Techdirt. Stories filed under "covers"

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

Mike Masnick — Wed, 30 Jan 2013 09:38:00 PST

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.

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Will 'Clipart Covers' Find Itself Staring Down The Barrel Of A Lawsuit?

Tim Cushing — Fri, 13 Jan 2012 17:43:57 PST

Every time you think the internet has already covered every possible iteration of everything, up pops something new. The current frontrunner for the "Best New Internet Thing of the Immediate Future*" is Clipart Covers, which does exactly what it says on the tin: it recreates album covers using only clipart and, apparently, Comic Sans.

*"Immediate future" defined as anywhere from 30 nanoseconds to one week.

Here are a couple of examples:

Très amusant, non? Just a little friendly derivative artwork with no greater purpose than a few lols. But is it actionable?

Good question. The site creator has even avoided the potentially litigious pitfall of hosting the original artwork for comparison and it would seem that the artwork here is transformative enough to avoid legal action and would definitely fall under most people's definition of "fair use." In fact, it would even fall under one legal interpretation of fair use, specifically Blanch vs. Koons, in which the court stated that Koons' use of a fashion photo "added something new, with a further purpose or different character, altering the first with new expression, meaning, or message."

Which brings us to the handcrafted term "Maiseling"... As Techdirt readers will surely recall, a re-done album cover touched off an internet shit storm a few months ago. An 8-bit remake of the album cover for Miles Davis' "Kind of Blue" turned into a lose-lose situation for Waxy.org's Andy Baio, who settled with album cover photographer Jay Maisel rather than risking a much larger amount attempting to have a court recognize it for what it was: fair use.

It's entirely possible that the creator of Clipart Covers will never face legal action for ~~his~~ her reinterpretations. But all it takes is one photographer, one label rep or one clipartist to derail the whole thing and turn a spur-of-the-moment idea into a financially crippling legal nightmare. And sadly, there is no real benchmark for "fair use." It's still very much in the eye of the beholding court, but chances are that an aggressive "Maiseling" will ensure it never gets that far. This will also ensure that the definition of "fair use" stays ambiguous enough to allow for repeated blunt force trauma via the copyright-as-weapon plan.

And I'm sure the critics will be (s)trolling through the comment threads soon enough, throwing around words like "ripoff" and "uncreative," and citing their unproven ability to create art in a vacuum. To them I say, if you want people to "respect" copyright, you need to treat it as a tool for the common good rather than a pecuniary weapon. You also need to realize that when people put together something like Clipart Covers, they're not doing it to flaunt copyright or disrepect the original artists. They're doing it to be part of a shared cultural experience, something aggressive copyright holders seem to actively disdain.

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Prince Claims When Someone Covers Your Song, The Original No Longer Exists

Mike Masnick — Thu, 21 Apr 2011 09:46:07 PDT

Ah, Prince. The artist, who is notoriously controlling concerning his own music, has apparently decided that the latest evil in the world is cover songs and the compulsory licenses that make them possible. As you may or may not know, it's legal to do cover songs, because of compulsory licensing laws that say as long as you pay a set fee, you can cover any song (why such laws don't apply to samples is weird, and leads to the bizarre situation in which it's legal to cover an entire song, but do just a second of the song and you may be in legal trouble). Either way, Prince is not a fan. In an appearance on the George Lopez show (embedded below), Prince comes out against the entire idea of cover songs because, apparently, it destroys the original:

Prince: I don't mind fans singing the songs... My problem is when the industry "covers" the music. See covering the music means that your version doesn't exist anymore. A lot of times, people think that I'm doing Sinead O'Connor's song and Chaka Khan's song when in fact I wrote those songs. And it's okay when my friends ask to do them, but there's this thing called the compulsory license law, which allows artists, through the record companies, to take your music, at will, without your permission. And that doesn't exist in any other artform, be it books, movies -- there's only one version of "Law and Order' (crowd laughs). There are several versions of "Kiss" and "Purple Rain."

George Lopez: There should be only one version of music.

Prince (sarcastically): You would think... (crowd laughs)

Hmm. Well. So, apparently Prince's version of "Purple Rain" no longer exists. I had no idea. As for Prince's final point, why would you think that? Why is there a problem of anyone doing a cover? Rather than the original no longer existing, it actually exists more, in that more people are aware of and interested in the original.

Of course, all this made me curious. Surely, Prince has covered others songs before. And, in fact, he has. Many, many, many times. Some folks on the Prince fan boards have made a nice list of all the many songs that Prince has apparently "destroyed" of other artists by covering them either for albums or live shows. Of course, perhaps he did this out of spite for those other artists. In fact, Prince has been accused of covering the Foo Fighters during his Superbowl performance to "get revenge" on the Foo Fighters for covering one of his songs. Some revenge. "Destroying" their original song like that in front of the largest TV audience around. Must suck.

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Singer At New Media Conference Turns Off Audience Member Cameras

Mike Masnick — Fri, 22 Aug 2008 03:21:28 PDT

You would think that someone who had "embraced" new media would understand the value of viral content, but that's not always the case. Derek Coward writes in to let us know of a bizarre incident involving a cover song singer who goes by the name Richard Cheese, who apparently sings "cheesy" loungey versions of hard rock songs. There's a podcast called Coverville that (not surprisingly) focuses on cover versions of songs. For his 500th episode, the host, Brian Ibbott, put together a concert at a new media trade show. He found some musicians who specifically allow their music to be used in podcasts without royalties (i.e., those who recognize the value of free promotion) and had them play a concert -- and Cheese was one of the headliners.

At a new media trade show full of podcasters and bloggers, one thing you should expect is that they'll have cameras, and they'll be taking photos and video. That's what they do. But, apparently this upset Cheese greatly, and he started walking around, grabbing people's cameras and turning them off. He later spit on someone who continued to film his concert, and yelled at the guy to turn his camera off. Considering that this guy's entire act is based on building on the works of others, and he understands the promotional benefits of having his music in podcasts, it does seem rather odd that he would be so upset about some folks videotaping him that he would then take their cameras, turn them off and even spit on people. Compare this to the other musician (who actually does write his own music) we mentioned recently who was taking fan made videos of his performances and stitching them together into a virtual concert.

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The Romantics Suing Over Cover Version Used In Guitar Hero: Apparently, It's Too Good A Cover

Mike Masnick — Mon, 26 Nov 2007 00:43:48 PST

Jennifer was the first of a few folks to alert us to the latest ridiculous copyright lawsuit. It appears that the 80s band The Romantics is suing Activision for the cover version of its song, "What I Like About You," being used in the Guitar Hero Encore: Rocks the 80s game released this past summer. The lawsuit is not because the song wasn't properly licensed. Activision properly licensed the song so it could have a band cover the song and use the cover in the game. The problem is that the cover band was too good, according to The Romantics. Yes, the band is complaining that the cover is so accurate it sounds just like the original Romantics' version, and therefore, is infringing on the band's rights. This is so ridiculous that it's worth repeating the details once again: The band agreed to a license allowing Activision to use a cover version of its song -- and then sued because the cover version was too similar to the original. The band is now claiming that Activision should have paid different (more expensive) royalties to use the original master recording. As ridiculous as this sounds, the band may actually have some (equally ridiculous) precedents to back it up. Other musicians have sued when properly licensed covers were used in commercials, claiming that even though the songs used were covers, they sounded too similar and people might assume that the musician endorsed the product in the commercials. In this case, though, there really isn't any question of endorsement -- and, honestly, the Romantics should probably be thrilled that anyone still pays any attention to the band at all, rather than trying to ban the sale of the new game (which, yes, it's trying to do).

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