copyright reform movement probably wants to have happen.

    Yes, I think it is fair to point out the flaws in copyright law. But the issue with Coulton may be "Be careful what you wish for."

     

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    Ninja (profile), Jan 30th, 2013 @ 10:52am

    Re: Re: But wouldn't that mean...

    Sounds like the whole copyright thing was written in some insane asylum. Except that the ones lobbying behind it know exactly what they want. And they want chaos.

     

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    Leigh Beadon (profile), Jan 30th, 2013 @ 10:56am

    Re: Re: Re: Re: Re: But wouldn't that mean...

    Yes, I get that. And I'm just pointing out that I don't think protecting Coulton's interests legally is what the copyright reform movement probably wants to have happen.

    I think that is a gross oversimplification of the (not at all unified in philosophy) "copyright reform movement"

    Personally, I advocate the idea of a legal framework that can provide reasonable economic incentives and advantages to creators -- including creators of derivative and transformative works -- however I'd like to see those incentives based less around principles of ownership/property/permission.

    In any case, that's not really the discussion being had here -- we are looking at current copyright law, which does provide protection to a derivative work like Coulton's but only under certain conditions, and the very bizarre situation that has arisen out of that.

     

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    Jason (profile), Jan 30th, 2013 @ 10:57am

    Re: Sounds like may be guilty of contract violation; not copyright infringement

    Jeffry, both issues can and would be raised on the grounds that if he is in violation of the contract, then the license would be void, also.

    Some clarification of the logic is probably worth noting (MASNICK correct me if I'm wrong about your view on this):

    Although Mike's wording may seem to suggest that merely seeking protection is the de facto violation, nothing in the wording of the "shall not be subject to protection" suggests that the protection-seeking, in itself, is a prohibited action (note the passive mood of the clause), rather it's stating that the licensee will, in all likelihood, have no hope of having any such claim enforced for the derivative work.

    HOWEVER, the direct implication of such a claim is that the work, which he has already produced and distributed, probably included variations in arrangement, melody, character, etc, that are not permitted under the license per the "shall not change" clause. Otherwise, what else could he be seeking protection for?

    This would then mean that all of copies of the work that have already been distributed were distributed under a license that was probably void from the start, making each a likely violation of copyright.

    I agree with Mike, this seems kinda crazy. As others have noted, it suggests a nullification of the kind of transformative use reserved for the public domain under fair use.

    It does not follow logically that there can/should be all three: licensed use, fair use, and some in-between degree of use of a copyrighted work that does not overlap with the some part of the other if and when the user has a license.

    It's almost like saying everyone now suddenly should have to have performance insurance in case they accidentally vary the work in the "x < OH SHIT! < y" zone. That insurance being a direct license. To me this would seem to negate the very purpose of the compulsory license.

     

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    Suzanne Lainson (profile), Jan 30th, 2013 @ 10:58am

    Re: Re: Re: Re: Wouldn't reform make each less accountable to the other?

    For example, one version of copyright reform would be changing the mechanical licenses for derivative works such that they do cover more creative and different arrangements, while at the same time establishing clearer boundaries between derivative works and transformative works, and creating new mechanical licenses to cover things like synchronization for broadcast. In such a setup, everyone could potentially get paid for the use of their creative contribution without the need for "permission" complicating things or slowing them down.

    The reform I described would be less restrictive while also providing greater protection (and greater clarity of legal status) to Coulton's work... so I think your premise is flawed.

    It would clarify the system, but I'm not sure I'd call it less restrictive. To me it extends copyright to more creations. That's good if you want that, not so good if you want fewer works protected.

    I can certainly understand people pointing out the flaws in copyright. But I'm not sure what will happen when more nuances are added. My primary interest in all of this is Coulton's sense of violation. I don't see him being victimized any more or less than others who have been copied. If his cause is a righteous one, then I think everyone in his situation should also become poster children for the issues. Or let's back away from it and ask why he's being elevated to the poster child while others have not been.

     

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    Jason (profile), Jan 30th, 2013 @ 10:58am

    Re: Re: Sounds like may be guilty of contract violation; not copyright infringement

    "It does not follow logically that there can/should be all three"
    ***as it pertains to degree of variation

     

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  37.  
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    Anonymous Coward, Jan 30th, 2013 @ 11:00am

    I happen to agree that Section 115 is one of the stupider (and hardest to apply to reality) provisions of the Copyright Act.

