Recently, the Harlem Shake took the Internet by storm. It seemed like there was a new video uploaded every 15 minutes featuring some group of people getting wild and crazy to the sounds of an electronic dance music (heretofore EDM) beat that demanded they “Do the Harlem Shake.” Many people pointed out that no one in these videos were actually doing the Harlem Shake. This did not keep some of us from loving those videos any less. However, this week it was revealed that all that Harlem Shaking may be leading to a Harlem Shakedown.
At the core of the problem are two samples featured in the first 45 seconds of “Harlem Shake” by Baauer. The first one is the person saying “con los terroristas” at the beginning of the song, and the second is the voice that says “Do the Harlem Shake” when the beat drops. These two clips are now a source of potential litigation and I, your very friendly copyright nerd, am here to explain why.
First, a small lesson in copyright as it relates to music. A piece of recorded music is actually two separate and distinct pieces of intellectual property. The first is the underlying composition, which encompasses both the lyrics and the written music. The second is the actual recording of that music. When you use a piece of recorded music, you have to get permission from the person who owns the copyright to the composition and the permission of the person who owns the actual recording of the piece. Most of the time, these are two different people, or more likely, one person and two companies. The person is the person who wrote the song, the companies are the publishing companies that licenses the copyright of the composition and the company that owns the recording (or recordings) of that composition. The writer and the recording artist may or may not be the same person.
Baauer evidently used the samples in his song without asking permission from anyone involved in them. This is not unusual in the EDM world. World famous artist Girl Talk sculpts his music entirely out of samples and has yet to actually clear (in this case meaning “gain legal permission to use”) a single one of them. By and large, these artists make their money performing in venues, and those venues usually have bought public performance licenses from Performing Rights Organizations (otherwise called PROs) who represent songwriters. This means that you can play any composition by a represented songwriter any way you like, and it’s perfectly legal. Radio stations are similarly covered by their licenses, so you can even play mashups or other songs with uncleared samples on the radio. However, none of Girl Talk’s works have gone public the way the “Harlem Shake” has, and so no one has come after Girl Talk. Thanks to several million YouTube hits and thousands of videos pouring in from around the globe, Baauer gained enough fame that it became worthwhile to pursue him for his uncleared samples. What’s the difference between playing the song on the radio or at a concert and having it on YouTube? Income.
When you play a song in a venue or on the radio, you don’t directly get paid for the song. You may have been paid to appear, but the composition itself is not earning you money. The public performance license that venues or radio stations pay for guarantees the right to play any covered song, because the PRO will then distribute its income to its members (in theory, anyway). So, the composer gets paid and everyone is happy. There is no public performance license for sound recordings, because for most of the time sound recordings have been available any performance of them was seen as a form of promotion for selling records, so record companies never pursued strong public performance rights for sound recordings.
Once that song starts making money on its own, though, is where things get sticky. Legally, the people who own the copyrights to the samples used are entitled to a portion of the royalties being earned from sales or from the income coming in through YouTube. Because Baauer didn’t seek permission and negotiate royalty percentages prior to the song becoming famous, the copyright owners have him over a barrel. Baauer could potentially lose any share of royalty money, or just end up in court for a long time before reaching a settlement that will include a pay-out and some healthy portion of future royalties. Either way, it’s a huge damper on what probably looked like a promising opportunity for him.
If you’ve got any other questions about Baauer specifically or music copyright generally, feel free to ask! I’m here to help.