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Legal Analysis

‘Harlem Shake’ Creators Have Weak Claim Against Daily Caller‘s Video Featuring FCC Chairman

The creators of the “Harlem Shake” threatened legal action after The Daily Caller used that song in a video featuring FCC Chairman Ajit Pai, who spearheaded a move to repeal Obama-era rules on what’s called net neutrality. That footage is controversial for, heh, a number of reasons, but let’s focus on the law for the sake of this article. Does the threat carry weight? Here’s how record label Mad Decent phrased it Thursday in their statement on behalf of DJ Harry Bauer Rodrigues aka “Baauer.”

Rodrigues told Billboard in a Thursday report that he opposed the repeal of net neutrality rules.

“The use of my song in this video obviously comes as a surprise to me as it was just brought to my attention,” he said. “I want to be clear that it was used completely without my consent or council. My team and I are currently exploring every single avenue available to get it taken down. I support Net Neutrality like the vast majority of this country and am appalled to be associated with its repeal in anyway.”

Professor Jane C. Ginsburg doesn’t see the threat going anywhere, however. She teaches copyright law over at Columbia Law School, and argued that The Daily Caller video seems to fall under fair use. 1) Very little of the “Harlem Shake” appeared in the video; and 2) it’s used as an apparent parody.

The outlet’s co-founder Neil Patel said in a Friday op-ed that the video wasn’t monetized, but Ginsburg doubts that this defense is even necessary. Citing the 1994 Supreme Court case Campbell v. Acuff-Rose Music, Inc., she said that a work’s commercial purpose doesn’t necessarily defeat claims of fair use.

“More needs to be taken, and economic harm from the taking should be more apparent before it’s worth filing a copyright claim,” she said.

The term “fair use” gets thrown around a lot, especially by laymen on sites like YouTube, so we asked Ginsburg for a concise definition. This turned out to be pretty complicated, but she summarized it like this: It’s when someone uses “reasonable amounts” of another’s work in a way that conveys a different message and does not undermine the economic prospects of the quoted work.

It’s not enough that Baauer dislikes the way his song was used. Parody often makes messages that the original author did not like, Ginsburg said.

“There may be more effective redress by talking back than trying to bring a copyright claim,” she said.

A version of the video remains on The Daily Caller‘s YouTube account as of Friday evening. The page said it was published Wednesday.

[Screengrab via Daily Caller]

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