#PopCultureClass: ShETHER Lesson #2: Know What to Protect on Social Media and How to Protect It
Though this past Saturday is starting to seem somewhat far away in light of #Oscargate and everything else, there are still some important lessons to learn from ShETHER before moving on. As we've been discussing, Remy Ma's ShETHER came and dropped major keys about life, business, and law.
Lesson #2, Know What to Protect on Social Media and How to Protect It, revolves around copyright law, creativity, and the unprotected sharing artists regularly do on social media. Many creators on social media are creating and posting their work. But, many artists are simultaneously uniformed about the law and what they actually own. Some things are protectable under the law, and this article is about how you can learn from Remy and Nicki's experience with tweet. Let's start from the beginning with how we got here.
Remy opens ShETHER by putting Nicki Minaj on blast for taking a line from one of Remy's old tweets and using it in her own work. Here's the line from ShETHER:
Let’s be honest, you stole that line ’bout bitches being your sons/How you take my ’09 jail tweet and run?
Here's the 2009 tweet from Remy at the heart of this dispute, including the phrase "yall bitches my suns:"
It seems like Remy was posting rap verses on Twitter in 2009 to stay fresh and share her lyricism with her followers (this was after she got locked up - don't quite know how she was tweeting then, but c'est la vie). Obviously you can't post an entire song in 140 characters, so perhaps this is part of a larger work that was being sharing in separate posts. I believe these tweets have been deleted so we can't be sure.
Nicki has become quite well-known for using the phrase "all these bitches is my sons." On its face, Nicki allegedly copying a few words from one twitter post doesn't seem like a huge deal, right? But if we delve deeper into all of this, perhaps we can understand why this is, indeed, a big deal for Remy.
Nicki has used "all these bitches is my sons" in multiple instances. It actually is one of the most popular lines of her career.
Urban dictionary says so (Understanding Urban Dictionary isn't quite the Wall Street Journal, I've got other receipts. Just keep reading):
Vibe Magazine says so too - dedicating an article to Nicki's lyrical history related to "motherhood:"
The Genius website also has an entire article about Nicki creating the phrase:
[M]uch of Nicki’s rap has focused on boasting her success and many achievements, which include (but are definitely not limited to) carving out a space for a female MC in the male-dominated game of hip-hop. With her success, Nicki Minaj has shone the spotlight not only on herself, but on the female MC community at large; since Minaj is seen as a valid contributor to today’s rap conversation, hip-hop became more mindful of what other females have to offer. And for that phenomenon, Nicki created a metaphor: all these bitches is my sons.
In short, it means that Nicki Minaj has given birth to other rappers’ careers. But the metaphor has taken a life of its own, appearing over and over again in her verses. Nicki Minaj paints herself as the Madonna with Children of rap music. Through this image, she explains what it means to be at the forefront of a fledgeling demographic in hip-hop, one that has long been the subject of controversy but arguably never has taken root before the rise of Nicki Minaj.
Given this backstory, I can kind of understand why Remy takes issue with seeing "all these bitches is my sons" being used to elevate Nicki's platform. In the words of the great philosopher Erykah Badu, artists are sensitive about their sh*t.
Nicki has created an impressive career and brand, and it seems to be, in part, based off of this metaphor that communicates her status an iconic trailblazer and creator of new avenues for women in rap. And, I agree with this. Nicki has broken a lot of barriers and no can take that from her, even if you don't like her or how she's accomplished it.
As Genius.com notes, the phrase really has become a shorthand way to refer to the doors Nicki is opening for others. I suppose if Remy believes she came well before Nicki (along with the earlier foremothers of hip-hop), and if Nicki is using Remy's words to build that platform, it make sense for this to be one of the straws that broke the camel's back.
What can Remy do about this though? At this point, not much, other than release something like ShETHER. And frankly she might not have been able to do much then. But what can other artists learn from her experience moving forward? Here are three primary takeaways.
#1. You own your works automatically. You don't give up ownership by posting it on social media.
