The internet is ablaze with righteous indignation over Glee's ripoff of Jonathan Coulton's cover of Sir Mix-A-Lot's "Baby Got Back."
I like a good righteous indignation buzz as much as the next guy, but I think here it's a bit misplaced. Because no one can steal something from you that you don't own.
I actually did a little research and found articles here and here. What seems clear is that if you create a new arangement of a song under copyright, you've created a derivative work that's still covered by the original copyright holder unless you make special arrangements with them. So as long as Fox is paying Sir Mix-A-Lot for the Glee performance of "Baby Got Back," they're not actually doing anything wrong.
(Of course, if Fox has in fact just scrubbed the original vocals from Coulton's recording of the song without bothering to rerecord it, then they certainly have stolen something. This remains unclear. update: Apparently it's pretty clear to people who are not me that Fox did in fact use Coulton's recording. If true, this is a clear violation of Coulton's copyright and a deeply sleazy move to boot.)
(But in the rest of my probably-irrelevant-by-this-point post I'm talking only about the arrangement.)
It seems to me that this state of affairs, far from being a terrible injustice visited on artists, actually benefits both songwriters and performers.
To explain why, let's look at "All Along the Watchtower." Hendrix's cover of the Dylan song was so influential that Dylan himself said, " He found things that other people wouldn't think of finding in there. He probably improved upon it by the spaces he was using. I took license with the song from his version, actually, and continue to do it to this day."
He's being uncharacteristically generous here, but the fact is that Hendrix's version can't exist without Dylan's. Should Dylan be paying royalties to the Hendrix estate every time he plays the song with an arrangement informed by Hendrix's arrangement? I think most songwriters would probably chafe against the idea of having to pay to perform their own song.
And, indeed, if arrangements of copyrighted work were copyrightable, singer-songrwriters might well refuse to let people cover their songs because they'd be opening themselves up to legal action every time they performed the song for money if they did anything with the song that even remotely resembled the cover.
Songwriters who wanted to sell their songs to performers might have a harder time doing so, as the first arrangement of their song would then become the definitive arrangement, and subsequent performers wanting to record the song might have to pay extra to the arranger or else risk legal challenges. (Here's a pretty good study of how songwriters have benefited from multiple recordings with artists taking bits and pieces from each other's arrangements of a song. )
Coulton himself seems to have admitted that no laws have been broken here. He's upset by what he perceives as his mistreatment by Fox.Which I don't really get. Coulton has reaped an incredible publicity bonus from this whole controversy, such that even people like me who had never heard of him before have now heard of him, and his cover of Glee's cover of his cover of Sir Mix-A-Lot is now outselling the Glee version on iTunes. And the songwriter, who has not had a hit since 1992, is probably enjoying a nice payday as a result.
It appears that Fox not ripping off something that Coulton did not own has been good for both the songwriter and the performer. So what's the harm?
