Comment by greg5green | Hacker News Reader

Comment by greg5green | Hacker News Reader

I'm hoping that Rap Genius will fight this as I'm pretty sure Hofheinz v A&E Television Networks sets the precedent for them. The ruling there was that a documentary on Peter Graves was okay because clips from the actor's works were used "for the transformative purpose of enabling the viewer to understand the actor's modest beginnings in the film business," and that "A&E's biography of Peter Graves does not merely purport to supersede the original movie at issue, but to create a new copyrightable film biography."

Each of the annotated Rap Genius lyrics are used to explain and understand where the original artist is coming from and the point of the site isn't just to let people know the lyrics (which is at best half of the work being used, if you were concerned with the 3rd of the criteria on fair use) but to provide original content that explains everything. I don't think they would have a problem winning, but the will and money to win might be a problem :s

I'm not aware of any more recent case law that might supersede this as it has been a few years since I've been in an IP Law class. Anyone know more?

I see where you're coming from, but that argument opens up a pretty big loophole to use any copyrighted material however you please. There's a big difference (in terms of both effort and value) between a documentary and some user-generated annotations of varying quality.

I'm not clear what you mean by "at best half of the work being used" regarding lyrics, since the full lyrics are reproduced.

Most of the fair use case law I have seen doesn't try to differentiate between good and bad commentary about the work they are building upon because it's really tricky and subjective.

Also, with "at best half of the work being used" I was referring to the fact that it is just lyrics and doesn't include the other elements of the song.

Ah, I see. AFAIK the lyrics and the recording are considered distinct works with separate copyright (and often different owners), so the lyrics count as the "full" work in this case.

I think you might be right about that. I vaguely remember that weird difference being part of the way Hallmark has managed to hold the copyright to Happy Birthday. If I remember correctly, the lyrics were way out of copyright, but the piano arrangement that was written in the 30s or 40s and is now in common use now was copyrightable. Bleh.

@alex_c is right: the recorded iteration of the song is one licence, and the music and lyrics (covered by the publishing licence) is another. If Rap Genius haven't licensed the music and lyrics, then it's no different legally to filesharing mp3s.

The key difference here is that Rap Genius does not use clips, but rather the entire lyrical work. Also it's important to note that often times the lyrics on Rap Genius contain no annotation, so in that case, it is not the same situation of referencing bits of work to create a new work.

It may be all the words, but it is not the entire lyrical work. Intonation and cadence are incredibly important for the genre. Songs like Freeway, Kanye and Mos Def's "2 Words" do not have even close to the same impact without being heard.

Also, the entire work includes the beat. I'm guessing Kanye would argue the beat to "2 Words" was pretty important too.

I think a pretty close comparison would be a complete transcript of a movie or television program.

I know a lot of the songs up there don't have much in the way of annotations, but wouldn't an album review heavy with lyrical analysis be more appropriate in this case?

In the case of a heavily annotated song, I agree that's a decent comparison.

In a weird way, it would seem that every song on RapGenius starts off nearly naked of annotation, and — it would seem — essentially illegal, but may end up heavily annotated and “transformative.”

You can’t start at the end, though.

One is reminded of mathematical induction. Somehow, though, I don’t expect the law to agree that because lyrics-prime is a legal, transformative work, that lesser-annotated copies are therefore also legal. IANAL

A better comparison would be reviewing a song by uploading it to Soundcloud and then using the 'annotate at this timestamp' feature to review it. If you didn't have permission to do so (as far as I know, Soundcloud has no licences in place) then you would be infringing copyright, and a takedown could be fairly issued. This is functionally the same due to the dual-licence nature of music copyrights.

Whatever the intent of Rap Genius, at the end of the day, if they're using material that somebody else has the publishing rights to without asking permission, then they need to pay or take it down. Simple as that.

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