Copyright law uses the term "work of authorship" to describe creations. This is defined to include:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
In the United States, if you create an original work that is also "fixed," you automatically get copyright protection for it. You actually don't have to register anything. Even if you write an entire poem on Facebook or post an entire Live Stream on YouTube, those are protectable if they meet the legal requirements.
It is a common misconception that once you post one of these items online, you give up copyright protection to it. You still own your work and you can actually get a social media site to take down things that copycats post.
So, to the extent Remy is claiming ownership of a writing she posted on Twitter, she has a point. There are, however, other issues, as I note next.
#2. But, copyright law doesn't protect everything.
Even given point #1, you can't copyright each and every thing you create. Here's what copyright law does not protect:
- Ideas, Methods or Systems
- Blank Forms
- Computing and Measuring Devices (including slide rules, wheel dials, or perpetual calendar design)
- Names, Titles or Short Phrases
- Fashion Designs
- Recipe Ingredients
So, if you're posting these kinds of items on social media, they are not protectable by copyright law and other people can copy them at will. You may be able to use other types of intellectual property protection though.
For example, inventions (which include methods, systems, and perhaps computing and measuring devices) can be patented and names, titles and short phrases can be trademarked, and recipe ingredients can be protected under trade secret law. If you'd like to take advantage of these other types of intellectual property protection, that requires a strategy, most typically an advance strategy. Once things are out of the bag you may lose whatever intellectual property you could have had.
In Remy's case, "yall bitches my suns" probably isn't protectable as a matter of copyright law because it is a short phrase. However, she might have a point, because some courts have created exceptions to the general law. The primary problem, which seemingly has lasted for eight years, is that Remy didn't seem to have a strategy for the work she posted online.
#3. Have a strategy.
Social media is "social," but it can also be numerous other things. In particular, if you're using social media to create additional revenue streams and/or disseminate your work, perhaps it is time to start treating it like a business. And businesses often have strategies.
Having an advance strategy about posts can save you a lot of headaches later. What would a strategy consist of? At minimum: (a) Think about registering the works that are most valuable; (b) Consider what the end game is for your work; and (c) Be vigilant in enforcing your rights in your work.
Regarding registering your work: if you get copyright protection automatically (and for free) why would you want to pay money to register your work with the Copyright Office? Because registration has many benefits, including the following.
- You have a public record that you created something and have ownership of it.
- If you want to sue someone for illegally copying your work, you have to have it registered first.
- While you can register your work any time, if you do it within 5 years of publishing the work, courts can assume that the copyright is valid and that everything in your application is true.
- If you register your working within 3 months of publishing it, or before someone else illegally copies your work, you can get better money damages in court. The other side may also have to pay your attorney's fees.
- You can record your registration with the United States Customs Offices to protect against illegal copies coming into the country.
Regarding the end game, what is the point of all of your posts? I imagine Remy wasn't thinking in 2009 that four words would be so important. And perhaps a strategy wouldn't have even brought this issue up for her so long ago. But, getting in the practice of assessing the value of your work and posts will serve you well over the long run.
For example, perhaps some catchy phrases could become trademarks for your business or brand. Or, perhaps those recipes you're posting online would make a bangin' cookbook, which would be copyrightable. Or, maybe those recipes could be better suited for trade secret protection, like the Coca-Cola recipe. These are just suggestions. Your individual strategy would, of course, depend on what your end game is.
Finally, be vigilant in policing and enforcing your intellectual property rights. Copycats are everywhere and perhaps you can't stop all of them. But, setting up Google Alerts can let you know when people are using words and phrases associated with your business or brand. You can also search Google images with photos (and not just text). If someone is reposting your photos as their own, you can find them in many instances. You can also get social media sites and other websites to take down unlawful posts by copycats.
Ultimately, my point is that social media is can be a blessing or a curse when it comes to the work of creators. Knowing how to engage with and on social media will determine which it is for any given user. We can definitely learn from this Remy and Nicki situation about what we'd like to have happen in our own experiences - which I suppose makes us their sons...
One more thing. I found this great infographic about what is and isn't protectable under the law. Check it out below: