Last December, Federal Communications Commission Chairman Ajit Pai starred in a “PSA” produced by The Daily Caller. In the video, Pai addressed all the “trolls” in the net neutrality debate, reassuring the public that they will still be able to enjoy things on the internet after its repeal. To illustrate this, Pai does the absolute polar opposite of an enjoyable thing on the internet: the Harlem Shake.
Curious as to whose idea this was, I filed a FOIA for emails between The Daily Caller and the FCC, as well as any talking points regarding this huge PR coup. Four months later, the FCC responded. The agency found two pages of emails but would be withholding them in their entirety under FOIA’s infamous b(5) exemption regarding deliberative process.
This isn’t even the first time the FCC has used b(5) to deny access to records regarding Pai starring in an embarrassing video – the agency rejected Gizmodo’s request for records relating to a comedy skit in which Pai joked about being a “Verizon puppet,” similarly under b(5).
Read the rejection letter embedded below or on the request page. If you’re interested in Pai and the fight for net neutrality, you can check out his calendar here.
You will remember the nation of Tunisia for being a flash point of the Arab Spring revolution, in which social media and the internet played a massive role, as well as for the post-revolution government’s subsequent crackdown on those tools that brought them into power. There seems to be something of an ongoing problem within Middle East governments, in that they simply don’t recognize how to handle popular dissent, often taking on the very characteristics of the dissenter’s complaints to an almost caricature level. In that respect, while it may sound silly, any government learning to deal with the open communication system of the net is going to have to come to terms with memes and the manner in which they spread.
Which brings us back to Tunisia. They seem to have a problem with this Gangam Style, Harlem Shake combo-video produced by some apparently fun-loving Tunisian students (the original was taken down due to a highly questionable copyright claim, by the way, because while even the Tunisian government wasn’t evil enough to block the video, a bogus DMCA claim had no such qualms).
They danced en masse to the song and posted their exploits on YouTube. That prompted a quarter of a million hits and reports of an investigation by the country’s minister of education and that prompted a backlash. Video after video after video of Tunisians proudly doing the Harlem shake in defiance.
Dear Tunisian people: congratulations! You’ve officially been made full members of the internet community now that you’ve engaged in trolling your own government as a form of protest. It’s only a matter of time before you’ll be naming soft drinks after fluid-expelling geriatrics.
Over in Egypt, the government didn’t stop at a simple investigation, however. Four students were arrested for taking part in this Harlem Shake video shot in front of the Giza pyramids.
The response? A massive protest Harlem Shake performed directly in front of the Muslim Brotherhood’s headquarters.
Sorry, Middle East governments, but the people have spoken, and they want their damned memes. And, actually, that brings to mind the obvious question: how the hell are memes a threat to you to begin with?
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…
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?
For those of you who have managed to avoid the viral sensation of February, known as “The Harlem Shake,” consider yourselves lucky. People still seem at a total loss how this became “a thing,” but it involves the opening 30 seconds of a song released nearly a year ago, called The Harlem Shake, by Baauer, with the first half involving someone in a wacky costume (often involving a helmet) dancing while others around them ignore it, followed by a bass drop and suddenly everyone around is dancing crazily, often involving costumes, stuffed animals (or real animals), people in sleeping bags and much much more. It’s gone quite insane (and, yes, we know it’s not “the real Harlem Shake” but so what?) with way, way, way, way too many people, companies and organizations all doing their own versions. There were reports of 4,000 Harlem Shake videos being uploaded to YouTube every single day, and over 60,000 being on YouTube already. If you want (and I warn you to be careful), you can spend hours going through video after video. The KnowYourMeme link up top has collected some of the most popular ones. I cannot vouch for how many such videos it takes before you are driven insane, so be forewarned.
Over the weekend Baauer’s song hit number one on the charts and it appears to be doing fairly well around the globe. Also, the song has resulted in a sold out show in NY for Baauer and what is likely to be a fair bit of money. That’s because, rather than freak out about others using “his” song (which includes a bunch of samples), Baauer and his label Mad Decent have a deal with INDmusic, which helps indie labels/musicians claim YouTube videos via ContentID and place ads on them. So, combine a top selling song on iTunes, plus allowing the free use of it on YouTube (and monetizing it via ads) and it seems like a tidy profit is being made.
So, for a bit, this was looking like yet another story of how letting people build something on your music was enabling a nice way for one artist to make money, without flipping out about “copyright infringement.” But… then we learned that it wasn’t quite that simple. As highlighted by The Verge, while Mad Decent and Baauer have mostly let people do what they want with the song, they did send a takedown to Soundcloud over Azelia Banks posting her lyrics over the entire Baauer track, and also posting a video:
That quickly turned into a bit of a Twitter fight, with Banks calling out Baauer:
And, from there we get the following exchange:
Of course, it seemed like there absolutely had to be more to this, as it was unlikely that Banks put together that song and video so quickly after the meme took off (especially since the video doesn’t reference the meme at all). Indeed, in an interview with the Daily Beast Baauer (real name: Harry Rodrigues) explains:
“I’m not happy about it,” says Baauer. “She had a version that we were going to release because I’m a big fan of hers. We knew she likes to beef with producers. So she laid something on ‘Harlem Shake’ and it was so/so. Didn’t love it. And that was a little while ago, and since all this video stuff happened, our plans all changed. Because of that, we decided to just release the song on it’s own with no vocal version. So we told her, ‘Please don’t release your version.’ And she said, ‘Well, I’m going to put it online anyway.’ And we said, ‘Please don’t. We’d really like it if you didn’t.’ And she did.”
Still, while lots of folks are defending Baauer here (in part because Banks does have a reputation for getting into arguments with people, and in part because she also went on a homophobic rant), she did have a point when she tweeted this:
Art is supposed to be inspiring, and you should be happy when someone is inspired by your art. In fact, one might argue that Baauer’s statement to Banks that “its not ur song” could potentially come back to bite him as well. In that same Daily Beast interview, he talks about how he created the song:
“I just had the idea of taking a Dutch house squeaky-high synth and putting it over a hip-hop track,” he says. “And then I tried to just make it the most stand-out, flashy track that would get anyone’s attention, so put as many sounds and weird shit in there as I could. The dude in the beginning I got somewhere off the Internet, I don’t even know where, and the lion roar just makes no sense.” He laughs. “There’s the sound of flames in there, too, it’s just really low.”
He doesn’t know where the “dude in the beginning” comes from — though, the folks at Reddit have figured it out (because Reddit knows everything). You have to imagine that wasn’t licensed, though, if he didn’t know where it was from. Who knows about all of the other samples. Personally, I think it’s great that he created something by building on the works of others, and was inspired to create something that has become such a huge hit. But you’d think that someone who made the song by pulling bits and pieces from others wouldn’t be so fast to sling claims of “ownership” back at someone else who built off of his work. Yes, there’s more to it than that and, for the most part, Baauer seems reasonably giddy with all the insanity (and he definitely seemed to do a nice job with his Reddit AMA thanks in particular to this exchange).
It would just be nice if artists who really build on the works of others didn’t jump to claiming ownership when others build on their works as well.