Harlem Shake Features Unlicensed Samples That Could Cost Baauer and His Label Dearly…

The news that the YouTube phenomenon Harlem Shake contains samples that the song’s producer and writer, Harry Bauer Rodrigues (recording name Baauer), didn’t get permission to use illustrates the ignorance that still exists regarding copyright — in particular in the dance community.

Apparently former reggaetón artist Hector Delgado didn’t realize the number one hit begins with a sample of him singing/yelling his trademark “con los terroristas” till his manager pointed it out to him a few weeks ago. “It’s almost like they came on my land and built a house,” he told the New York Times.

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Meanwhile Philadelphia rapper Jayson Musson received a phone call from a member of a rap collective he used to belong to, who informed him that he could clearly hear Musson’s voice yelling out “do the Harlem Shake” on the track.

Considering that Harlem Shake has been at the top of the Billboard top 100 chart for three weeks (as well as scoring high on charts around the world), and has so far sold 816,000 downloads in the US alone, it’s not surprising that Delgado and Musson are seeking compensation from Mad Decent Records, who put the record out last year.

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Judging from similar previous examples of unlicensed (commonly called uncleared) sample use, the label may have to pay them a large portion of the revenue it has accumulated from the track – including the ad revenue from YouTube, which Billboard has estimated currently stands at about $83,500.

Steve Lukather – guitarist, singer and songwriter with Toto – has spoken about his surprise when he heard his voice on Roger Sanchez’s hit “Another Chance”.  Sanchez had sampled the first line of the verse from the band’s “I Won’t Hold You Back,” and it was repeated throughout the song.  As the Toto track was both sung and written by Lukather, he said the final settlement gave him 90% of the royalties Sanchez’s recording accumulated – apparently enough to buy him a house.

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Richard Ashcroft of British band The Verve fared even worse than Sanchez, having to relinquish 100% of the publishing (songwriters’) royalties for “Bitter Sweet Symphony” to Keith Richards and Mick Jagger after using a sample from Andrew Loog Oldham’s orchestral version of the Rolling Stones song, “The Last Time.”

Many record and publishing deals require the artist and songwriter to report if they have used a sample in a recording, so that the label and the publisher can make sure it is cleared before the release date. Yet some fail to do so. According to the New York Times, Mad Decent founder Diplo called Delgado last month, saying he was unaware the single contained the vocal line from Delgado’s The Bad Boy album when it was released.

Perhaps Baauer wasn’t too concerned about alerting his label to the sample use, as he could’ve hardly expected the track to blow up the way it has. The sample of the line “con los terroristas” had previously been used on a Skinny Friedman and DJ Apt One remix of “Con Alegria,” which wasn’t a hit, and so far no legal action has been taken against them.

But once a song becomes a hit, not having cleared the samples beforehand is a distinct disadvantage negotiation-wise, as I’m sure both Sanchez and Ashcroft can testify to. Before the release, they can always threaten to take it off the recording if the owner of the copyright makes unreasonable demands. That is not an option later on.

49 Responses

    • Jeff Robinson
      Jeff Robinson

      And thus the Lawrence Lessig remix concept is clearly on the table for open debate. It’s a 10% thing. 10% of the industry thinks this ought to be okay. BIG PROBLEM. 10% of society (Tea Party Whack-o’s) also think Americans should be able to own and use ANY weapon available. What’s with the 10%? Oh yeah, and Lawrence Lessig is a complete boob.

      Reply
  1. Visitor
    Visitor

    “In other words: Google’s motto “it’s easier to ask forgiveness than permission””
    You sure that isn’t the other way around?
    Not even Google can be that wrong…

    Reply
  2. irony
    irony

    “Ignorance that still exists regarding copyright…” may not be the best choice of words. These things aren’t as cut and dry as you may think. If it goes to the courts it could be years before a decision is made. The “con los terroristas” sample is less than 1.5 seconds long and while I agree the artist should have asked for permission, it’s very possible that a court may rule in favor of the defendant on this one. There are simply too many factors involved.

    Ironic that the very issue you’re complaining about applies to Roger Sanchez, the same artist that you’ve co written with in the past. http://www.discogs.com/Roger-Sanchez-Turn-On-The-Music/release/581503

    Reply
      • Visitor
        Visitor

        Ummm…. Not really. 50 Cent and the Game have been involved in a sampling case over “How we do” for 7 years.
        As the user above, Cory Koehler, points out in the link that the supreme court ruled in favor of 2LiveCrew for unlicensed samples of Roy Orbison.
        Moses Pelham, a german rap producer, used a 2 second sample of a Kraftwerk song. Originally, the court sided with Kraftwerk, but the ruling was overturned (in Germany of all places!!! Copyright is CRAZY there).
        There are hundreds of examples out there…

        Reply
        • Visitor
          Visitor

          “Ummm…. Not really.”
          Yes — really.
          Here’s the rule: Clear your stuff, or pay later. Don’t rely on parody, fair use, good luck or magic. Once in a blue moon, it may save your a$$. Most of the times, it won’t.
          Besides, it’s so much more fun to create your own stuff.