    That said, I think there's a decent argument that he simply did what was necessary to conform the song to a particular style, and did not *change* the basic melody, because the original did not have a basic melody (it's a rap).

     

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    Ninja (profile), Jan 30th, 2013 @ 11:00am

    Re: How is FOX not wrong then?

    Like the Schroeder cat thing. I explain:

    - The chance of a slice of bread with peanut butter falling face down is proportional to the value of the carpet below
    - A cat will always fall on their paws (ie: standing)

    So if we tie a slice of bread with peanut butter on the back of a cat and throw it over a very expensive carpet it should start revolving around itself to infinity.

    With that I've just explained copyright in a very didactic and realistic way.

    Notice: the writer of this comment has not made use of hallucinogen substances before writing. He just read about copyright mechanics.

     

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  39.  
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    Anonymous Coward, Jan 30th, 2013 @ 11:04am

    Re: Re: But wouldn't that mean...

    There is case law saying that the original elements of an unauthorized derivative work can be protected by copyright. I believe this case law is correct based on the language of the Copyright Act.

    There is also case law saying that an unauthorized derivative work cannot be protected by copyright where the underlying work "pervades" the unauthorized derivative. I believe this case law is reasonably based on the language of the Copyright Act.

    There is *also* case law suggesting simply that an unauthorized derivative work cannot be protect by copyright. Full Stop. I believe this case law is mistaken.

     

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    Michael, Jan 30th, 2013 @ 11:04am

    Re: Re: Fox

    Got a license to make a derivative work from whom? I haven't listened to Coulton's or the one from Glee, but it would seem weird to get a license to make a derivative from Sir Mix A Lot and then copy Coulton's rendition (infringing on creative elements if his work really was derivative), and if they got a license from Coulton - well, that may not have been a legit license.

     

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    Anonymous Coward, Jan 30th, 2013 @ 11:06am

    Re: Re: Re: But wouldn't that mean...

    Exactly, because they can then claim sign up with us and we will deal with the copyright licensing; go independent and who knows what bad things will come your way.

     

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  42.  
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    Michael, Jan 30th, 2013 @ 11:07am

    The real question

    The real question is why Sir Mix A Lot would still be getting paid for this HORRIBLE song.

    Is he still alive?

     

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  43.  
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    Anonymous Coward, Jan 30th, 2013 @ 11:11am

    Re: Re: Fox

    " in the interim, Coulton's work was both public domain and also available to be copyrighted and owned by whoever could secure the necessary licenses first."

    I don't believe that's correct.

    Someone else cannot get copyright protection for a work created by another (absent a work-made-for-hire or assignment relationship). They can only get protection for the original aspects of their work.

    So even if Fox gets a direct license from Mix-A-Lot and/or his publishing company, they can't claim a copyright on something created by Coulton.

     

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    Suzanne Lainson (profile), Jan 30th, 2013 @ 11:11am

    Here's my take

    If you are famous, like Barbra and Judy and Fox mimics your arrangement, everyone is cool because it is an homage.

    If you are a nobody, you can't get the fans to be outraged on your behalf because you don't have enough fans to get coverage across the media.

    Coulton is the situation where he feels he's not famous enough that people will know it's his work without credit from Fox, but he's famous enough that when he complains, he gets press.

    So rallying your fans to get mad at someone as big as Fox is good if you have enough fans to rally, but gets much less attention if no one picks up the story. Or worse, if you're used as an example of someone who doesn't want to share your ideas in exchange for exposure.

    That's my issue. Varying standards of outrage depending on who you are.

     

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  45.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 11:12am

    Re: How is FOX not wrong then?

    Fox probably got a license from Mix-a-Lot and/or his publishing company that allowed for what they did.

     

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  46.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 11:13am

    Re: The real question

    He's alive and kicking. I know some folks who have done some really cool deals with him for startups.

    Also, you misspelled CLASSIC!

     

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  47.  
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    Kevin Clark (profile), Jan 30th, 2013 @ 11:32am

    legal definitions of music

    Knowing that he licensed it as a cover, and not as a derivative work with co-authorship, is really the key fact. Far more than the actual license he signed, actually.

    Legal definitions of musical terms like "melodic" and "harmonic" are notoriously crappy. Courts tend to defer to the terms of the agreement, rather than trying to ferret out the reality that the agreement should have reflected. There are a lot of cover songs, or cover versions, that change the melody and harmony to a greater or lesser extent, but are rightly treated as covers. There are also honest-to-god derivative works that might fall on the windy side of this "cover" definition from Harry Fox.

