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Legally Right isn’t the Same as Ethically Right: Glee and Jonathan Coulton

Jonathan Coulton

Brands would do well to take note of the dust-up between large network FOX and Jonathan Coulton.

Glee is a musical comedy-drama about a high school glee club. The characters of the show are often at the bottom of the pecking order among the student body, being tossed into dumpsters or having slushies thrown in their face are frequent occurrences  Key themes of the show are overcoming bullying and choosing to do the right thing despite all adversity. The show features covers of songs across a wide range of musical genres, and often features covers of mashups or a cover of a cover.

Jonathan Coulton is a singer and songwriter whose music is primarily about geek culture and has made use of the Internet to build an audience. If you’ve heard his work it was likely in the end credits to the Portal games or one of his thing-a-week songs like Code Monkey or Re: Your Brains or his unique cover of Sir Mix-a-Lot’s Baby Got Back. And it is that cover where Jonathan and Glee cross paths.

Jonathan learned that episode 4×11 of Glee would be featuring a cover of his Baby Got Back. It would seem more than a cover, though, as the timing and instrumentation of Glee’s version seems to mirror Coulton’s almost exactly; suggesting that the original recording was appropriated. The song aired and FOX through the Glee Facebook page began promoting the sale of the music on iTunes where, collectively, Glee track sales are in the millions of dollars. It’s important to note that outside of any question of financial compensation, Jonathan was never contacted and although one report has the script actually saying “Jonathan Coulton’s Baby Got Back” there has been no credit on the show or public acknowledgement by Fox that the arrangement was Coulton’s. Without any credit or even a link pointing to his site, Jonathan is told through back channels that he should just be happy with the exposure he’s getting.

Now, FOX is within their legal rights to have used the song, and there was no legal obligation to involve Jonathan in any way. there is a question as to whether the recording is Jonathan’s or not. In all likelihood it is, but the time, expense and aggravation of going toe to toe with the stable of lawyers make it an unlikely pursuit for an indie artist. So effectively FOX is on firm legal grounds. The legal department would be rubber stamping this as completely kool and the gang. But the actions were not that of a good citizen. The actions did not reflect the brand of the show. FOX played the role of large burly jock throwing a cold slushy into Coulton’s face.

FOX has been taking a keep quiet and ride it out approach, but Coulton’s fans are not forgetting. Posts to the Glee Facebook page calling for recognition and apologies to Coulton continue. Coulton himself has shown himself to be a class act. First by calling for restraining by his fans, and insisting this not be a war between his audience and Glee’s. Second, by releasing a Baby Got Back (In the Style of Glee), a cover of Glee’s cover of his cover on iTunes, with a promise to donate the proceeds to charity. The story reverberates through the geek and Internet press and is filtering its way into the mainstream.

FOX can hope to ride out this media cycle and hope that it’s forgotten, but there are a number of events that will keep this story recurring. Jonathan has not yet determined if he is going after FOX legally for the appropriation of the recording. It’s my hope that he doesn’t, because we’re all better off with Coulton making and recording songs as opposed to wasting away hours in meetings, depositions and hearings. But whichever choice he makes dredges the story back to the forefront. Then there are the results of his clever cover of the cover of the cover. If it surpasses the Glee recording in sales, if it makes any significant amount of money, it becomes a story with further amplification by way of the charities being supported. FOX is painted as the money grubbing thief and Jonathan as the hero artist. It’s a David and Goliath story to fill empty column inches pretty much any point. Never mind what will happen if this season features another legally appropriate but ethically sketchy use of an artist’s work.

FOX may try to issue a non-apology. We’re sorry you’re offended but we didn’t do anything wrong. That works when you’re on a firm foundation of trust with your intended audience and are standing with the angels, and I don’t know if either is the case when we’re talking about FOX. In this case it will merely fan the flames.

You can be legally right in a court of law, but it won’t help you in the court of public opinion. And at the end of the day, it is that court of public opinion that is the make or break for a brand. A brand is nothing save for the perception of what it represents.

What should FOX do? If I were driving the ship, here is what I would recommend:

  • Issue an apology. A real apology that acknowledges that what was done in the past was wrong, and will not be repeated. This apology should be issued not just to Coulton but to all artists whose works have been pulled into the show. Make it clear that while within the legal rights to act as it has, the show has a responsibility to do more than just the minimum legal requirement. 
  • Show how things will change. I would make it a written policy that all artists permission is sought before the use of a cover, that credit is given both in the show itself and on the tracks via song title or other metadata, and include base financial compensation.

In my opinion those are the only moves FOX can take that will do away with the stream of displeased fans who are having trouble reconciling the brand of their favourite show with the behind the scenes actions. What’s more it will completely win over those who have turned away and possibly win over new fans.