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'Harlem Shake' artists unlikely to win copyright suit, lawyer says

Thursday - 3/14/2013, 4:11am  ET

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Neal Augenstein, wtop.com

WASHINGTON - Two recording artists whose music was sampled in the viral Internet hit "Harlem Shake" would likely not win if they took their cases to court, says the editor-in-chief of Lawyers.com.

"The whole craze is really built upon taking something that is somebody else's copyrighted works, and making a parody of it, creating something new with it," says Larry Bodine, editor of the legal news blog owned by LexisNexis.

The song is credited to D.J. and music producer Baauer, whose real name is Harry Bauer Rodrigues. He sampled snippets from other songs, without getting permission, to create "Harlem Shake." It was released last May on a small record label, originally as a free download, but sales were almost non-existent until the YouTube dance craze two months ago.

"Harlem Shake" begins with a sample of Hector Delgado, also known as Hector "El Father," saying "Con los terroristas," from a 2006 single. The phrase "Do The Harlem Shake" is sampled from a 2001 rap featuring Jayson Musson.

The New York Times reports Delgado and Musson are seeking compensation from Baauer's record company.

If either artist filed suit, claiming copyright violations, Bodine would expect them to lose.

"Typically, if you take a small snippet of something and include it in a work you're doing without destroying the business model of the person who originally recorded it, it's allowed," says Bodine.

"There seems to be a 7-second rule," says Bodine. "You can use 7 seconds and it's going to be considered 'fair use.'"

Bodine says Baauer could make the argument inclusion in his viral hit has provided benefits to Delgado's and Musson's songs.

"In fact, it actually promoted the songs, because they were old songs that probably weren't in circulation a lot," says Bodine.

"Harlem Shake" has been at the top of Billboard's pop chart, and has sold more than 800 digital downloads, not to mention the millions of views on YouTube.

WTOP did its version of the Harlem Shake in February. Check it out below:

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