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."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.
[....] "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."
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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Filed Under: baby got back, copyright, covers, glee, jonathan coulton, licenses, sir mix a lot
Companies: fox, harry fox agency, news corp.
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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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He's playing Freeza right now, do you really want him to blow us all up?
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>Hollywood-employed copyright lawyer: 5 points
>RIAA/MPAA executive: 10 points
>Chris Dodd: You win.
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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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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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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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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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But wouldn't that mean...
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Re: But wouldn't that mean...
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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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.
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Re: Re: Re: But wouldn't that mean...
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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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.
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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Re: Re: Re: Re: Re: But wouldn't that mean...
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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Re: Re: But wouldn't that mean...
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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Re: Re: Re: Re: Re: But wouldn't that mean...
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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Re: Re: Re: Re: Re: Re: But wouldn't that mean...
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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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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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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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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Sounds like may be guilty of contract violation; not copyright infringement
The clause you point out relates to the licensing contract w/ Harry Fox Agency, not copyright law. Correct?
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Re: Sounds like may be guilty of contract violation; not copyright infringement
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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Re: Sounds like may be guilty of contract violation; not copyright infringement
See also Carmen Ortiz.
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Re: Sounds like may be guilty of contract violation; not copyright infringement
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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Re: Re: Sounds like may be guilty of contract violation; not copyright infringement
***as it pertains to degree of variation
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Wouldn't reform make each less accountable to the other?
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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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.
I'm not necessarily advocating that exact system -- just pointing out that "copyright reform" can mean a lot of things
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Re: Re: Wouldn't reform make each less accountable to the other?
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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Re: Re: Re: Wouldn't reform make each less accountable to the other?
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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Re: Re: Re: Re: Wouldn't reform make each less accountable to the other?
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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Fox
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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Re: Fox
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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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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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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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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How is FOX not wrong then?
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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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.
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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Re: Re: How is FOX not wrong then?
- 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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Re: How is FOX not wrong then?
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Re: Re: How is FOX not wrong then?
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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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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The real question
Is he still alive?
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Re: The real question
Also, you misspelled CLASSIC!
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Here's my take
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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legal definitions of music
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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How can Fox not be in the wrong if Coulton is?
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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Re: How can Fox not be in the wrong if Coulton is?
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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Sorry
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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All hip hop is potentially infringing.
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What Coulton Should Have Done
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Wow.
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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Mix A Lot Speaks
"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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Re: Mix A Lot Speaks
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That's great Fox, you gonna sue over it? No, because you can't
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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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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Wow.
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