If You’re Tweeting This, It’s Too Late:1
The Unauthorized Use of Lyrics in 140 Characters or Less
By Alfred Ashu, Loyola University New Orleans College of Law
I.
INTRODUCTION
Music sales may be down overall, but music consumption continues to see growth.2 One
apparent by-product of this growth in consumption has been an increased interest and value in
the lyrical element of musical compositions. For instance, RapGenius.com, an interactive
website which allows its users to annotate lyrics from popular songs, amassed approximately $40
million in investments and as many as 35 million unique monthly visitors in 2014.3 During that
same year, many recording artists adopted the trend of creating animated “lyric videos” to
accompany their sound recordings on YouTube. These “lyric videos” have become so popular
that they accounted for over half a billion of YouTube’s views in the year 20144 and MTV has
even carved out a “Best Lyric Video” category for its annual Video Music Awards.5
Even in the world of advertising, many corporations have long recognized a value in
licensing popular musical compositions to help present their product as “cool” to younger
audiences. For decades, corporate brands have been willing to pay celebrity musicians millions
of dollars to endorse a product by licensing their hit song for commercial use or creating a
special “product friendly” rendition of a hit song previously released by the artist.6 For example,
in 2013, the rapper Nelly collaborated with the cereal brand Cheerios® and created a special
1
DRAKE, IF YOU’RE READING THIS IT’S TOO LATE (Cash Money Records 2015).
Zack O’Malley Greenburg, Digital Music Sales Drop for First Time as Streaming Soars, FORBES (Jan. 9, 2014),
http://www.forbes.com/sites/zackomalleygreenburg/2014/01/09/digital-music-sales-drop-for-first-time-asstreaming-soars/.
3
Nicholas Carlson, The Inside Story of how Rap Genius Fired a Cofounder—and Just Raised $40 Million
(annotated!), BUS. INSIDER (Jul. 11, 2014, 3:56 PM), http://www.businessinsider.com/the-inside-story-of-how-rapgenius-fired-a-cofounder--and-just-raised-40-million-annotated-2014-7.
4
Joan E. Solsman, The Surprising Rise of YouTube Lyrics Videos, CNET (Aug. 31, 2014, 4:00 AM)
http://www.cnet.com/news/the-rise-and-rise-of-youtube-lyrics-videos/.
5
Adam Flomenbaum, From Snapchat to ‘Best Lyric Video,’ MTV Continues to Innovate for VMAs, LOSTREMOTE
(Aug. 21, 2014, 10:34 AM), http://lostremote.com/from-snapchat-to-best-lyric-video-mtv-continues-to-innovate-forvmas_b45890.
6
Monica Herrera, Michael Jackson, Pepsi made marketing history, ADWEEK (Jul. 6, 2009, 12:00 AM),
http://www.adweek.com/news/advertising-branding/michael-jackson-pepsi-made-marketing-history-99789 (“In
November 1983, one year after Thriller was released, Jackson (with his brothers) and PepsiCo struck a $5 million
partnership. . . . When Jackson suggested using his song “Billie Jean” as the jingle (with the rewritten chorus,
“You’re the Pepsi generation/Guzzle down and taste the thrill of the day/And feel the Pepsi way”), Pepsi was
sold.”).
2
rendition of his 2001 hit song “Ride Wit Me.” The “product friendly” rendition featured the same
melody and cadence as the original, but with different lyrics promoting the cereal brand and
changing the most memorable lyric from “hey, must be the money” to “hey, must be the
honey.”7 Even independent of any acoustic accompaniment, some companies will pay to license
the right to merely quote the lyrics of a musical composition in association with their products.
In 2015, Sprite® launched its “Obey Your Verse” campaign which prominently displayed
portions of lyrics from musicians, such as The Notorious B.I.G, Drake, Nas and Rakim on the
cans of their beverages.8
Due to the popularity and widespread use of social media, social networking sites like
Facebook, Twitter, and YouTube have become popular platforms for corporate brands to
advertise their products and drive sales.9 However, with the use of social media as an advertising
platform, it appears that some brands are now bypassing the process of obtaining licenses and
consent from musicians or their music publishers to use their works in connection with
promoting their products. Most egregiously, on Twitter, corporate brands include elements of
popular songs within their tweets to promote their products. The lyrical compositions of popular
artists such as Jay Z, Rihanna, Iggy Azalea, Drake, 50 Cent and many others have either been
strongly alluded to or copied almost verbatim in tweets from the accounts of corporate brands.10
This note will illustrate examples of this problem, outline the statutory law governing
copyrighted song lyrics, argue that the use of lyrics on Twitter is infringement and suggest a
potential remedy.
II.
