The popular TV show “Glee” covers well-known pop songs every week.  So it isn’t particularly surprising that an upcoming episode of Glee will feature Sir Mix-A-Lot’s 1992 song “Baby Got Back.”  The version that was uploaded to YouTube sounded nothing like the original at all, resembling a folk song more than the original rap/hip-hop recording.  However, it does, in fact, sound exactly like a cover of the same song by Jonathan Coulton that was uploaded to YouTube back in 2009.  You may know Jonathan Coulton from his 2006 song “Code Monkey.”

This is not a case of two covers of the same song simply sounding alike.  The two are far, far too similar for the occurrence to be a coincidence.  The most particularly damning piece of evidence is that the Glee version uses Coulton’s lyric change.  The original song uses the lyric “I want ‘em real thick and juicy/So find that juicy double/Mix-A-Lot’s in trouble” (which can be heard at around 1:55 in the original song).  Jonathan Coulton changed “Mix-A-Lot” for “Johnny C.” (his name) in his version, and that lyric change was carried over into the Glee version (the lyric change can be heard at around 2:15 in both the Coulton and Glee covers).  Considering that, according to a fan site, the character singing this song is called “Adam” the lyric “Johnny C.” simply makes no sense.  This made the copying so obvious that Linda Holmes of NPR stated, “That’s where you bring in the also extralegal notion known as res ipsa oy” (more commonly known as res ipsa loquitur).  Jonathan Coulton posted this comparison on his blog on January 18.  Coulton is not just concerned that Glee may have taken his cover version, he even posted a sound cloud showing that the two versions are similar and speculates that Glee may have actually lifted his audio track, based on a duck quack in his original recording that also appears in the Glee version.

Jonathan Coulton states on his site that he had a statutory license to distribute the song through Harry Fox, and that his Creative Commons license was specifically non-commercial.  So, did Glee infringe Coulton’s rights?  The answer may be extremely complicated.  While Coulton’s arrangement is very different from the original song and so the new elements might be a protectable derivative work, the fact that Coulton only had a compulsory license may not be sufficient.  17 U.S.C. § 115 states “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.”  However, if Glee really did lift Coulton’s actual track, Coulton may have a stronger case.

Nevertheless, Glee may have completely complied with US Copyright law.  However, Glee certainly isn’t winning the publicity war here.  Sometimes what is legal still doesn’t pass muster given the public’s sense of fairness.  Considering that Coulton is an unusually successful Internet star, he may be a difficult opponent in this particular field.  At least if you’re going to copy someone’s cover, you might want to avoid using the part where the lyrics give the artist’s own name.

Note:  I have to thank former IP Brief Symposium editor Ali Sternburg for posting about this story on Facebook and bringing my attention to this story.

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