    Courts are terrible at music theory, and everyone knows it, is basically the gist here. So even though he changed the melody and harmony, I'd be stunned if there existed a court that would tell him that he violated the cover license. This is viewed as giving up rights/ownership that he could have claimed or negotiated, not overreaching by violating a license from Harry Fox. But then again, courts do weird things with this stuff.....

     

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  48.  
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    Leigh Beadon (profile), Jan 30th, 2013 @ 11:37am

    Re: Re: Re: Fox

    I don't believe that's correct.

    I sure hope not, and i'm glad it doesn't sound that way to you. I'm really just thinking out loud through all of the bizarre legal possibilities that seem to come out of this situation...

     

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  49.  
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    MBraedley (profile), Jan 30th, 2013 @ 11:50am

    How can Fox not be in the wrong if Coulton is?

    Disregarding the fact that Fox essentially copied Coulton's work for a moment, if it was perfectly legal for Fox to perform a cover of a song in a style completely different from the original, despite the wording of s.115, then how is it not legal for Coulton to do the same, assuming they received the same license to cover the song?

    So let's take this from the opposite perspective: that Coulton's work as a whole is indeed transformative. Now I'm no lawyer, but why wouldn't you be able to claim a copyright on the aspect that makes the work transformative, outside of the scope of a copyright for the recording, namely the arrangement that Coulton wrote? More simply, how does Coulton not have a copyright on his arrangement? It is, for all intents and purposes, a separate work from the copyrighted material he used (under license), i.e. the lyrics.

    Because his song is a cover, does that mean that the copyright owner now also owns the copyright to the arrangement that Coulton wrote? Or does no one own the copyright? Either case is deeply troubling.

     

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  50.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 11:54am

    Re: Re: But wouldn't that mean...

    My point was that if changing it to the point that it qualifies as a transformative creatively unique work invalidates it's coverage under the license he purchased then fine. The license doesn't cover it. No big deal. That's a completely separate issue from whether the fact that it was changed to the point of becoming a transformative creatively unique work that is afforded protection on it's own.

     

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  51.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 12:06pm

    Re:

    if you think this is bad... just wait until you read a Creative Commons License! Hahahahahahah...

     

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  52.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 12:09pm

    Re:

    So in the end reality and common sense prevail as no one is taking Coulton to court over his violation of the copyright statute and as Fox didn't break the law, no one is going to take them to court either.

    Looks like a win, win - and Johnathan should have consulted with a copyright lawyer before going on a public twitter rampage being all uninformed and whot not.

     

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  53.  
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    RonKaminsky (profile), Jan 30th, 2013 @ 12:20pm

    Re: Re: Re: Re:

    > we are indeed having some weird site issues this morning...

    Truly indeed. No trolls show up on a post which just begs for someone to claim that Mike is being a "pirate apologist" (when, actually, he's merely being critical of how copyright law defines infringement).

     

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  54.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 12:30pm

    Re: Re: Re: But wouldn't that mean...

    Well, it's not a *completely* different question, because whether it was authorized affects its ability to be protected under copyright.

     

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  55.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 12:34pm

    Re: Re: Re: Re: But wouldn't that mean...

    The point of contention is the line at which a work is so transformed that it becomes a new unique work merely inspired by the original. At that point it is no longer a copy but rather it's own original work which does not require authorization from the prior one.

     

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  56.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 12:54pm

    Re: Re: Re: Re: Re: But wouldn't that mean...

    That is not true, and a gross misunderstanding of copyright law in general and Section 115.

    A derivative work is, for infringement purposes, indistinguishable from a "copy." What I mean by that is that creating an identical copy and creating a derivative work constitute infringement if you don't have authorization from the copyright holder.

    The creator of a derivative work can obtain copyright protection for the original aspects of the derivative work if the derivative work is authorized by the copyright holder in the underlying/preexisting work. Under some circumstances, the creator of an unauthorized derivative work may be able to obtain copyright protection for the original aspects of an unauthorized derivative, although the state of the law is less clear on that point.

    Moreover, this is clearly not a question of a work that does not count as a "derivative work." It's wholesale copying of the lyrics. There is no court or knowledgeable attorney in the land that would say this is not a derivative work under general principles.

