A discussion of how people have been using the Harlem Shake and Other Songs on YouTube Without Getting Sued

1. Mini Law Lesson:
Can a Brand Create a “Harlem
Shake”/”Gangham Style”/”Call Me
Maybe”
Video Without Permission
Brian Heidelberger
Winston & Strawn
bheidelb@winston.com

2. IMPORTANT DISCLAIMER
• This is not legal advice.
• I am not your attorney.

3. 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

4. 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

5. 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” (It's Not)
• Not Because its “Fair Use” (It’s Probably Not)
• Because of YouTube’s Content ID

6. 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

7. 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

8. 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