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

from the questions,-questions dept

Thu, Feb 28th 2013 9:52am — Mike Masnick

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?

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Filed Under: baauer, copyright, first follower, harlem shake, meme, viral

35 Comments

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Anonymous Coward, 28 Feb 2013 @ 10:05am

Can't someone get a performance licence and then claim the revenue from their own video? Would that make Baauar claiming the copyright a fraudulanet act?
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Designerfx (profile), 28 Feb 2013 @ 10:07am

said it myself
I said the same thing. He deserves neither proceeds nor credit for Harlem Shake. He's just exploiting the entire process and riding the wave.

Where's the proof? it's that when this is over he'll fade right back into general irrelevance.

He's being rewarded as if he were the creator, and that's an insult to the people who came up with it.
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Ninja (profile), 28 Feb 2013 @ 10:10am

Re: said it myself
To be fair he should be credited anyway. That's fair. However ppl are building derivative works and they should be the ones monetizing that work, not him.
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Anonymous Coward, 28 Feb 2013 @ 10:13am

It seems like copyright law could benefit from lessons learned from trademark law. If a trademarked term becomes generic, the holder loses the trademark. Perhaps when a copyrighted work becomes a cultural phenomenon like Harlem Shake, the copyright holder should lose the copyright for similar reasons.
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Zakida Paul (profile), 28 Feb 2013 @ 10:14am

Is it fair..
That we have to be subjected to so many takes on the original video which is a load of bollocks to begin with?
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johnjac (profile), 28 Feb 2013 @ 10:16am

WOW!
http://www.theverge.com/2013/2/28/4039718/wow-all-the-way-down-donald-trump-sparks-twitters-latest-w eird-meme
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Anonymous Coward, 28 Feb 2013 @ 10:22am

Obviously it's because this song has a rising sound, and then he drops a beat. No other dubstep song has EVER done that.
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Zakida Paul (profile), 28 Feb 2013 @ 10:24am

Re:
My dial up sound used to

\whistles nonchalantly.
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johnjac (profile), 28 Feb 2013 @ 10:26am

WOW!
http://www.techdirt.com/articles/20130227/02342022129/is-it-fair-that-baauer-gets-proceeds-harlem-sh ake-videos-despite-having-little-to-do-with-meme-popularity.shtml#c95
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Tostie14 (profile), 28 Feb 2013 @ 10:30am

Re:
So you're saying that things like The Hunger Games, Twilight, Gangnam Style, and other things that became cultural sensations within the last 20 years should be public domain? Then there would be no incentive to make any product that cost significant amounts of money as anybody could monetize it, which meant that those who financed it would rarely if ever see their money back.

I'm fine with the original copyright terms (pre-Sonny Bono extensions) applying to all media, so that things like Mickey Mouse should now be in public domain.
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jupiterkansas (profile), 28 Feb 2013 @ 10:36am

Baauer and the creators of the Harlem Shake videos should split the ad money. Reward the creators all the way down the line.

Copyright presumes only one person can be creative, and everyone else that does anything creative owes everything to that one person.

But again, this isn't about copyright. It's about Google's system. It's not designed to share ad revenue with more than one person.
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Michael (profile), 28 Feb 2013 @ 10:36am

"the role of the community in making that work a hit"

Preposterous: If someone is a content creator, the marketing costs in forcing the public to consume it are a creative expense of that creator or their distributor! These crowd-sourced marketers must have been well-compensated in order to perform their services, or they wouldn't have done it!

Or:
How could anything not be driven by money? Therefore, let money control everything.
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Chancius, 28 Feb 2013 @ 10:59am

This very same issue has been on my mind recently
I'm a musician finishing up my newest album and making plans to market this new release. Of course I have to make a video. Two options have come to my attention. Do I pay someone to create the video for me (to potentially reap the income stream all for myself) or do I find someone to collaborate with who will make the video for free (to share the income stream together)? Honestly, I feel like the second answer is the more honest and fair solution and the second is the solution of the old music industry gatekeepers.

Anyone want to add their advice or thoughts?
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Anonymous Coward, 28 Feb 2013 @ 11:11am

First I would thank the community for reporting most of the troll responses before I read the comments. There were a couple left indicating that the troll now has a troll; what juicy irony.

If I find an ISP not on this program my present ISP can just kiss it when I do. It's not about piracy, it's about what I consider lack of customer service.

