On Ajit Pai, Fair Use, and “Harlem Shake”December 20, 2017
The policy sphere has its knickers in a knot over Federal Communications Commission Chairman Ajit Pai’s meme-filled video collaboration with The Daily Caller. In the video, Chairman Pai defends his decision to repeal net neutrality protections by enumerating the things folks can still do on the internet.
Given the impressive unpopularity of Chairman Pai’s policy, it’s perhaps no surprise that those folks whose work found its way into the video (either directly or by reference) were displeased. In response to Pai wearing a Jedi robe and wielding a lightsaber, Mark Hamill (aka Luke Skywalker himself) started a Twitter feud that blew up to include not only Pai, but Ted Cruz and Donald Trump Jr. And when Brooklyn-based DJ Baauer noticed that Pai closed out the video by doing the Harlem Shake — a 2013-era video dance meme that features Baauer’s track of the same name — Baauer decided to express his displeasure by sending YouTube a DMCA takedown notice.
This raises a whole bunch of issues, so for the sake of clarity, let’s break them down in order.
Pai’s use of “Harlem Shake” is not a parody (in the legal sense).
“Parody” is one of those words that gets bandied around a lot in copyright circles. When non-lawyers say “parody,” they mean “something that makes fun of something else.” The Daily Caller, for example, complained that Pai’s video was an “obvious parody.”
But when lawyers talk about parody, they’re talking about a very specific flavor of fair use. Legally, parody exists when you use a copyrighted work to make fun of that same work.
Pai, by contrast, wasn’t making fun of Baauer’s track; he was just reenacting a meme that used it as a soundtrack. (It could be argued that Pai’s entire video was making fun of the ways people currently use the internet, but, as I’ve said elsewhere, I don’t think that’s the level of meta Pai was going for.) So while the video’s erratic dance party might meet the colloquial definition of parody, it falls way short of the legal definition.
His usage of various copyrighted materials should be — and probably is — fair use.
Now, this kind of mash-up usage of copyrighted material is something that internet denizens engage in all the time. When you ask most non-lawyers whether it runs afoul of copyright law, they’ll all agree that it’s fair game.
But fair use isn’t quite that straightforward. For one thing, the only person who can definitively say something is or isn’t fair use is a judge, and judges are wildly inconsistent in their evaluations. This is because fair use decisions are guided by a four-factor “balancing” test, meaning that a judge can give more or less weight to any given factor depending on how they’re feeling that day. Because of this, the success or failure of most fair use arguments turns on which side can do the more creative lawyering (which, in turn, depends on who has more money to hire a more aggressive counsel). With some very important exceptions — such as parody, which we discussed above — fair use in practice often amounts to nothing more than a “sniff test” that lets a judge justify a desired outcome after the fact.
With all that said, let’s examine, on paper — and assuming a judge who assigns equal weight to all four factors — what Pai’s case here looks like.
The first factor is the “purpose and character of the use,” or, in layman’s terms, “what are you actually doing with the work?” Uses that are non-commercial or transformative (using the work as “raw material, transformed in the creation of new information, new aesthetics, new insights and understandings”) usually win this factor. Criticism, commentary, and our old friend parody all sweep the first factor, and do so with enough force that it’s usually enough to win a fair use argument outright. Pai’s video wasn’t really parody or criticism — though it’s arguably commentary (albeit on a policy issue) — so his fair use case isn’t out of the weeds yet, and we have to trudge on through the remaining factors.
Pai’s video was both non-commercial and, like most memes, used “Harlem Shake” in a new enough context to be at least mildly transformative. Score: Pai: 1. Infringement: 0.
The second factor is the nature of the copyrighted work, including the degree of creativity involved, and how readily available it is. Less expressive works, such as nonfiction, tend to have “thinner” protection under this factor, while creative works have more. In this case, the song is commercially available and highly expressive.
So, on the second factor, things start to even out. Score: Pai: 1. Infringement: 1.
The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and this is where a lot of memeing starts to get fuzzy. Generally, judges ask if you only used as much as you needed to achieve your purpose, or if you used more than was strictly necessary. Pai only used a few seconds of Baauer’s track, which swings this factor in his favor.
But judges can also ask whether you could have achieved the same purpose without using the work at all, or using another work. These are borderline existential questions when it comes to memes: did I have to use a copyrighted image of a screaming porg in my Twitter avatar to convey my distaste for the current political climate, or could I have used something else to equal effect? Couldn’t I just have been happy being the millionth “This is Fine” dog avatar? What’s so special about that porg? (Answer: I just really like porgs.) By the same token, Pai could have used any number of memes to get his point across, but he chose to use “Harlem Shake.” The fact that these other memes would also have copyright concerns attached to them doesn’t always matter to judges.
It’s entirely possible that a meme- and copyright-unsavvy judge would look at this as an arbitrary choice on Pai’s part and simply say he should have picked another song. But, barring that kind of curmudgeonly meme-bashing, the fact that the song only appears for a few seconds weighs pretty heavily in Pai’s favor, bumping the score to Pai: 2. Infringement: 1.
The fourth factor is the effect upon the potential market for, or value of, the copyrighted work. This is actually the most intuitive factor for fair use, and the first thing most non-lawyers think of. Generally, judges try to figure out whether the new use could potentially displace the original use in the market. An unauthorized Harry Potter sequel, printed and sold in bookstores, could theoretically push out the authorized sequel by swallowing up a part of the market, and thus loses under this factor (and a whole host of other provisions of copyright law).