    The only questions here is whether (a) it can receive copyright protection as a derivative work under the rules set forth in Section 115, and (b) whether creation of this work exceeded the scope Harry Fox/Section 115 license (and thereby constituted infringement).

    Helpful?

     

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  57.  
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    kryptonianjorel (profile), Jan 30th, 2013 @ 12:58pm

    Re: Re: Re:

    wow...just watched that not 2 minutes ago

     

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  58.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 1:02pm

    Re: How can Fox not be in the wrong if Coulton is?

    With regard to the first question, I think " assuming they received the same license to cover the song" is the rub. Fox may have obtained a license directly from Mix-a-Lot, thereby making Section 115 irrelevant.

    As far as Colton owning a copyright on his own arrangement, there are two issues. First, Section 115 says that if you obtain a compulsory mechanical license, you can't get copyright for your arrangement/cover as a derivative work. Second, it is unclear whether his arrangement fell within the scope of his license (thereby potentially making in unauthorized), and there is ambiguity in the law regarding copyright protection for unauthorized derivative works.

    Regarding Mix-A-Lot owning the copyright in Colton's arrangement, there may be no copyright in that work or Colton may own the copyright, but it depends on a couple close questions of law.

     

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  59.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 1:14pm

    Re: Re:

    Yep. Fox wins, because they get to cash in on a new arrangement of "Baby Got Back" without putting in the effort to actually write one. SML wins because he's getting more money for the one notable thing he ever did.

    And Coulton wins because... um... Exposure? But if he hadn't gone on the uninformed Twitter rampage, he wouldn't have got that. Money? No, not getting paid for it. Comfort in the fact that he was technically only wronged in a moral, and a legal, manner? Hooray!

     

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  60.  
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    That One Guy (profile), Jan 30th, 2013 @ 1:48pm

    Re: Re:

    These days they're pretty much interchangeable, so either is correct.

     

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  61.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 2:11pm

    Re: Re: Re: Re: Re: Re: But wouldn't that mean...

    I don't think anyone is disputing that he does not have a copyright claim over the words. What is in question is the arrangement; which does not seem to be inspired at all by the original arrangement of the same song. So, does singing copied lyrics over an original piece of music mean that the arrangement of the music is a derivative work?

    Moreover, this is clearly not a question of a work that does not count as a "derivative work." It's wholesale copying of the lyrics. There is no court or knowledgeable attorney in the land that would say this is not a derivative work under general principles.

    It would seem to me that Coulton has a clear right, under current law, to claim copyright on the arrangement of the music but not the words. I actually can't imagine a court that would claim this piece of music (sans lyrics) isn't eligible for copyright.

    I'm not really sure how you arrive at your conclusion and personally I don't think Section 115 even applies as I don't believe he needed a license to create this piece of music. However, if the lyrics were registered as a copyrighted work he would need a license for those.

    The problem here is that copyright law is a huge ball of mess, filled with contradictions. Everyone has their own interpretation and no one really knows who is right. More and more copyright feels like a religion ... no man can no the truth and only when we face judgement (or don't face judgement) can the "truth" be revealed.

     

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  62.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 2:31pm

    Re: But wouldn't that mean...

    Yup. If a court were to rule that Coulton's version rises to the level of parody and is therefore covered under Fair Use, it doesn't matter that the license he did purchase doesn't cover what he did. Parody requires no license or direct permission at all.

     

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  63.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 2:36pm

    Re: Re: Re: Re: Re: Re: Re: But wouldn't that mean...

    copyright in a musical work includes "any accompanying words" 17 U.S.C. 102(a)(2).

    Thus, you can't separate out the lyrics and say the arrangement or "musical" aspects are a different work.

    Moreover, the rhythm/cadence of the lyrics is substantially similar between the two versions, even if the melody is completely different.

    Unfortunately, the right to claim copyright on the musical arrangement alone is not clear because some courts have suggested that even the original aspects of an unauthorized derivative work cannot be protected by copyright (although I believe that is an incorrect reading of the Copyright Act).

    I agree that copyright law is needlessly complex.

     

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  64.  
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    Richard (profile), Jan 30th, 2013 @ 3:08pm

    Sorry

    This whole situation has (ridiculously) exposed Jonathan Coulton as a "pirate" and Fox as being perfectly within the law. And that just seems silly.

    No - that is actually not possible.