This in no way slows down the sneaker net which is not traceable through these means. Should my ISP make the mistake of false accusation, I'll drop them over that false claim in a heart beat if only to deny them income after this action.
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Anonymous Coward, 28 Feb 2013 @ 11:21am

Re:
It's better to just cut the head off the snake. If copyright only applied to unpopular works, but not mainstream ones like MLP:FiM, Game of Thrones, and Harlem Shake, then some people would be tempted to keep there works locked up just for the sake of copyright.
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Anonymous Coward, 28 Feb 2013 @ 11:47am

Re:
Sure, the cost of the license would theoretically give you the right to collect.

In reality, why would he sell you a performance license for less than he is getting now?
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Anonymous Coward, 28 Feb 2013 @ 11:51am

Re: Re:
None of those things that became astounding cultural phenomena required the promise of becoming cultural phenomena in order to get made. The proof is in the millions of other creative works made every day which keep getting made despite not becoming cultural phenomena.
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ltlw0lf (profile), 28 Feb 2013 @ 12:00pm

Re: Re:
I'm fine with the original copyright terms (pre-Sonny Bono extensions) applying to all media, so that things like Mickey Mouse should now be in public domain.

If by original, you mean 14+14, then I can agree with you. 14 years with one 14 year extension sounds perfectly fair to me. If you cannot monetize a work in 28 years, then maybe it should be left to the professionals.
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Tostie14 (profile), 28 Feb 2013 @ 12:40pm

Derivative Works
The framing at the end of this article about the eventual popularity of the original creation reminds me of Shepherd Fairey's use of a Getty photo that likely would never have been seen or used again, and he transformed it into a new artwork that became iconic (the "HOPE" poster). He shouldn't have lied about where he got the photo and/or deleted evidence, but clearly there wasn't a huge market for Getty for that specific photo PRIOR to Fairey's derivative work.
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Tostie14 (profile), 28 Feb 2013 @ 12:42pm

Re: Re: Re:
Yes, I meant the 14+14, and the extension is not an automatic renewal. This will help prevent orphan works and will bring back the original intent of inspiring others. I mean, you don't allow patents to be renewed for hundreds of years, so why should media be different?
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Anonymous Coward, 28 Feb 2013 @ 12:48pm

Re: Re: said it myself
Or more to the point, there is no way in which it is fair not to economically compensate the creators of the videos! How they split the revenue is a usually a negotiation or a forced fee, but not paying them is beyond any doubt what the content industry calls theft! Welcome to hypocricy times infinity...
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Anonymous Coward, 28 Feb 2013 @ 12:56pm

Re: Re: Re:
The problem is that today a not insignificant part of the economy in the world is based on culture getting created and economically incentivised by private entities. Just removing their incentive like that is not likely to be a happy story for any country doing so as long as the rest of the world doesn't follow suit. Not because it wouldn't benifit said nation if done correctly, but because the rest of the world would with WIPO and WTO in front would lead a trade war of unprecedented proportions against the country.
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ltlw0lf (profile), 28 Feb 2013 @ 1:11pm

Re: Re: Re: Re:
Yes, I meant the 14+14, and the extension is not an automatic renewal. This will help prevent orphan works and will bring back the original intent of inspiring others. I mean, you don't allow patents to be renewed for hundreds of years, so why should media be different?

I agree whole-heartedly. At least with patents, we have a very short (though very long for innovation and creativity,) period of time in which the trolls can do their evil. With copyrights, the trolls last forever.

Of course, using copyrights to inspire others doesn't seem to be the reason for copyrights, since derivative works are outlawed (with very little play for "fair-use" except when you have a lot of money or own a lot of lawyers.)
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Anonymous Coward, 28 Feb 2013 @ 1:46pm

Re: Re: Re: said it myself
not paying them is beyond any doubt what the content industry calls theft!

What the content industry calls theft is any use of any content where they do not get paid, the creator will only get the crumbs is they can't find a way to add to the charges against their share.
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Anonymous Coward, 28 Feb 2013 @ 2:07pm

Copyright isn't a fair law, it doesn't acknowledge or rewards the work of everyone involved.

Copyright also will never be able to balance that because ti can't separate what is the work of others and what is not.

Copyright like any other monopoly is a power grab that only benefits one person and that is it.
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TroutFishingUSA, 28 Feb 2013 @ 4:41pm

Re: This very same issue has been on my mind recently
Speaking from experience in so-called 'pro bono' work, both as receiver and supplier of said work, I suggest that you pay for a video. Or work out a reduced rate in exchange for a split of the ad revenue (warning: we're talking about splitting up pieces of pennies here). I think it's a bad idea to solicit free work, you get what you pay for.

