Posted By: Ross Arkin
Ever since the Sugar Hill Gang proclaimed “I said a hip, hop, the hippie – the hippie to the hip hip-hop, and you don’t stop the rocking to the bang-bang, boogie say up jump the boogie to the rhythm of the boogie the beat.”, hip-hop fans have collectively often said: “What?”
Enter the function of the lyric site. Not just hip-hop fans but fans of music of every genre have often found themselves utterly confounded when it comes to certain lyrics. Before the advent of the internet, the most common way for people to settle lyric disputes was to simply check the hardcopy booklet that came with a retail version of an album, if the album did in fact come with such an insert. Before these inserts existed the only way to obtain a copy of the lyrics to a song was to purchase a song book or sheet music. Now, if anyone were to tell you that Jimmy Hendrix was singing about kissing a guy, you can pull up any number of websites dedicated to displaying the lyrics of songs and clarify what has been misheard. By some reports, five million people google the term “lyrics” every day. (Alex Pham, NMPA Targets Unlicensed Lyric Sites). However, it turns out that the unauthorized (read: unlicensed) display of copyrighted lyrics may be an infringing activity.
The latest battleground where the copyright war is being waged is a website called Rap Genius. The National Music Publishers Associations (NMPA) has recently sent take down notices to many lyric sites claiming that the sites have not obtained licenses to the lyrics of those songs. The largest profile website of all those who received take down notices was Rap Genius.
Rap Genius is a site started in October 2009 by a group of college friends from Yale University. The site offers a search function for users to find lyrics by song name or artist. The site is unique in that it doesn’t just display the lyrics of songs, but also allows users to add their own explanations and interpretations of the meanings of the lyrics. Rap Genius is not just a site maintained by fans for entertainment purposes, but a commercial venture with multimillion dollar investors and profits. This is one reason that the NMPA sets it apart from the thousands of other lyric sites on the web. In a statement from the NMPA, an executive was quotes as saying “This is not a campaign against personal blogs, fan sites, or the many websites that provide lyrics legally.” (Pham, Alex NMPA Targets Unlicensed Lyric Sites). The commercial aspect of Rap Genius is what has made it a target.
This is not the first time a lyric website has been sued over licensing issues and copyright claims. Back in 2010 a music publishing company known as Peermusic brought suit against the owner of lyricsdownload.com. (Gardener, Eriq LiveUniverse Lyrics Lawsuit). Peermusic, III, Ltd. v. LiveUniverse, Inc. led to the demise of the lyric site through a permanent injunction on the website owner to refrain from posting lyrics he did not own the license to.
The best defense that lyric websites have would be under the Fair Use Doctrine. This consists of four prongs:
- Purpose and character of the work
- Nature of the copyrighted work
- Amount and substantiality
- Effect of the use upon the potential market – record labels want to publish their own lyrics?
- The commercial nature of these sites is clear. These lyric sites are gaining a lot of revenue from ads that appear on the side of the page. If the website is not commercial in nature, as the NMPA representative has said, then likely they would not be involved in litigation. So if the infringing website was commercial in nature, this factor would weigh against the lyric website. However, the simple fact that a lyric website may be generating traffic and turning a profit through ad revenue does not always trump the fact that these lyric sites may benefit society and benefit the arts by allowing people to further study music.
- This certainly weighs in favor of the copyright holders because the nature of the copyrighted work is certainly wholly creative. Song lyrics do not serve purposes like facts or news stories and therefore a court would likely not find any need for the fair use protection of copied song lyrics.
- The amount of the copyrighted work is clear as well. The lyric websites transcribe and display the entirety of the lyrics of the published songs. Though this factor is not dispositive, it weighs slightly against the lyric websites.
- The effect upon the market for the copyright holders is a contentious issue when it comes to lyrics websites. Lyric sites can argue that simply displaying lyrics does not and cannot in any way substitute for someone actually listening to a song containing the lyrics displayed. Therefore there would be no negative effect on the market value for the copyrighted work. However, copyright holders have the right not just to the song as a whole but the lyrics themselves. This means that if there were a market just for display of lyrics, unlicensed display of lyrics may affect the value of that market.
In regards to factor I, Rap Genius could make several arguments in its own defense. First, Rap Genius can differentiate itself from other lyric sites because Rap Genius gives its users the ability to comment and add interpretation to lyrics directly on the site. This brings with it an aspect of critique and discussion that adds to the value of the lyrics displayed. Such critique of the protected work may be a first amendment defense to infringement claims. Courts may view this in favor of Rap Genius and recognize that there may be some transformative value added to the lyrics.
In regards to factor II, as the copyrighted works here that are displayed on the Rap Genius site are wholly creative, it is unlikely that this factor would be helpful to prove a fair use defense.
In regards to factor III, here, as with other lyrics websites, each entry on Rap Genius includes the entirety of a copyrighted work as it is the full text of the copyrighted lyrics.
In regards to factor IV, Rap Genius may have its strongest argument in that they have not affected the market value for these songs. Generally, content creators have not previously attempted to nor even made the argument that they want to enter the business of publishing lyrics online themselves though it is possible that they could. Making this argument and showing a loss of marketability due to these unlicensed publishings of lyrics may make all the difference to a judge. Moreover the copyright holders can certainly show that they are losing potential revenue due to the lyric sites not having to pay the copyright holders for licensing rights. These facts may lead this factor to weigh in favor of the copyright holders.
It remains to be seen if Rap Genius can escape the same fate of other lyric sites who have been forced out of business. Though if Rap Genius is unable to successfully use a fair use defense argument, because they are so successful, they may want to simply seek the ability to negotiate licensing deals with the music labels or artists from which they publish song lyrics so that they can continue their business and avoid litigation. This way, Rap Genius continues pulling in revenue, copyright holders are compensated, and Hip Hop fans can continue searching for and discussing lyrics. This way, everyone wins.