Verizon Steps In On Prenda Case; Says Brett Gibbs Never Informed Them Of Judge's Order Killing Subpoenas

Artists Sampled Without Permission In 'Harlem Shake' Song Demand To Get Paid

from the and-here-comes-copyright dept

Mon, Mar 11th 2013 1:23pm — Mike Masnick

Back when "The Harlem Shake" first went viral, we pointed out that it was a bit hypocritical of Baauer to use copyright to issue a takedown on a version of the song he didn't like when it was clear from his own statements that the song itself was a mashup of samples from others which he did not license. Later we wondered why it was proper that he was the one who mostly cashed in on the viral meme, since he had basically nothing to do with making the song viral.

Either way, there's no doubt that Baauer and his label, Mad Decent, clearly made out nicely for a song that had been out for a while and hadn't really set the world on fire until the meme took off. And, of course, once people start making money, out come the copyright claims. Apparently, multiple artists, whose works were sampled on Baauer's "Harlem Shake," are now demanding cash from Mad Decent.

The people who spoke the two key "lyrics" in the song, "con los terroristas," and "then do the Harlem Shake," have both complained about the use of the samples. The "con los terroristas" line came from a former reggaeton singer turned evangelical preacher Hector Delgado, who went by the stage name Hector El Father. The "do the Harlem Shake" line was from Jayson Musson as part of a song for the Philadelphia rap collective Plastic Little. Delgado seems to be overplaying his hand a bit:

"It's almost like they came on my land and built a house," Mr. Delgado said.

No, actually, it's nothing like that. At all. Because it didn't take away from his song, which very few people knew about before. If anything this has suddenly increased interest in Hector's former professional works.

Musson's approach seemed a lot more reasonable in recognizing the reality of the situation:

Mr. Musson said he called Mr. Rodrigues and thanked him for "doing something useful with our annoying music"

But, of course, he still wants a cut.

That's not to defend Baauer, of course, who had no problem pretending he could claim copyright over the work, despite not licensing the original samples. Oh, and as for who's going to get paid in the end, it sounds like it may be Universal Music. Apparently, Delgado's work was released on a label owned by Universal, so you'll have to image they'll get involved soon enough:

Since that call, Mr. Gomez said, lawyers for Machete Music, which is owned by Universal Music Group, have been negotiating with Mad Decent over payment for the sample.

"Hector will get what he deserves," he said. "We can turn around and stop that song. That's a clear breaking of intellectual property rights."

Gomez is Delgado's manager. Of course, if he released it under Universal, one wonders if Hector will get anything at all, or if Universal will declare any proceeds for itself, claiming that Delgado has not yet recouped any advance...

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Filed Under: baauer, copyright, harlem shake, hector delgado, hector el father, jayson musson, plastic little

30 Comments

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DannyB (profile), 11 Mar 2013 @ 1:28pm

Who'e going to get paid in the end?
The lawyers.

As for Baauer: live by the copyright, die by the copyright.
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Anonymous Coward, 11 Mar 2013 @ 1:40pm

Typical copyright industry insiders, someone is making money and used a bit of our work, so we want our share.
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Anonymous Coward, 11 Mar 2013 @ 1:55pm

Low visibility dance music like this does not have the budget to actually secure these rights, and because it's unlikely it will ever be found out, it's common practice to just wing it. Here, everyone got lucky when it hit. Should the guys who got sampled get a piece? By all means. That appeals to a basic sense of fairness, no? But, what size of a piece? That's the rub and once the lawyers come in it becomes "I want it all because otherwise I'll sure for statutory damages." That's when it becomes a mess. Wouldn't be surprise if the sampled artist are asking for 100% of the publishing, if not a piece of the master (lol music rights) and it's probably a situation where the fees demanded equal more than 100% (meaning Baauer has to shell out cash each play). Entirely possible. Mo plays mo problems, but still sad that the screws get turned on the person who helped create this sudden windfall.
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Anonymous Coward, 11 Mar 2013 @ 1:58pm

as soon as there is a wiff of money, everyone runs in to get paid and the lawyers get rich then the studios. LE sigh.
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AdamR (profile), 11 Mar 2013 @ 2:04pm

"No, actually, it's nothing like that. At all. Because it didn't take away from his song, which very few people knew about before."

No, actually I knew it was him, he was one the bigger reggaeton artists out there before and after the the genre exploded out to the mainstream well over decade ago.He was suppose to be the Spanish Jay Z before he turned to religion.
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Anonymous Coward, 11 Mar 2013 @ 2:05pm

Re:
You forgot to mention the artists go deeper into debt, as lawyers fees are passed onto them'
/sarc
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Nastybutler77 (profile), 11 Mar 2013 @ 2:07pm

Re:
"No, actually, it's nothing like that. At all. Because it didn't take away from his song, which very few people knew about before."

