Can a Brand Create a Harlem Shake Video Without Permission - Ad Age Mini Law Lesson
Mini Law Lesson: Can a Brand Create a “HarlemShake”/”Gangham Style”/”Call Me Maybe” Video Without Permission Brian Heidelberger Winston & Strawn firstname.lastname@example.org
IMPORTANT DISCLAIMER• This is not legal advice.• I am not your attorney.
What is the “Harlem Shake”• Song by Bauuer (a/k/a Harry Rodriguez)• Dance goes back to 1981• Over 40,000 Videos Have Been Uploaded
License You Need to Play Music in a Video• “Synchronization License” – from the owner of the sheet music (publisher)• “Master Recording License” – From the owner of the sound recording (record label)• Rights are often (not always) owned by two separate companies• Also Public Performance License Needed – YouTube Has – You Would Need to Get For Your Own Website
Is it “Public Domain” or “Fair Use”To Make One Without Permission• Most Video Are Probably Using the Song Without a License• Most Aren’t Brand Videos• Why is Nobody Getting Sued? (Yet)• Not Because its “Public Domain” (Its Not)• Not Because its “Fair Use” (It’s Probably Not)• Because of YouTube’s Content ID
YouTube’s Content ID• Song Owners Can List their Songs With Content ID• Videos Are Flagged if Includes a Song Registered With Content ID• Song Owner Can Block, Tracking, or Add Ads to the Video• Administer of Harlem Shake: – “we’ve from the beginning, been very much a proponent of allowing everybody to do whatever they want with our stuff, as long as we’re able to monetize it”• Gangham Style = $2 million in YouTube revenue
Inherent Risks/Business Considerations?• YouTube Is the Only Social Media Site With Content ID – Posting the Video On Your Facebook Page, Website or Other Forum Doesn’t Make The Song Owner $$• Just Because a Song Owner Uses Content ID, Doesn’t Necessarily Immunize You From Copyright Infringement – Brand’s Use For Marketing Likely Much Higher Risk of Claim Than Other Uses
More Videos? Search Adage.com; or Go to youtube.com/BrianHeidelberger– Brand’s Use of Vine, Pinterest and Facebook– How to Respond to a Cease and Desist– Use of Celebrities in Social Media– Who’s Been Sued in Digital Media and Why
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