The Harlem Shake Gets Busted

Harlem Shake - Kansas Basketball Style

Use a sample, go to jail. Well, not exactly, but unless you get permission, you're going to be hearing from an attorney. The latest episode of uncleared samples comes with the recent viral hit "Harlem Shake" by Baauer. It seems that the DJ used pieces of Hector El Father's 2006 single "Maldades" and Plastic Little's "Miller Time" without getting permission first, and now they want some money.

The fact of the matter is that most major labels have business affairs departments that would've made sure that all samples were cleared before the song was released, but "Harlem Shake" was on the tiny Mad Decent Records, who had no such resources. It was only after the video for the video went viral with it's crazy dance (if you can call it that) that the song became a hit.

"Harlem Shake" has spent the last 3 weeks at the top of the Billboard Hot 100 chart and had over 800,000 downloads, and the video has over 27 million views. All of that has been very recent though, as the song was actually released last May and until the video broke, was destined to be one of the many songs that with little traction in the marketplace.

To a small record label who considers a couple of thousand sales a hit, clearing samples is hardly a priority. Chances are that the sample owner will never hear it, and if they do, there's hardly enough money involved to make a legal case of it. That all changes when the song is a hit however.

It will be interesting to see just how much El Father and Plastic Little settle for. I've known people in the past who know that they're being infringed upon and purposely wait until the song is a big hit before they announce the situation to the world. You get a bigger payday that way.

Regardless, it's just another lesson that if you don't get the proper clearances, it will cost you in the end.

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What Can Happen If You Don't Clear Your Samples

Copyright can be a double-edged sword. On the one hand it protects artists and makes sure they get paid for their work, and on another it can stifle creativity and suck a revenue stream dry. The latter is what happened to The Verve with their still much loved 1998 hit "Bittersweet Symphony."

It's hard to believe that Rolling Stone's Mick Jagger and Keith Richards get all the publishing income from that song, but that's what's happened. The reason why is that "Bittersweet Symphony" is closely based on the Stone's 1965 hit "The Last Time." Hard to believe if you know the song, I know, because I didn't hear it at first either.

"Bittersweet Symphony" is actually based on the Andrew Loog Oldham Orchestra's (the Stone's original producer) version of the "The Last Time" (listen below) rather than the Stone's version. The Verve acknowledged this and actually got a license from Jagger/Richards to use a sample of the song, so they thought they were in the clear.

But when Bittersweet Symphony came out, the Stone's representatives were immediately on the phone saying, "We want 100 percent of the song, or take it out of the stores!" The reason was that The Verve didn't just use a sample, they lifted virtually the entire song and just put new lyrics to it.

This nastiness probably could've been avoided with some shrewd negotiation up front, but that era of the Stones catalog is represented by the notorious Allen Klein, who was one of the hardest and most hated negotiators in the business while he was alive. It seems sure that the exact use of the song wasn't revealed until after the song became a hit, and The Verve thought they were in the clear.

What can you learn from this? If you're going to use a sample, remember that there are 2 licenses that you must get - one from the publisher and another from the record label for the recording. And remember that the length of the sample may become an issue so specify how much of the song you're using in advance.

Below are 2 videos. One of "Bittersweet Symphony," and the second from the version of the song that the music was lifted. You'll be amazed how similar they are.

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Follow me on Twitter for daily news and updates on production and the music business.

Check out my Big Picture blog for discussion on common music, engineering and production tips and tricks.