Copyright, Intellectual Property, Music

Did You Honestly Expect the Harlem Shake to Be Free of Copyright Violations?

Come on, of course there are intellectual property violations here.

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Everyone loves doing the Harlem Shake, the latest dance craze to take YouTube by storm. Your friends have done it, law students have done it, and even Justin Timberlake has done it on Saturday Night Live. It’s a cultural phenomenon, and everyone wants to get involved, but eventually, the fun has got to stop — and as is usually the case with these viral videos, that stopping point comes quicker than a former Biglaw partner having a mid-life crisis.

This time, the fun is stopping because the ultimate party-killers are now on the scene to assess the damage. That’s right: lawyers are poking their noses into the Harlem Shake because of — you guessed it — copyright violations.

Let’s talk about the underlying legal claims before you feel the need to put on a Halloween costume in March and violently flail around to a 30-second music clip on film….

In just 30 seconds, Baauer (né Harry Bauer Rodrigues), managed to violate not one, but two artists’ copyrights by failing to get permission to sample their songs. Here’s more information from the New York Times:

Neither [reggaetón artist Hector Delgado nor rapper Jayson Musson] gave permission to the song’s producer and writer, Harry Bauer Rodrigues, who records under the name Baauer, to use snippets of their records, they said. “It’s almost like they came on my land and built a house,” Mr. Delgado said.

Both Mr. Musson and Mr. Delgado are seeking compensation from Mad Decent Records, which put out the single last year.

Note for law professors: perhaps consider a class on adverse possession in the music industry?

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So, as many lawyers know, in the music industry, it’s standard practice to obtain licenses before sampling music from other artists, but legal problems present themselves when that step is forgotten. When people find out they may be entitled to royalties, they get pissed off that they weren’t consulted in the first place. But unfortunately, small record labels are sometimes, well, too small to take these preventative IP measures:

[S]mall labels, like Mad Decent, sometimes lack the resources to have lawyers vet releases and instead rely on producers to make sure recordings are free of copyright problems. These labels frequently have little to do with the production of the tracks, especially in electronic dance music.

“You don’t have the same checks and balances that you would if it were done by a corporation with a legal department,” said David Israelite, the president and chief executive of the National Music Publishers Association.

So what you’re saying is that you need a lawyer who’s willing to work on the cheap to assist with your music licensing? Let us point you in the direction of the thousands of underemployed and unemployed law school graduates who’d love to help you avoid future problems like this. You can thank us later.

Musson is currently in “friendly” negotiations with Baauer’s label, but Delgado and his former manager seem like they’re ready to rumble, threatening to “turn around and stop that song.” Here’s what seems to be a workable way to resolve this matter: hold a settlement conference and force them all to do the Harlem Shake until one of them agrees to an appropriate royalty payment or has a seizure. Sounds fair, no?

P.S. In case you were wondering, Florida State had the best rendition of the Harlem Shake. Congrats!

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Surprise Hit Was a Shock for Artists Heard on It [New York Times]
Artists say ‘Harlem Shake’ sampling done without permission [ABA Journal]

Earlier: Is It ‘Fair’ That Baauer Gets The Proceeds From Harlem Shake Videos?
The Harlem Shake Takes Law Schools By Storm

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