EXAMPLES OF THE PROBLEM
Just how similar are these tweets to copyrighted lyrics? Examine the following tweets
taken from the Twitter accounts of corporate brands and note the striking similarity to the
copyrighted works:
Artist (Song)
Jay-Z
(“99 Problems”)
7
Original Lyric
“If you’re having girl
problems, I feel bad
for you son. I got 99
problems, but a
b***h ain’t one.”
Tweet
“If you’re having meat
problems, I feel bad for
you son. I got 99
problems but brisket
ain’t one.
#RuinARapTrack”
Brand
Tweeted by Arby’s
(@Arby’s) on May
6, 2014.
Aaron Taube, The Cheerios Bee Gets a Hip-Hop Makeover in This Remix of Nelly’s ‘Ride Wit Me’, BUS. INSIDER
(Sept. 3, 2013, 11:54 AM), http://www.businessinsider.com/cheerios-ad-remixes-nellys-ride-wit-me-20139#ixzz3Nc00iJrx.
8
Ben Rooney, Sprite to Entice Rap Fans with Lyrics on Cans, CNN (Jun. 12, 2015, 3:02 PM),
http://money.cnn.com/2015/06/12/news/sprite-rap-lyric-ad-campaign/.
9
Brandon Workman & Emily Adler, THE SOCIAL-COMMERCE REPORT: Social Networks Are Driving More
Online Sales and Influencing Offline Purchases, BUS. INSIDER (Dec. 27, 2014, 7:49 AM),
http://www.businessinsider.com/how-social-networks-drive-sales-2014-9#ixzz3Nc4uRQZb.
10
Edwin Ortiz, My Neck, My back, My Netflix, and My Snacks: When brands Tweet Song Lyrics, COMPLEX (Nov. 3,
2014), http://www.complex.com/music/2014/11/brands-tweet-song-lyrics/.
Rihanna
(“Umbrella”)
“Under my umbrella
(Ella ella, eh eh eh)”
“First thing’s first,
I’m the realest. Drop
this and let the whole
world feel it. And
I’m still in the
Murder Bizness”
Missy Elliott (“Work “Is it worth it, let me
work it. I put my
It”)
thing down, flip it
and reverse it”
“Hey Ma, what’s up,
Cam’ron
Let’s slide, all right,
(“Hey Ma”)
all right. And we
gon’ get it on
tonight”
“I know when that
Drake
hotline bling
(“Hotline Bling”)
That can only mean
one thing”
The Weeknd (“Can't “I can’t feel my face
when I’m with you,
Feel My Face”)
but I love it”
“You used to call me
Drake
on my cell phone.
(“Hotline Bling”)
Late night when you
need my love”
Iggy Azelea
(“Fancy”)
“Under my mozzarella,
ella, ella, ay ay ay. . .
#CheeseSongs;”
“First thing’s first I’m
the realest. Cook this,
and let the whole world
eat it. And I’m still in the
dinner business”
Tweeted by Hot
Pockets
(@hotpockets)
October 10, 2014
Tweeted by IHOP
(@IHOP) October
8, 2014
“Is it worth it, let me
work it. I put my fork
down, flip it and reverse
it”
“Hey ma, what’s up, lets
slide, all right, all right.
And we gonna get
pancakes tonight”
Tweeted by
Wendy’s
(@Wendys) 23
July, 2014
Tweeted by
IHOP @IHOP
August 30, 2015
“I know when that
hotline bling, it can only
mean 1 thing! (Pancakes
callin’)”
“I can’t feel my face
when I’m with food, but
I love it”
“You used to call me on
my cell phone
Late night when you
neeeeeed mmmmyyy
love ”
Tweeted by
IHOP (@IHOP)
August 15, 2015
Tweeted by
IHOP (@IHOP)
August 17, 2015
Tweeted by
Whataburger
(@Whataburge)
October 22, 2015
*Attached with
picture of burger
making a phone
call*
III.
COPYRIGHT PRINCIPLES
A.
Copyright Protection for Lyrics
Under the Copyright Act of 1976, song lyrics are afforded protection in two ways:
musical composition copyrights11 and literary work copyrights.12 Musical compositions consist
of the unfixed elements of a song such as the melody and any accompanying words.13 Literary
works consist of words, numbers or symbols that are arranged in books, sound recordings or
other media.14 Thus, the lyrics of a song are protected by copyright whether they are infringed in
conjunction with acoustic accompaniment or alone.15 Additionally, the Copyright Act of 1976
grants copyright holders the exclusive rights to do or authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or
other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means
of a digital audio transmission.16
Subject to the limitations of sections 107 through 122 of the copyright act, a copyright holder of
a lyrical composition has the exclusive right to reproduce, display or create derivative works of
their lyrics on Twitter. Thus, when brands post lyrics on Twitter, they are exercising the
exclusive rights held by copyright holders without the permission of the copyright holders and
without compensation to the copyright holders of the lyrical compositions.
B.