No, actually I knew it was him...

Then you're one of the few that he mentioned. So, yes.
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Nastybutler77 (profile), 11 Mar 2013 @ 2:09pm

"We can turn around and stop that song. That's a clear breaking of intellectual property rights."

Ha. Good luck stopping that song. Only when it's run its course will it stop, and you have no control over a meme.

I do hope it stops soon though.
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Internet Zen Master (profile), 11 Mar 2013 @ 2:09pm

Excuse me?
"We can turn around and stop that song. That's a clear breaking of intellectual property rights."

Well Mr. Gomez, unless you have a blue-policebox-shaped-time-machine-that's-obviously-not-violating-Doctor-Who-copyright handy, I frankly don't see how you can stop the Harlem Shake. It's gone viral on the Interwebz, it's been copied ad nauseam through Youtube videos, and it (unfortunately) appears to be the first "Gangnam Style"-type song/meme of 2013.

I guess you could try and force radio stations to stop playing the Harlem Shake (I only know of one in my local area, and they're shtick is community-oriented EDM).

The geniecat has been released onto the interwebz. Good luck trying to force it back into its bottlebag.

So will Universa-I mean, Delgado ever get paid for his unlicensed sample?

The Zen Master says, "We'll see."
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out_of_the_blue, 11 Mar 2013 @ 2:11pm

Great! Keep concerning yourself with FAIRNESS, Mike.
"Later we wondered why it was proper that he was the one who mostly cashed in on the viral meme,"

If you'll just focus on FAIRNESS, you'll eventually be forced to agree with me that Kim Dotcom should NOT get millions from what he didn't have anything to do with. Nor do pirates have a right to share what they didn't create. Giving rewards to those NOT involved is just plain wrong. -- And then your fanboy base will abandon you, because despite denials, you're just giving excuses to pirates.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where Mike sez: uploader + file host + links site + downloader = perfectly "legal" symbiotic piracy.
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Anonymous Coward, 11 Mar 2013 @ 2:13pm

s/image/imagine
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Anonymous Coward, 11 Mar 2013 @ 2:21pm

"If anything this has suddenly increased interest in Hector's former professional works."

Because and only because he complained. Otherwise people would have thought it was an original song. Complaining brought a "Streisand" effect. Otherwise he would still be a complete unknown.

How would you let everyone know you made that part without asking for money (it's a legit question) and still get the same kind of (positive or negative - depends on your view point) exposure?
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That Anonymous Coward (profile), 11 Mar 2013 @ 2:35pm

Is it just my mind cobbling things together or did the music industry get stupid about the time they decided every sample needed to be licensed and worked on setting rates as high as possible, ignoring they were shooting themselves in the foot?
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Internet Zen Master (profile), 11 Mar 2013 @ 2:41pm

Re:
...... Good question.

And yeah, complaining is usually what brings about a Streisand Effect. However, what's important is if people care enough to keep the effect going. In other words, people don't just respond with an indifferent "So?" when told that Hector was sampled without getting paid, and don't try to find out just who Hector Delgado is.

I guess the only way he could let everyone know that he made that sample would to go "Uh, Baauer, you do know you're using a sample from me right? Could you give me credit or something please?"

But that just doesn't care much weight in the world of music I guess.
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anonymouse, 11 Mar 2013 @ 2:43pm

Re: Who'e going to get paid in the end?
Maybe the new creation that has brought the original artists back into the limelight should actually be claiming part of the money they have made due to their including his clip into the song.

Seriously this should be fair use if anything should, it is a completely new song with a few samples that are mashed together and only made money from becoming a meme. This should go to court in the country where it was created and any judge should see it as fair use, or give the artists that work was used 0.005 percent of any money made for each artist if they go on demanding to be paid.
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jupiterkansas (profile), 11 Mar 2013 @ 2:45pm

Re:
Short term profits often lead to long term problems. I doubt the people in the industry then are having to worry about the problems they caused now.
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Anonymous Coward, 11 Mar 2013 @ 2:53pm

Re:
This is why we need a definitive exception based solely on the transformation. If you use part of a work to create something definitively unique, it becomes it's own work and therefore, without a prior contract stating that there was an agreement to license, there is no infringement.
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crade (profile), 11 Mar 2013 @ 3:00pm

