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 collaborated with the cereal brand Cheerios® and created a special

1 , IF YOU’RE READING THIS IT’S TOO LATE ( 2015). 2 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-as- streaming-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-rap- genius-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-for- vmas_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.”). rendition of his 2001 hit song “.” 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, , , 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) Original Lyric Tweet Brand Jay-Z “If you’re having girl “If you’re having meat Tweeted by Arby’s (“”) problems, I feel bad problems, I feel bad for (@Arby’s) on May for you son. I got 99 you son. I got 99 6, 2014. problems, but a problems but brisket b***h ain’t one.” ain’t one. #RuinARapTrack”

7 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-2013- 9#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 “Under my umbrella “Under my mozzarella, Tweeted by Hot (“Umbrella”) (Ella ella, eh eh eh)” ella, ella, ay ay ay. . . Pockets #CheeseSongs;” (@hotpockets) October 10, 2014 Iggy Azelea “First thing’s first, “First thing’s first I’m Tweeted by IHOP (“Fancy”) I’m the realest. Drop the realest. Cook this, (@IHOP) October this and let the whole and let the whole world 8, 2014 world feel it. And eat it. And I’m still in the I’m still in the dinner business” Murder Bizness” (“Work “Is it worth it, let me “Is it worth it, let me Tweeted by It”) work it. I put my work it. I put my fork Wendy’s thing down, flip it down, flip it and reverse (@Wendys) 23 and reverse it” it” July, 2014 Cam’ron “Hey Ma, what’s up, “Hey ma, what’s up, lets Tweeted by (“Hey Ma”) Let’s slide, all right, slide, all right, all right. IHOP @IHOP all right. And we And we gonna get August 30, 2015 gon’ get it on pancakes tonight” tonight” Drake “I know when that “I know when that Tweeted by (“Hotline Bling”) hotline bling hotline bling, it can only IHOP (@IHOP) That can only mean mean 1 thing! (Pancakes August 15, 2015 one thing” callin’)” (“Can't “I can’t feel my face “I can’t feel my face Tweeted by Feel My Face”) when I’m with you, when I’m with food, but IHOP (@IHOP) but I love it” I love it” August 17, 2015 Drake “You used to call me “You used to call me on Tweeted by (“Hotline Bling”) on my cell phone. my cell phone Whataburger Late night when you Late night when you (@Whataburge) need my love” neeeeeed mmmmyyy October 22, 2015 love ” *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). 12 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, , on THE BLACK (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). 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 non- dispositive 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. 21 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). 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). 28 Id. at 87. 29 Id.(emphasis added). 30 Id. 31 Id. at 90–91. 32 Id. at 92. 33 Id. at 93. 34 Id. 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 re- displayed 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 , 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.