Quoting Lyrics is Infringement
“They don’t paint pictures; they just trace me”17
Plaintiffs must satisfy two requirements to present a prima facie case of copyright
infringement: (1) they must show ownership of the allegedly infringed material and (2) copying
of constituent elements of the work that are original.18 A determination that copying has occurred
requires proof of actual copying and improper appropriation.19 Actual copying may be proven
through showing that that defendant had access or a reasonable opportunity to view [or listen to]
the plaintiff’s work and that the defendant’s work bears a “probative similarity” to the plaintiff’s
11
17 U.S.C. § 102 (2012).
Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 527 (9th Cir. 2008) (“Song lyrics are copyrightable as a
literary work and, therefore, enjoy separate protection under the Copyright Act.”).
13
17 U.S.C. § 102.
14
17 U.S.C. § 101 (2012).
15
See 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.05[B] (Matthew Bender, Rev. ed.).
16
17 U.S.C. § 106 (2012).
17
JAY Z, What More Can I Say, on THE BLACK ALBUM (Roc-A-Fella Records, Def Jam Records 2003).
18
See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
19
Acuff-Rose Music v. Jostens Inc., 988 F. Supp. 289, 292–93 (S.D.N.Y. 1997).
12
work.20 Once actual copying is established the plaintiff needs to show improper appropriation by
demonstrating that the “substantial similarities” as to the protected elements of the work would
cause an ordinary observer to recognize the alleged copy as having been appropriated from the
copyrighted work.21
When analyzing the current issue, assuming that there is valid ownership of the
copyright, corporate brands would be hard-pressed to dispute that their tweets are actual copies
of protected lyrical compositions. First, the un-styled version of these tweets from corporate
brands are virtually identical to the lyrical compositions of many musicians. Second, access to
the lyrical compositions can be inferred because the lyrics are taken from hit songs that are
played all over the country22 and garner millions of views online. Third, the tweets were
frequently posted during or after the original songs reached their height of popularity. With
respect to improper appropriation, there is evidence that ordinary observers recognize the
appropriation of copyrighted works because they often say so directly on Twitter. Additionally,
the corporate tweets containing the lyrics of artists are typically the ones that receive the most
interaction from Twitter users in the form of “likes” and “retweets.” Thus, the quoting of lyrics
on Twitter by corporate brands establishes a prima facie case of copyright infringement.
However, copyright law recognizes that not all copying is unlawful through the doctrine of Fair
Use, which corporate brands are likely to assert in their defenses.
IV.
Applicability of a Fair Use Defense
Fair use is a mixed question of law and fact.23 To determine whether the otherwise
infringing use of a work in any particular case is a fair use, courts will consider four nondispositive factors:
(1) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.24
Generally, courts have been hesitant to accept a fair use defense when it comes to
displaying lyrics in their entirety,25 but have shown leniency when the lyrics of a musical
composition are quoted for parody purposes.26 In Abilene Music, plaintiffs were the copyright
20
Id. at 293.
Id.
22
See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983) (access inferred where song was
number one on best-seller charts); Fred Fisher, Inc. v. Dillingham, 298 F. 145, 146 (S.D.N.Y. 1924) (composition
“gained an enormous vogue, and was sung or played all over the country”).
23
See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985).
24
17 U.S.C. § 107 (2012).
25
See, e.g., Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 529 (9th Cir. 2008); Zomba Enters. v. Panorama
Records, Inc., 491 F.3d 574 (6th Cir. 2007).
26
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994) (finding parody in favor of fair use where
defendant copied first line of original’s lyrics and then subsequently produced otherwise distinctive lyrics to
juxtapose the message presented in the original song).
21
owners of the musical composition “Wonderful World” and sued the defendant, a rapper, who
quoted the first three lines of “Wonderful World” in his own musical composition entitled “The
Forest.”27 The first three lines of the plaintiff’s song were: “I see trees of green, red roses too. I
see them bloom for me and you. And I think to myself, what a wonderful world.”28 The
defendant’s version made slight alterations to the plaintiff’s work by replacing some words with
slang references to marijuana: “I see buds that are green, red roses too, I see the blunts for me
and you. And I say to myself, what a wonderful world.”29 Both parties agreed that the use of
plaintiff’s work established a prima facie case of copyright infringement and that the only issue
was whether the quotation of the plaintiff’s lyrics constituted a fair use.30
Finding that the first factor weighed in favor of fair use, the court determined that the first
three lines of “Wonderful World” needed to be compared to the defendant’s work in its entirety
to see whether “The Forest” could reasonably be seen as commenting, through ridicule on the
message of “Wonderful World.” The court found that “The Forest” was a transformative parody
because it altered the lyrics of the original and juxtaposed the quotation with a darker, more
realistic view of the world in the rest of the song.31 Deciding that the second factor did not weigh
against fair use, the court determined that although the nature of “Wonderful World” was a
highly creative work afforded protection under copyright, parodies usually must copy the
publicly known and expressive works.32
Concluding that the third factor weighed in favor of fair use, the court reasoned that “The
Forest” took no more than necessary to evoke the message of “Wonderful World” because after
the initial three-line quote, the lyrics of the rest of the composition were distinctive from
“Wonderful World.” Additionally, every line quoted from the original was modified.33 The court
also found that the fourth factor weighed in favor of fair use because consumers interested in
purchasing a sound recording of “Wonderful World” would be unlikely to purchase “The Forest”
for its three-line quotation as a substitute for the original work.34
When analyzing the current issue, it appears that quoting lyrics on Twitter would not be a
fair use for parody purposes. With respect to the first factor, one key difference from Abilene
Music, is the amount of lyrics copied by the infringer relative to the infringing work in its
entirety. Here, the “entirety of the infringer’s work” is comprised of a 140-character “tweet,” so
there is little if any, opportunity to comment or juxtapose the message of the original work.
