Ed. note: This post appears courtesy of our friends at Techdirt. We’ll be sharing law-related posts from Techdirt from time to time in these pages.

Last week, we wrote about some of the copyright issues around the whole “Harlem Shake” meme (and, yes, we know it’s not the “real” Harlem Shake, so don’t even bother commenting about that). However, a few days ago, I was talking to an old friend who also happens to be an IP lawyer, and he pointed out one of the nuttier things about our copyright system. Yes, he said, Baauer is making tons of money by monetizing all of those Harlem Shake videos with ads. But Baauer actually had almost nothing to do with the popularity of the song or the meme itself. This isn’t a Psy situation, where his video/dance created the meme. Instead, as we discussed, there was this video, which led to this video, and then this video and then this video… and then tens of thousands of copycats bloomed.

Yes, they all use 30 seconds from Baauer’s song (which itself included many samples from others, some of which do not appear to be licensed, based on Baauer’s own statements), but the popularity was because of the original video by “Filthy Frank,” and then TheSunnyCoastSkate (TSCS) building on that to create the basic framework, quickly followed by PHLOn NAN and the folks at Maker Studios. In many ways, this reminds me of Derek Sivers’ popular discussion of the importance of the “First Follower.”

As he notes, it’s the “first follower who transforms the lone nut into a leader.” And then you have the “second follower” which represents a “turning point” in creating a movement. In this case, none of these key aspects had anything to do with Baauer. Yes, the song was there, but there were any number of songs that could have kicked off a similar dance craze. The reason the whole meme happened had to do with those originators, and the first few followers, turning it into a meme. I don’t think any of them are complaining. In fact, they all seem (quite reasonably) thrilled that they’re suddenly getting tons of attention and millions of hits (and plenty of new followers) for their role in building the meme.

But, when we step back and look at the copyright system, it does make you wonder why the system is so focused on Baauer’s ability to get paid, but not the people who actually made the whole meme what it is. In many ways, this is an extreme example of where copyright may be fundamentally flawed. Content becomes popular through cultural sharing. People talk about something amazing and it gets passed along. The “Harlem Shake” videos are a form of that, where the importance of everyone in the role of expanding the community and making the song/meme a cultural “thing” is that much more clear.

Historically, we’ve often lumped together the initial creative work with the eventual popularity of it, leaving aside the role of the community in making that work a hit. But the Harlem Shake is a case where we can actually separate out those two things, and realize that perhaps copyright is focused on only one part of our cultural setup, while ignoring what may arguably be the more important part: those who make something culturally relevant.

Now, I’m a big believer in learning to gain benefits without resorting to copyright, and it seems like the folks who really built this meme are being rewarded in their own ways, outside of the copyright system. But, for those who think that copyright is necessary to “reward” creators, and who argue that copyright is all about fairness in protecting the rights of creators, do the people who actually “created” the popularity around this meme not count?

Is It ‘Fair’ That Baauer Gets The Proceeds From Harlem Shake Videos, Despite Having Little To Do With Meme Popularity?

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