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Comment by droithomme | Hacker News Reader

This is not just a cover it's clearly a new arrangement. As an arrangement it is a derivative work. Derivative works, specifically including arrangements of preexisting compositions, are most certainly themselves copyrightable materials by their authors, which in this case is Coulton as he is the author of the arrangement.

http://www.copyright.gov/circs/circ14.pdf

Coulton notes that he has bought a license from the Harry Fox Agency giving him the right to perform and distribute his original arrangement of Sir Mix a Lot's work, so that is all proper and legal.

There is no doubt legally that Coulton holds a copyright to his arrangement and that Fox is engaging in copyright violation since it is obvious the Fox piece is a cover of the Coulton arrangement, given there are almost no differences between their cover and his original arrangement.

The opinions of the Fox lawyers who contacted him are predictable, but incorrect regarding law.

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If I remember correctly the right to create derivative works is one of the five rights that can be licensed under copyright law.

IANAL but I would say if Coulton has a license from Harry Fox Agency to create derivative works, and the license terms allow him to retain ownership of such derivative works, then Fox may be infringing on Coulton's copyright. No?

If Coulton had rights to create a derivative, he'd be getting legal advice that he has a great (legal) case against Fox, if he's willing to spend the money and time. Though it isn't likely to make anyone fantastically wealthy.

If Coulton had a compulsory mechanical license to the original work, and just happened to create a unique arrangement and inadvertently created the derivative (he's no lawyer; how would he know a cover is only a cover until it isn't?) he'd be getting advice to let it blow over, because any action he happened to win against Fox on the grounds of their infringing his derivative would leave him open to suit from the original rights holder for not having had a license to actually create a derivative.

As Coulton termed the advice he received as "I have no case" I'm guessing he's not put off by the practical concern of time/money but by bad legal prospects. Particularly considering he went on to mention that he's still looking into whether they actually mixed in his original audio. (which, if they did, he could use to bring a copyright action against them without claiming that he created a derivative work.)

> If Coulton had rights to create a derivative, he'd be getting legal advice that he has a great (legal) case against Fox

Others are saying he paid for a license.

That's roc's point: Coulton's rights depend on what kind of license he paid for.

From Section 115 of the 1976 U.S. Copyright Act...

(2) 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.

http://www.copyright.gov/title17/92chap1.html#115

EDIT: to be clear, a compulsory license is what Harry Fox grants you.

I see. The compulsory license clause explicitly prohibits new creative work in the arrangement so that derivative copyright doesn't apply. The problem here is that his arrangement goes way beyond a straight cover and has a new melody, new chords, new instrumentation, rhythm - the only part he retained was the lyrics.

Coulton does own the copyright to his unique arrangement because of its obvious creative and new nature.

But if Coulton only has a mechanical license covering non-creative arrangements, then Coulton has actually never had the right to distribute the creative derivative work. He still owns the copyright to the unique parts of the arrangement - everything but the lyrics - but he has no right to perform or sell this derivative arrangement because he has not negotiated a license to distribute a derivative work that changes the nature of the song, and the compulsory license was the wrong thing for him to get as it does not cover that.

Fox Network/Glee still doesn't have the right to distribute because they are violating Coulton's arrangement copyright, but Coulton also doesn't have the right to distribute because the compulsory license doesn't cover substantial changes.

Very likely true! It's complicated and murky indeed. He may own a good part of the song that he has created, but not enough to ever see it released without a claim from the Mix-A-Lot song publishers.

Except that he has already paid licensing fees to Mix-A-Lot per his blog.

There have been comments in previous threads which have made persuasive arguments that per the licensing agreements, Coulton doesn't have any copyright over his arrangement. Music licensing is a not-straightforward business and the protections we assume exist often don't seems to be the gist.

Links - http://news.ycombinator.com/item?id=5119701 http://news.ycombinator.com/item?id=5121349

Very not-straightforward. A compulsory mechanical license to distribute a derivative work as a sound recording does not automatically grant you copyright over the derivative arrangement of the song itself. You kind of own the sound you recorded (you pay a statutory publishing rate, which is around 10 cents, per unit sold to the songwriters, which the Harry Fox Agency collects and distributes on behalf of the music publishing industry) but you don't actually own the song.

That said, it's most certainly not nice/cool/ethical to steal non-copyrighted arrangements simply because someone can't sue you.

Why does not owning the whole song imply that he doesn't own his arrangement?

See my comment and link above.

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