    If Coulton's arrangement is sufficently different from the roginal to count as a derivative work (and hence be infrionging) then that must also apply to Fox's version. BOTH could be sued by Sir Mix-a -lot. If Coulton does a deal with Sir Mix-a-lot then only Fox is infringing - and if Coulton outlives Sir Mix - a lot then when the latter's work (eventually goes PD) Fox will stop infringing against Sir Mix-a-LOt and start infringing against Coulton.

    In addition the wording of the law may be slightly different in some other jurisdictions and so Fox may already be infringing against Coulton and both infringing against Sir Mix a Lot.

    Clear?
    NO it isn't - but that's copyright law for you...

     

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  65.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 3:22pm

    Re: Sorry

    Except Fox clearly had to get additional licenses (e.g., a sync license to use the composition in an audiovisual work) in addition to a standard compulsory license, which suggests that Fox may have gotten direct permission for their version from Mix-a-lot or his publishing company. Thus, they may not necessarily be bound by the weird Section 115 limitations on "changing the essential character" and whatnot.

     

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  66.  
    identicon
    Bob Johnson, Jan 30th, 2013 @ 3:39pm

    Why did anyone bring this up? Sir Mix-a-Lot wasn't complaining. I still think Glee is in the wrong. They covered the "illegal" song.

     

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  67.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 4:05pm

    Re: Re: But wouldn't that mean...

    That's actually a decent argument in this case, I think. It's sort of a mirror image of the 2 Live Crew supreme court case.

    In that case, the crude "Big Hairy Woman" was found to be poking fun at the more straight-laced "Pretty Woman," and therefore a parody.

    Here, Coulton's soulful and sincere version of the song could be seen as poking fun at the explicit-nature of the original, and therefore a parody.

     

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  68.  
    identicon
    Anonymous Coward, Jan 30th, 2013 @ 5:38pm

    Re: Re: Re: Re: Re: Re: But wouldn't that mean...

    Ok. I misunderstood the argument being made. My question then becomes is there a point (even if it doesn't apply in this case) where a work does rise to the point I described and if so what is the threshold for that condition to be met?

     

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  69.  
    identicon
    Matthew Brown, Jan 30th, 2013 @ 5:48pm

    All hip hop is potentially infringing.

    All hip hop music takes samples of copyrighted work and passes it off as something new and original. All hip hop artists could potentially be sued for infringement, or perhaps even prosecuted under today's draconian laws. This is an example of how locking up ideas as property doesn't promote the progress of science and the useful arts, but stifles their progress. Locking up ideas as property is just as much a form of censorship as suppressing them.

     

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  70.  
    identicon
    Rekrul, Jan 31st, 2013 @ 3:12am

    Re: Re: How is FOX not wrong then?

    - The chance of a slice of bread with peanut butter falling face down is proportional to the value of the carpet below
    - A cat will always fall on their paws (ie: standing)

    So if we tie a slice of bread with peanut butter on the back of a cat and throw it over a very expensive carpet it should start revolving around itself to infinity.


    Actually a more likely outcome is that both things will happen. The cat will land on its feet, but the slice of bread will fall off onto the carpet, no matter how securely you've tied it.

     

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  71.  
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    Rekrul, Jan 31st, 2013 @ 3:16am

    The saddest part of this whole thing is that the show Glee shows high school kids just casually picking dozens of songs to perform without any mention of having to buy the rights to do them. However if a school were to do this in real life, they'd get sued for hundreds of thousands of dollars.

     

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  72.  
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    Leigh Beadon (profile), Jan 31st, 2013 @ 6:25am

    Re:

    not only that, they had the audacity to actually have a character say the line "Madonna is public domain, her music belongs to all of us!" in the same episode where they had surely spent half the budget licensing Madonna material.

     

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  73.  
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    dennis deems (profile), Jan 31st, 2013 @ 7:03am

    What Coulton Should Have Done

    As a composer, my view is that Coulton created an original musical work that happens to use Sir Mix-A-Lot's lyrics. Coulton should have published it as an instrumental first. Then the legal obligation of FOX to clear their use of this music would have been crystal clear.

     

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  74.  
    identicon
    James, Jan 31st, 2013 @ 4:22pm

    Wow.

    Seriously? If you happen to be a lawyer, you're not a very good one. If you're not a lawyer, leave the foot in your mouth and don't speculate.

    That also means, however, that Coulton did not live up to Section 115 and his cover, in all likelihood, violates the original copyrights, because the license he got does not cover the very different arrangement and melody he created.


