It's Not Evil to Copy

by Stephan Kinsella
Jan. 24, 2013

A crucial feature of the evolution of the social order is the capacity to use what’s good and improve on it, and throw out what’s bad. But people have to be free to do this. The government and lots of industry groups don’t think they should be.

A recent case underscores the point.

FoxTV recently used what’s good, putting Jonathan Coulton’s remix of Sir Mix-A-Lot’s “Baby Got Back” on its show Glee. Is this stealing? Is this wrong? Coulton apparently thought so.

Coulton complained on Twitter that Fox “never even contacted me.”

There seem to be a couple of assumptions being made by Coulton and others commenting on the case: one about copyright law and another about right and wrong.

The copyright issues are laid out in a Slate piece, but somewhat mangled:

“An arrangement like Coulton’s is technically called a ‘derivative work,’ because it is based on a pre-existing ‘original work’ (Sir Mix-A-Lot’s original rap song). In order to create his arrangement and sell it, Coulton obtained a compulsory (or ‘statutory’) license from the copyright holder, the Harry Fox Agency. Coulton himself does not own the rights to Mix-A-Lot’s lyrics, of course, but according to the U.S. Copyright Office, ‘the copyright of a derivative work covers… the additions, changes, or other new material appearing for the first time in the work.’

“Even if Fox got permission for the Glee cover of ‘Baby Got Back’ from Harry Fox (which they undoubtedly did), they are also required to seek permission from Coulton for use of his ‘additions’ — chords, phrasings, rhythms, and so on — that make his arrangement unique (and choirboy friendly). Of course, he’d have to prove in court that the two arrangements are, in fact, identical, but to our (admittedly nonexpert) ears, there’s very little question. Fox owes Coulton at least an apology — and probably a check, as well.”

This analysis is not quite right (I believe): Glee‘s cover of Coulton’s version need not be identical to infringe on his copyright; after all, Coulton’s own cover of the original version was not identical to it, yet still required a license in order to avoid copyright infringement.

The assumption here is that Fox has infringed copyright and has done something wrong — though it’s not clear exactly what the wrong was: Coulton’s complaint implies that Fox’s mistake was not contacting him first; others imply that using the song without giving him attribution was wrong (see, e.g., the comments by Andy Ihnatko in the most recent episode of This Week in Tech [TWiT]). Mike Masnick of Techdirt implies Fox has been a “bad actor” here.

As for the copyright issue: As Slate notes, Glee very likely already got a license for use of the original, just as Coulton himself did. I am not clear whether they might have also acquired a compulsory license for Coulton’s arrangement without Coulton himself being contacted, but even if they did not, as suggested on TWiT, their tactic might be to use the song and wait for people to ding them afterward, at which time they would pay the requested royalty.

In any case, copyright is itself wrong, so even if there was copyright infringement here, that does not imply that anything “wrong” was done.

As for complaints that Coulton did not receive attribution: Well, as far as I know, the Glee episode featuring the song has not even aired yet, so it’s not yet known whether there is attribution in the credits.

But in my view, even if there was no attribution credit given, there is still nothing wrong whatsoever here. It’s not as if the producers of Glee are being dishonest and claiming to have come up with the arrangement on their own; there is no “plagiarism” going on here.

In the TWiT discussion about this — which, ironically, follows a discussion of how a prosecutor’s use of copyright law threats against Aaron Swartz drove him to suicide — Andy Ihnatko bizarrely claims that this has somehow harmed Coulton, even though Glee is seen by millions and this is no doubt great PR for the marginally known Coulton.

Why? Because if Coulton performs his own version of the song in a concert, people might think he copied it from Glee. Even… though… we all know that they copied it from him.

I don’t get this reasoning. Does Ihnatko think only he knows about this? He is discussing a public story. That is, Coulton’s authorship of the version is already publicly known. Coulton had no trouble demonstrating this. (This is also one reason why copyright proponents’ worries about plagiarism are off-base. Not only does plagiarism have nothing to do with copyright infringement, but plagiarism is not a major problem; anyone plagiarized will easily be able to prove they authored the work first.)

In a free society with no copyright law, in my view, there is no ethical or moral obligation whatsoever to ask permission of an artist to use or copy or reuse or remix their earlier work, nor even to provide attribution credit. The only obligation is to be honest: to not dishonestly claim original authorship. But merely singing or performing someone else’s song does not mean the singer is claiming to have originated it.

As for attribution: Sometimes it’s called for, according to context, just as footnotes are expected in a law review article but not in an email to a friend. But this is more a matter of scholarly protocols than morals.

Copyright law is not only evil for the direct damage it does to individual lives, but because it has distorted our entire culture and makes people think of copying as wrong. It is not wrong at all. Copying is good. Learning is good. There is nothing whatsoever wrong with learning, emulating, remixing, and competing. Copyright law has confused the whole world, deluded almost everyone into thinking something harmless and natural is somehow icky and bad. How sad.

The whole history of the rise of art, from the ancient world until the 20th century, was all about learning from others, copying them, and improving on their work. That’s how progress occurs, not only in art, but in technology, literature, finance, and in the whole of civilization. This culture of learning is making a huge comeback, despite government’s attempts to stop it. That’s the same thing as saying that freedom itself is making a comeback.
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Stephan Kinsella is founder of the Center for the Study of Innovative Freedom (C4SIF), dedicated to building public awareness of the manner in which laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing, and a board member of the Laissez Faire Club. His book Against Intellectual Property is a Club selection. You can write him at his email.