Does your friend who makes videos also do professional paid work? If that is the case, then asking for or accepting free work may turn out to be a major headache down the road. What if s/he provides you with the video, and you want some changes made, but the filmmaker has moved on to more pressing paying clients? You'll be left out to dry. Trust me, this shit happens all the time. I just spent time this afternoon scolding and cleaning up after a "little brother" band I work with for soliciting free work who is now going through exactly this problem. (The video was sync'd with one cut of the track, but then the band got the music remastered and wants the video guy to re-cut it. Rightfully, video said, "Fuck you, I've got paying clients to worry about," and now the band is throwing a hissy fit. They were stupid to think they'd get a pro job at no cost, doubly stupid for going back and expecting more free labor, and the editor was silly to take the job in the first place. Sigh. Don't start a net label).

The best, and I mean *amazing*, collaborations I've been involved with have always been the ones where everybody is getting paid. People are much more at ease, everyone knows what's expected of them, and bringing up things like overtime isn't as prickly because everyone knows they're going to get reimbursed for every ounce of effort they put in.

Also, you're a musician, don't you get tired of being constantly asked to perform for free? This shit is endemic in the creative world. It's an insult to everyone involved. Pay for what you want. And as a bonus, you get to yell at people for slacking!

Oh, Chancius. I think I've seen you post elsewhere on the net. Small world. I hope things are going well for you.
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TroutFishingUSA, 28 Feb 2013 @ 4:45pm

Re: Re: This very same issue has been on my mind recently
I should mention one scenario that occurs to me at the moment where working for free can lead to great results: charity work. Say, you and a filmmaker collab on a video and arrange for all the proceeds to be donated to a charity or cause you both support. That sort of thing can work out well.

Still... anyone worth their salt in the business is more than wary of doing free work, and for good reason. The horror stories of pro-bono work go wrong are numerous enough to fill an ocean.
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Ninja (profile), 1 Mar 2013 @ 2:10am

Re: Re: Re: said it myself
It's amusing that you fail to see that most artist have some sort of influence. Are you implying we should all be paying Phoenicians for using the alphabet? These cases may be more nuanced as they are mash ups or something that directly uses the original work but still, it's the original creator that owes them one for making his song super famous.

Your sense of entitlement is disgusting.
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Sun, 1 Mar 2013 @ 6:31am

Response to: Anonymous Coward on Feb 28th, 2013 @ 10:22am
The techcrunch article gives a good analysis of the meme. The op is wrong in thinking that the song could be easily replaced with another. The track specifically starts with a build up, peaks in the middle, explodes with dancing scenery, then stops with a slowed down roar sample. All of this within thirty seconds allowed for it to flourish. There's a structure to the meme and it is short... Perfect conditions for the web.
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Anonymous Coward, 1 Mar 2013 @ 7:55pm

The real question is this
Where is Techdirt's Halem Shake video??

Come on, you guys.
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btrussell (profile), 2 Mar 2013 @ 7:00am

Re: The real question is this
Have an Easter egg!
https://www.youtube.com/results?search_query=do+the+harlem+shake
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Chancius, 2 Mar 2013 @ 10:32am

Re: Re: Re: This very same issue has been on my mind recently
Thanks for the advice and info!

Yeah, I've learned while paying for this album that if you hook up with the right people, pay them fairly, and treat them with respect it will all benefit you greatly down the road. The studio I'm working with has taken off hours of work time and been able to bring in others to contribute for free because they enjoy the music we're making and we get along so wonderfully.

I like your idea of offering to pay for a video at a reduced rate for a split of the income stream which I hadn't thought of before. This is something I'm going to be investing $ into marketing and hopefully with the great product we've produced I'll see some return when it comes to streaming. We'll see though.
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Lorraine, 3 Mar 2013 @ 10:04pm

Baauar should not get payed, because he broke copyright laws by using clips from other artists without licensing. Why should he deserve protection from copyright law but all the original artists of the clips he used in his creation don't. Baauar should be forced to pay royalties to the artists that he copied and remixed into is song.
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Brent (profile), 5 Mar 2013 @ 1:09pm

Why does this apply so strictly to audio recordings? If a poster or painting is visible in the background of a video, why doesn't the artist earn some money for that? Hearing a song is not the same as owning a license to that song, seeing a poster/painting is not the same as owning the physical poster or a license to the digital version so why does one type of artist get paid and not the other?
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Jessie, 7 Apr 2014 @ 9:54pm

It's fair
Afterall it's his song so he should get payed he makes awesome music
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