    If he lives up to 115, then he doesn't have grounds under the compulsory license, which he has in essence admitted (and is pursuing the wholly appropriate action against them for directly copying his entire song's audio tracks). If he doesn't live up to 115, then as a "very different arrangement and melody" it is specifically a unique work and was protected by copyright the moment it was produced.

     

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  75.  
    identicon
    cipher, Jan 31st, 2013 @ 6:15pm

    Mix A Lot Speaks

    Just thought I should say that Sir Mix A Lot recently commented about the issue:
    "Do not underestimate a cat like Jonathan, with a million followers. He will wax dat ass. Seriously, you can't underestimate that kind of power, and the best thing to do is to get him on your side. Seriously, the industry as we knew it is over, and these kids are not intimidated by any large corporation."

    Starting around 48:30 of the radio interview here:
    http://www.kuow.org/post/politics-federal-immigration-reform

    This, along with some other cryptic comments he made seem to suggest that he can't talk much about it because he sold both Coulton and Fox the rights, but that he backs Coulton and thinks Fox is in the wrong. Coulton is unlikely to hear any sort of complaints from, or run into trouble with Mix A Lot.

     

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  76.  
    identicon
    Anonymous Coward, Jan 31st, 2013 @ 6:41pm

    Re: Re: How is FOX not wrong then?

    Except they took Coulton's version lock, stock and lyrics change. They have played the tunes simultaneously on TWIT, This Week in Google and This Week in Law. The songs are identical except for the voice singing the vocals.

    Coulton did a cover and played the music. Glee took his instrumentation and possibly his playing of the instruments as well. The wired article has both songs youtube links side by side so it is easy enough to compare them. http://www.wired.com/underwire/2013/01/jonathan-coulton-glee-song/

    The point here is if they just gave a nod of the head to Coulton and the other artists they did similar things to FOX would come out of this looking magnanimous not like pirates. They hole they fell down is Coulton is a geek star who has a social media following that is tied in.

    FOX needs to learn you can't win a fight like this by just by being in the legal right you need to be in moral right as well or you just look like a bully.

    http://www.youtube.com/watch?v=qkJdEFf_Qg4

     

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  77.  
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    Samuel Abram (profile), Feb 2nd, 2013 @ 8:12am

    Re: Mix A Lot Speaks

    I was just about to post this. Thank you for doing the job I won't have to do!

     

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  78.  
    identicon
    Keith Tyler, May 9th, 2013 @ 11:59am

    That's great Fox, you gonna sue over it? No, because you can't

    It seems to me the compulsory license issue is that yes, Coulton violated the terms of compulsory licensing (or rather, that his compulsory license did not provide a license to do what he did), but because he did that, the rest of the compulsory licensing terms -- including the part that says a compulsory licensed work is not subject to derivative work protection -- is therefore invalid.

    In other words, Coulton infringed on Warner (Mix-A-Lot's copyright holder), *by making a derivative work*, which a compulsory license does not provide license to do.

    But that's Warner's issue, and *NOT* Fox's. Fox has no standing in that question. Fox is still liable for infringing Coulton's derivative work, even if that derivative work was itself infringing.

    Unless an infringed work is ineligible for such protection. (I don't know, but I wouldn't be surprised.) But Fox is not in a position to assert that such work is infringing. Unless Fox can convince Warner to sue Coulton over his version, that question is not resolved and (afaik) we must assume that the work is *not* infringing until the copyright holder or their representative sue Coulton to make that determination. IANAL, but boy do I wish I was.

    Where is my army of nerd lawyers, I ask you? You need a website defaced or taken down, just call 4chan. You need to win a court case you deserve to win, who you gonna call?

     

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  79.  
    identicon
    James, Jul 9th, 2013 @ 12:42pm

    Doesn't matter if Coulton didn't "conform to copyright laws," the new melody of the song was his creation and (as far as I know) protected by intellectual property regulations.
    Glee bit off an actual performed because Ryan Murphy is a no talent hack and thinks he is too powerful to be stopped.
    Music is not about Auto-tune and Neilsen Ratings, it's about doing something you love because you can't imagine doing anything else.

     

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  80.  
    identicon
    Ken, Jan 5th, 2014 @ 6:37pm

    Wow.

    So, anyone else here because tonight's episode of Good Wife is doing pretty much EXACTLY THIS STORY?

     

    reply to this | link to this | view in thread ]


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