Additionally, because corporate Twitter accounts are created solely to promote and advertise
products, including lyrics in tweets would be inherently commercial. Thus, corporate tweets
could not be reasonably seen as commenting, through ridicule on the message of the original
lyrical compositions which weighs against a finding of parody/fair use. The second factor would
also weigh against a finding of fair use because the lyrical compositions are highly creative
works and their use is less permissible when not used for parody purposes. The third factor
would likely weigh against fair use as well. It’s hard to determine how much, if any, of the
original lyrics “needed” to be taken because the corporate tweets offer no subsequent
composition that is distinctive. Finally, corporate brands, if allowed to freely quote lyrics, could
27
320 F. Supp. 2d 84 (S.D.N.Y. 2003).
Id. at 87.
29
Id.(emphasis added).
30
Id.
31
Id. at 90–91.
32
Id. at 92.
33
Id. at 93.
34
Id.
28
potentially diminish the monetary value of artists and music publishers licensing this right to
other advertisers like Sprite.35
V.
RESOLVING THE ISSUE
“Am I supposed to change? Are you supposed to change? . . . We need a resolution”36
Recently, Twitter began censoring tweets that contain plagiarized jokes if reported by the
copyright holder.37 This inadequately addresses infringement issues, because the majority of the
harm to the copyright holder would already be done by the time the infringement is discovered.
The nature of Twitter is such that once a tweet is published, it can be quickly “retweeted” or redisplayed thousands of times to different audiences who are not otherwise subscribed to view the
corporation’s tweets.
The first step in resolving the issue of corporate brands tweeting song lyrics should be the
industry taking a collective stance on the issue. Is this something that the industry wants to
embrace, subject to certain limitations? Or is this something that the music industry wants to
discourage? If the answer is the latter, perhaps the best course of action would be threatening and
if necessary, filling suit seeking statutory damages or injunctive relief against corporations
committing copyright infringement en masse.
Alternatively, getting Twitter to adopt stricter standards for corporate brands using its
interface may also be a viable option. In 2010, The Japanese Society for Rights of Authors,
Composers and Publishers (JASRAC) faced heavy criticism when they proposed charging
Twitter users a licensing fee for tweeting song lyrics.38 However, perhaps it was JARAC’s target
and not its aim, that was worthy of criticism. The development of a licensing system on Twitter
for corporate brands would allow corporations to tweet song lyrics permissibly while
compensating the copyright holder.
VI.
CONCLUSION
The increasing importance and profitability of lyrical compositions should present
forewarning to the music industry that special attention should be given to issues that involve the
misappropriation of lyrics, especially for commercial use. Not only do corporate brands who
tweet song lyrics raise copyright issues, but issues of trademark and publicity rights may also be
potentially raised as these tweets could possibly be falsely seen as endorsements by the artist.
35
See 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.05(A)(4) (2004) (“[I]t is a given in
every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical
market for licensing the very use at bar. For example, if the plaintiff complains that snippets of her rock-and-roll
song lyrics have been appropriated by defendant for a quiz in its book of 1960’s trivia, one could define the
supplanted potential market as the possibility of licensing rock song lyrics for quiz books.”).
36
AALIYAH, We Need a Resolution, on AALIYAH (Blackground, Virgin Records 2001).
37
Corinne Segal, Twitter Removes Plagiarized Jokes, Sparking Copyright Debate, PBS (July 28, 2015, 2:33 PM),
http://www.pbs.org/newshour/art/twitter-removes-plagiarized-jokes-sparking-copyright-debate/.
38
Mike Masnick, Japanese Collection Society Wants to Charge You for Tweeting Lyrics, TECHDIRT (Mar. 3, 2010,
12:41 PM), https://www.techdirt.com/articles/20100303/0414578388.shtml.