          Reply
    • Champion
      Champion

      The sample is used repeatedly throughout the song, and the “Ta” at the end of “terrorista” is one of the principal ingredients in the song’s beat.

      Baauer is an idiot, in other words. Any female in his life (or a friend’s friend or whatever) could have recorded a sample that would have worked just as well. It’s not even a musical sample, it’s not impressive at all, but it is infringing.

      Reply
    • Helienne
      Helienne

      I wouldn’t call it ironic. I’m surprised you got the impression I’m complaining, when it’s an observation and advice to not use samples without approval. My publishing contract required me to inform my publisher if I used a sample, and I truly believe in giving credit where credit is due.

      Reply
    • Entertainment Lawyer
      Entertainment Lawyer

      Uses of the master sample are as black and white as you can get. While samples of the underlying composition can be litigated based on the substantiality of the work used and of the commercial impact on the original, liability for infringement is pretty much automatic when the master is also used.

      Reply
      • Copyright Lawyer
        Copyright Lawyer

        Is there no de minimis rule for sound recording?
        This has been litigated before. see Bridgeport Music v. Dimension
        However, it doesn’t mean that every circuit will agree that the de minimis rule for sound recordings should be eliminated simply for “considerations of practicality.”

        Reply
        • rikki
          rikki

          Hi laywer…
          Why are people scared to ask if this is a racial issue? I never see black people getting sued for theft of msuic….15,000 RIAA suits how many were in minority areas?

          Reply
          • BobbyGiggz
            BobbyGiggz

            Are you serious?!!

            Money doesn’t recognise any other color, but Green.

            Beleev me, there are many dormant cases just waitng for a sampled SR to go Viral. They will creep out the woodworks like a pestilence.
            Litigation is expensive. If there’s no pot-of-gold at the end of the Rainbow, f*ck the trip, and the Leprechaun.

    • Champion
      Champion

      Just to preempt some of the inept replies I am likely to receive, whether or not there is any truth to the Google statement is entirely beside the point.
      Imagine if a newspaper article about industrial pollution in New Jersey ended with a line out of nowhere criticizing the destruction of Brazillian rainforests. That would be a pretty dumb nonsequitir, even if they are both environmental disasters.

      Reply
    • Visitor
      Visitor

      Mm, don’t know. It’s a bit like ‘Carthage must be destroyed’, isn’t it? And that worked out pretty well. Eventually…

      Reply
      • Unnecessary End
        Unnecessary End

        An interesting article derailed somewhat by the end quote. What a foolish way to end it. I refuse to link this out to my students and will share it from another source. Lame.

        Reply
  3. TwoColorShoe
    TwoColorShoe

    Ahhhh, this is disappointing. I had left an email for Mad Decent over another release that had sampled a different song regarding being smart in how the action of sampling was held but had no response. I really like this label, but am sad to see it come across these kinds of issues.

    Reply
  4. Rita
    Rita

    Helienne,
    i would also like to know more about your professional relationship with Roger Sanchez… Did your songs get sampled as well? Did you do anything about it?? What was the outcome?

    Reply
    • Helienne
      Helienne

      Hi Rita, apologies for the late reply. I’d be happy to! I co-wrote four songs with Roger for his album Come With Me, which he did after Another Chance, including the single Turn On the Music. As far as I know none of my music has been sampled by other artists, so can’t say I have any personal experience in that area.

      Reply
    • Helienne
      Helienne

      Actually, Rita, it just dawned on me that I have had my music sampled before. They contacted me said they would give me a few percent of the publishing (can’t remember how much now) if they could use it, sending me a copy of their track to show how much they’d used. Seemed reasonable to me, so I signed off on it. Easy peasy.

      Reply
  5. R.P.
    R.P.

    I think they meant: it’s easier to deal with it later than do the research and attempt to get permission by technically cold calling type outreach. but sheeeeesh what a f*ck up on Mad Decent’s part.. no bueno.

    Reply
  6. Harlem Shaker
    Harlem Shaker

    The “Do the Harlem Shake” sample is an a tiny, non-central piece of the original track – wouldn’t that fall under fair use? “Con los terroristas” might be different story, though, if that is a trademark line of the original artist – esp because its such a big part of Baauer’s track. Am I off here?

