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). 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 “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) Original Lyric Tweet Brand Jay-Z “If you’re having girl “If you’re having meat Tweeted by Arby’s (“99 Problems”) 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” Missy Elliott (“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’)” The Weeknd (“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.