It’s pretty clear in this instance that nobody’s going to think to themselves, “Man, I’d love to listen to ‘Harlem Shake,’ but instead of paying for it, I’m gonna just go watch Ajit Pai thrash around next to a conspiracy theorist.” Under that reasoning, Pai wins here.
However, the courts also consider the effect upon the value of the copyrighted work. There is a tenuous (but extant) argument that Pai’s association with the song actually devalues the song. This is a really dangerous argument; Pepe the Frog creator Matt Furie presents the sympathetic version of this problem, but it’s not hard to flip the scenario on its head and imagine a musician refusing to have their work associated with, for example, minorities. Courts have largely blocked this line of argument, but it’s mostly come up in the context of creators trying to prevent criticism of their work, not just association.
At the end of the day, this is one that’s likely to swing in Pai’s favor. Final score: Pai: 3. Infringement: 1.
In short, Pai comes out with a strong showing, but neither side meets the kind of slam dunk criteria, such as parody or criticism, that judges frequently rely on as deciding factors. And because judges have the discretion to weigh each factor however they like, it’s possible (though not likely) that a judge comes in and decides each factor in the contrarian ways we’ve mentioned, gives added weight to the second factor, and throws the fair use defense out the window. In the end, the outcome — as with many fair use cases, unfortunately — would depend first and foremost on how the judge felt about memes, “Harlem Shake,” and (in all likelihood) net neutrality.
Copyright law does not deal well with memes and derivative creativity, and the fact that we’re even having this debate means that something needs to change.
There are a whole host of rationales underpinning copyright law, but one of the most often-cited is the idea that an artist should (within limits) be able to control the dissemination of their work. Where and how you draw the line between authorial control and user freedom is the beating heart of almost every copyright debate, but almost everyone agrees that authors should be able to exercise some control over how their work travels through the world.
Memes, on the other hand, turn that logic on its head. A successful meme is one that spreads fast and unfettered by central oversight. In economic terms, successful memes have vanishing-to-zero transaction costs associated with their spread. For something to go viral, it propagates under its own power with little to no central control.
It’s not surprising, then, that we’ve seen these two visions of creativity collide. In 2015, Getty Images, which owns the central image in the “Socially Awkward Penguin” meme, secured an undisclosed number of settlements with blogs that used variations on the image. In 2010, videos in which Adolf Hitler seemingly ranted about mundane annoyances began disappearing from YouTube after the movie studio behind the source clip (the German movie “Downfall”) claimed the meme infringed their copyright.
Short of omnipresent, internet-wide Digital Rights Management (an admitted dream of some), the wild, derivative creativity of the internet isn’t going away. And short of the major content lobbies suddenly getting raptured en masse (an admitted dream of others) and creators being OK with losing entitlements they’ve enjoyed up until now, copyright isn’t going away.
What we need — and what we don’t currently have — is a system that can accommodate both models of creativity. Artists should be able to exercise reasonable control over the distribution of their work (up to a point, which, again, is the core of this debate). Internet creators of all sizes and inclinations should be able to meme without fear of getting taken down or sued. Fair use needs to be strengthened, and clarified. The end.
The DMCA should never be used as a tool to silence political disagreement, but the Daily Caller’s version of events is fake news.
…Ok, not quite the end.
First, using an anti-piracy provision of copyright law to chill political speech with which you disagree is completely and utterly inappropriate. It seems ridiculous that we even have to say that, but in 2017, nothing is surprising anymore. To repeat: copyright is a hugely powerful (and, at times, dangerous) tool that allows individuals to control the speech of other individuals. The DMCA is intended to remove infringing content. It is categorically not intended to remove political speech with a solid fair use underpinning, just because you disagree with the message. (And before you ask: yes, hate speech is a thing, and there are huge structural problems in how platforms deal with it, and we need more robust tools to address it online. The DMCA is not, and should never be, that tool.)
Now that we have that out of the way, let’s clear up some misinformation. In their statement, TheDC (the Daily Caller’s publisher) completely misrepresented how the DMCA works in order to make themselves look like a David-and-Goliath hero, weaving a tale about how they had to use “the full force of our news site,” plus “the sizable contacts and resources of TheDC.” This is so far from the truth that it’s not even in the same ZIP Code.
First, Google wasn’t victimizing anyone. Under the DMCA, YouTube was legally required to take Pai’s video down the moment they got a copyright claim. They do this regularly, day in and day out. There are ongoing debates about whether platforms are fast enough in responding to this, but the law is clear; Baauer says “jump,” platforms say “how high?”
Second, the Daily Caller didn’t have to bring some huge legal army to bear to get the video back up on YouTube. They had to check a box and click a button. I, as a half-asleep college student, once took five whole minutes away from rewatching my Simpsons season 10 DVDs, wiped the Cheeto dust off my fingers, and did exactly that. If 21-year-old me could be motivated enough expend that bare minimum amount of labor on a Friday afternoon, then I guarantee nobody at The Daily Caller broke a sweat checking that box.
So, Daily Caller, if you’re interested in DMCA reform: give us a call.
About Meredith Filak Rose
As Policy Counsel, Meredith Rose focuses on copyright, DMCA, intellectual property reform, and governance issues, as well as telecommunications regulatory matters. Prior to working at Public Knowledge, Meredith worked on consumer policy issues at the Federal Communications Commission, the Trans-Atlantic Consumer Dialogue, and Knowledge Ecology International. Meredith received her J.D. and A.B. from the University of Chicago. When not in the office, she’s an avid video gamer and desert hiker.