    Reply
    • Visitor
      Visitor

      Technically, fair use is not supposed to apply to any commercial recordings that are sold for a profit. The original intent of fair use was only to protect the following:
      “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”

      In the case of any samples used in recordings that “make money” for the artist, the original master owner and copyright owner(s) are legally entitled to share in the revenues. It doesn’t matter how short the sample is either…that is an “urban legend” of sorts.

      Reply
      • Visitor
        Visitor

        “It doesn’t matter how short the sample is either”
        Well, it’s one of the factors that determine the size of the compensation.

        Reply
      • Visitor
        Visitor

        Did you miss the part where it says “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” is a factor in if something is fair use or not? Are you braindead or just blind?

        Reply
        • Visitor
          Visitor

          Well, I’m not the ‘visitor’ you responded to, but it’s very important that you understand the difference between the copyrighted song (melody/lyrics) and the copyrighted sound recording (samples).
          When we’re talking about the melody, amount is indeed extremely important. While there are no exact rules, you can usually get away with 5-6-7 consecutive notes, especially if these are quarter notes or less, e.g. the stolen sequence is shorter than two bars.
          Samples are entirely different creatures. In many cases, you can get with one-shots — especially single drum hits — but that’s it.

          Reply
        • Visitor
          Visitor

          “And fair use applies to commerical works as well.”
          No. The only exception is parody — and don’t expect that to work outside the US.
          Like you say, it ain’t rocket science and the golden rule is simple:
          Clear your samples, or pay later.

          Reply
        • BobbyGiggz
          BobbyGiggz

          Everybody knows Wierd AL’s situation fell under Parody. get real and check your facts.
          You should be looking at Gregg Gillis ‘GirlTalk’.
          Now that is a real Harlem Shaker!!

          Reply
    • Visitor
      Visitor

      “The “Do the Harlem Shake” sample is an a tiny, non-central piece of the original track – wouldn’t that fall under fair use?”
      No, fair use primarily applies to non-commercial situations, such as education or reviews, and this is clean cut commercial case.
      The only possible defense would be to prove that the right holders knew — but ignored — that the sample were used previously on the ‘Con Alegria’ remix.

      Reply
  7. Visitor
    Visitor

    this is ridiculous. they’re words for crying out loud. these artists didn’t copyright the phrases that they are claiming ownership of, and there’s no way of definatively proving the samples are actually drawn right from the original songs. if they were, in fact, taken from the original works, the samples are still modified and manipulated making them unique. this is like a musician claiming the right to a particular chord progression or a beat structure. and $83K…seriously? how much of that money do you think actually went to bauer? and how much money do these other hacks intend on getting their hands on. it wont even be enough to pay for their legal fees. sad day for the music community.

    Reply
    • Copyright Lawyer
      Copyright Lawyer

      So many misconceptions about copyright so little time.
      Some terms you might want to look up and a couple of lawsuits to boot.
      copyright exists the moment a work is created
      underlying work
      sound recording
      de minimis
      transformative work
      statutory damages
      Bridgeport Music v. Dimension Films
      Newton v. Diamond
      elements of proving copyright infringement – access, copying etc…..
      After you have read up on copyright then come back and make an informed comment.
      Bonus – you will then know more about copyright than the majority of people.

      Reply
  8. Alan Palanker
    Alan Palanker

    Face it, If you can’t play it, or write it, or record (produce it), you probably stole(sampled) it ! As Buddy Rich said ” sit down, shut up and play some f….in music!. Creativity has been vastly reduced in our present times as far as music goes. Writing code is another matter.

    Reply
  9. Ben Gomori
    Ben Gomori

    “In other words: Google’s motto “it’s easier to ask forgiveness than permission”, is not one DJ/producers should follow.”
    Load of bollocks. Dance music as we know it wouldn’t exist if this were the case. Well done to everyone who agrees with this for not understanding the history of electronic music up to this point.

    Reply
  10. Stuart Crichton
    Stuart Crichton

    Stupidly, back in the early 90’s I had a similar situation. We had a top 10 hit using a Lionel Richie sample with my act Umboza. We cleared that for £10k and 50% publishing. Only thing was, we forgot to clear, or didn’t even think we need to clear the vocal sample that started the song off. It was from a Spanish language tape. Cue the chap coming out the woodwork when it hit. He ended up with 20% and £15k. One of life’s lesson learnt there and then

    Reply
  11. durp
    durp

    I wonder if theres a clause in the record deal that indemnifies the record label in the case of a copyright dispute
    Rags to riches to rags lulz

    Reply
  12. ozgood
    ozgood

    Bauuer is laughing his way to the bank. He is making tons of money on tour now that he never would have without the song. It doesn’t matter that he will have to share his earnings off the single. He created a hit and now he has a name. Look at the big picture ya’ll

    Reply

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