Re: Re:
right, the answer to the shitstorm that is copyright law is to make more complication subjective exceptions, like it isn't so complicated enough that no one knows whats going on as it is.
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crade (profile), 11 Mar 2013 @ 3:08pm

Re: Re:
Right, if the complaint is unjustified, no one cares, you get a collective "so", and not much comes of it.
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John Fenderson (profile), 11 Mar 2013 @ 3:11pm

Re:
Your mind is right. They got stupid. Negativland put out a lot of very well-written and intelligent commentary on this very issue (as well as some hilarious on-the-point mashups).
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shane (profile), 11 Mar 2013 @ 3:38pm

I saw....
"Artists... demand to get laid."
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Anonymous Coward, 11 Mar 2013 @ 4:34pm

An old case of FBI entrapment.

"But then, after 9/11, things changed at the FBI. Though the agency had been warned how unreliable Habib could be, his experience and language skills suddenly made him a hot property, and different FBI bureaus were fighting over him."

The travesty in all this is that the reason why they were so desperate to hire this guy is that no one working for the FBI can speak two languages. I know a lot of middle Eastern's that speak three, four, or even five languages (and even more) fluently.

http://www.thisamericanlife.org/radio-archives/episode/387/transcript

Just shows how dumb our government really is. These guys are supposed to be about gaining foreign intelligence but none of them can speak more than one language. Like the TSA, our government isn't securing anything but their jobs.
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Anonymous Coward, 11 Mar 2013 @ 4:35pm

Re:
(well, the FBI is supposed to be domestic, but still)
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Anonymous Coward, 11 Mar 2013 @ 4:47pm

Re: Re: Who'e going to get paid in the end?
Usually you either attribute or pay someone. In scientific circles attribution is essential for the carreers of the scientist, in copyright-circles it is money that grease the dirty wheels. Not giving any is pretty much the anti-thesis of the existing system. The bringing of interest in the original work takes attribution to actually happen. In this case it is news-media spreading that information and while good for the original creator, it rightly is an issue that Baauer did not do it or demand it!

Now the suing is just as much a media-stunt to get the recognition for their original works as it is for money. It just so happens that to sue private people or companies you need to proove damages and the only way to establish damages in these cases is through a copyright of some kind. Now, just to avoid the worst techdirt-rage: The copyright as it exists today is being abused and is covering far too many things at far too many different lenghts to be anything but an abomination. Also I would claim that the users making the videos have more of a case for Baauers money as they do not necessarily gain anything from Baauer stealing commercial space on their videos.
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Anonymous Coward, 11 Mar 2013 @ 4:48pm

Re:
Here is a hint. EVERYONE working for the FBI or CIA as an intelligence gatherer should at LEAST be fluent in a second language. If you work for the FBI/CIA and all you speak is one language then you don't belong. You don't have the merit, the qualifications, and the hard work ethic required to work a government job and taxpayers should demand you earn a living in the work force instead of being a lazy dumb idiot stealing your living from taxpayers because you don't even have the merit or hard work ethic to learn a second language, something that should be required and goes with any intelligence job. The FBI/CIA should never be in a rush to find someone who speaks language X, everyone working there should at least have the merit and work ethic and knowledge to speak a second language so that they can easily find people who speak most target languages. Otherwise, don't waste our taxpayer money.
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Anonymous Coward, 11 Mar 2013 @ 4:52pm

Re: Re:
Lazy and dumb FBI employee says "But learning a second language is hard work and I don't want to work hard"

Then what are you getting paid to do all day, sit on your butt and do nothing? Yeah, you're getting paid to work and work is hard, but if you want to be an FBI/CIA agent speaking at least a second language fluently goes with the territory. If you don't you should be fired you dumb lazy parasite, stop wasting our taxpayer money not working.
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Anonymous Coward, 11 Mar 2013 @ 4:59pm

Re: Re: Re:
and I guess the word I'm looking for here is 'discipline'. If you don't have the discipline to learn a second language then you don't deserve to waste our taxpayer dollars working for the FBI/CIA.
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Ninja (profile), 11 Mar 2013 @ 5:06pm

Re:
The only ones that win in this case are actually the lawyers... Regardless of who claims what. Have a +insightful dear sir
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Ninja (profile), 11 Mar 2013 @ 5:10pm

Gosh the song is horrible, they just managed to get attention because of the insanely funny meme.. Copyright at its finest.
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Anonymous Coward, 12 Mar 2013 @ 12:50am

It makes sense that only the last guy to build on a bunch of people's works should collect the lion's share of the profits and benefits from doing so. That's why they only give medals to the last guy in a relay. Duh.
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