Jonathan Coulton, Baby Got Back, Glee, and Copyright

Disclaimer!  I am not a lawyer!  These are just my musings, if you ARE a lawyer, I’d love to hear back from you as to whether I’m on track.  Also, I call myself a Code Monkey.  That’s also a song by JoCo.  It’s awesome, and you should listen to it.

If you’re here, I’m going to assume you’ve heard some details on the current situation of Glee ripping off Jonathan Coulton’s cover of Baby Got Back.  If not, read JoCo’ summary first.

My understanding of the general consensus is that as the “cover” is a licensed cover, he doesn’t have any specific rights to protect it from Glee using it.

The musical arrangement that the covered lyrics were set to was 100% original, and JoCo released a Karaoke track that omits all of the covered lyrics.

It is my contention that the Karaoke track is not a cover, and is instead a wholly original work, and as such, JoCo owns rights to the melody to which his cover was set.

Let me rephrase it another way:

If I write a little tune that I find to be catchy, and release it, I would own the rights to it.  If, later, I purchased the rights to cover a song, and put the lyrics of the song to my completely unrelated tune, would I still have rights to my original tune?  Or would the fact that I happened to combine the two rob me of the rights to my original tonal creation?

If you believe I would lose my rights, then I licensed my tune non-commercial Creative Commons (as JoCo did) and a third party took it and did a non-commercial cover version of a different song to said tune, would that then rob me of by rights to the tune?  The actions of a unrelated third party licensing it can rob the original rights-holder of his rights to the licensed tune?

If you have a different answer to each of the last two questions, I’ve gotta ask why.  Because, for me, both of them seem to be a firm “Yes, I should keep the rights to the tune”

In fact, that is why the law reads:

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.

As such, I question whether the portion of JoCo’s Baby Got Back that was a wholly new melody (that was ripped off by Glee) would suffer the same shackling to the original rights holder, when I would consider that melody to not be a derivative work, and the ‘cover’ to in fact be a derivative work (as it has a wholly new melody).

The law says that it can’t be a derivative work if it keeps the original basic melody.  JoCo didn’t.  So — derivative work?