With a subscriber base of over 6.6M on her YouTube channel, YouTube Beauty vlogger, Michelle Phan, is one of the most popular social media stars in the YouTube universe. Two of her most popular how-to videos, a “Barbie Transformation Video” and Lady Ga-Ga video have been viewed a combined total of just under 100M times. Her videos generally make use of popular EDM songs from a variety of artists and that has resulted in a lawsuit by Sony Music controlled EDM labels, Ultra Records and its associated publishing company, Ultra Music International. Filed in Los Angeles District Court, Ultra suit (Ultra International Music Publishing LLC and Ultra Records LLC v. Michelle Phan, U.S. District Court, Central District of California, No. 14-05533) claims Ms. Phan does not have the right to use Ultra Records artists music. They are suing Ms. Phan for $150,000 per infringement plus yet to be determined damages and an injunction against the use of Ultra Record’s artist’s music in her videos. In the past, Phan has used music from the label’s roster of artists, including popular EDM DJ/Producer, Kaskade. One video, “Nightlife Favorites” (1,487,180 views as of 7/20/14) features Kaskade’s 4AM.
Here are both videos from Michelle Phan including these songs, which are both listed in the credits under each video on their respective YouTube pages.
While Kaskade was severing his relationship with Ultra Records, choosing to not renew his agreement after 8-years on the label, Sony Music went on an EDM acquisition mission, acquiring, one of the the longest running independent EDM labels in the world. Ultra’s back catalog, including almost all of Kaskade’s releases on the label, now belongs to Sony Music. In a recent blog post about his frustrations with SoundCloud, the popular music sharing service known as the “YouTube of audio,” taking down both music he has a right to post and mixes and mashups deemed infringing, Kaskade said this:
“When I signed with Ultra, I kissed goodbye forever the rights to own my music. They own it. And now Sony owns them. So now Sony owns my music. I knew that going in.”
While labels like Ultra and Sony continue to control copyright in the digital age, Kaskade has recently been advocating for making music free. He’s taken an alternative position on how music should be distributed in the digital age.
Of course, with hundreds of millions of spins and the profit from YouTube including the above-mentioned songs at stake, there’s not much Kaskade can do about advocating for Ms. Phan, other than supporting her through Twitter.
Now, let’s focus on the reality of this situation. On one hand, you have a famous YouTube star with hundreds of millions of views on her video channel. Label video promotion consultants and the departments that hire them certainly ask for placement of these songs in popular online videos to get exposure. No matter whether the fan uses the music in videos or not, Ultra and its parent can claim payment from YouTube and performing rights organizations for those spins. YouTube has the technology to identify songs played in videos and therefore could effectively let Sony/Ultra know what music was used in which videos and how many times each video was viewed. And, we’re going to assume that YouTube has a license from Sony Music – one of the three majors – to play their music on-demand, therefore YouTube might be able to argue that it has the rights to play the music, which is why we aren’t seeing those videos being issued a takedown – just yet. But, that could change in the next couple of days.
Removing those videos would certainly be a blow to anyone hoping to derive revenue from them, so once they come down they don’t earn a penny for Ms. Phan or the labels with music being used in them. According to Ultra, the only thing Michelle Phan didn’t do was obtain a “synchronization license” from the music publisher – in this case, Ultra International Music Publishing – for the right to use the music in her instructional make-up videos. Here’s a helpful description from the ASCAP blog on sync licensing, which is why Sony/Ultra believes Ms. Phan’s videos infringe on their copyright. And, while this example if for television, it certainly applies to on-demand Internet streams from companies like YouTube as well. Todd Brabec, ASCAP Executive VP of Membership and Jeff Brabec write:
“When a producer wants to use an existing song in a network television program or weekly series, permission must, with few exceptions, be secured from the music publisher who owns the song. The producer or music supervisor of the show will decide what song they want to use in the program and the scene in which it will appear, how the song will be used (e.g., background vocal or instrumental, sung by a character on camera, over the opening or ending credits), and the media needed (e.g., free television, pay television, subscription television, pay-per-view, or basic cable).
The producer or its “music clearance” representative will then contact the publisher of the composition, negotiate a fee, and then sign what is known in the television business as a “synchronization license.””
If Michelle Phan and her video producers did not obtain a sync license but have proof that Ultra Records approached them to use their label’s artist’s music in her videos, then Sony Music and the Ultra label and publishing divisions won’t have much of a case. This is where major label interests generally conflict with the interests of independent labels and lesser-known artists who see the value in the exposure generated by being featured in a video series as popular as Ms. Phan’s. On the other hand, if Ms. Phan and her handlers ignored sync licensing rules, then she and her production company could be found liable by the court. Our money is on someone from the label giving them the music for exposure, but what do we know…heh heh!
What this amounts to is major labels continuing to assert control over their catalogs to find revenue where it may lie. With download sales declining and streaming on the rise, major labels look at licensing as contributing to their bottom line. While it’s fair to ask for compensation for music used in these YouTube videos, if its proven that the video consultants gave the music videos to Ms. Phan’s production company for promotional use and they signed waivers in that regard, Sony Music will have a difficult time proving copyright infringement.
Notice that Ultra never filed suit until after it was acquired by Sony. Remember, Ultra’s General Manager, David Waxman (who is a friend of Netmix) is also a DJ and producer. When they were independent, I don’t think Mr. Waxman would have advocated for this lawsuit, because if indies like Ultra started suing music services that give them exposure, they could risk harming those relationships over the long term. There’s not a lot of leverage.
In the indie EDM world, it’s probably not the best form to start suing others who are promoting your music. Once word gets out, you risk losing opportunities to sign high profile artists who may disagree with that position or get your music featured, because no one wants to take the risk of being sued.
We don’t exactly know, but it’s surely something to think about. And, that’s why Kaskade’s view on the music industry is so telling. We’ll leave you with an excerpt from the same blog post referenced earlier in this post.
There’s always been this cagey group of old men who are scared to death of people taking their money. Back in the day, they were upset that the technology existed to record onto cassette tapes directly from the radio. “What! (Harumph!) Why will people buy music if they can just pull it out of the air?!” Yet, people still bought music. Because it was more accessible. Because more people were exposed. Because Mikey played it for Joey on the corner and then Joey had to have it. It’s music, and we buy what we love. We can’t love music we haven’t heard.
Innovation helps the music industry. The industry only needs to make the effort to keep up and adapt. Make no mistake: exposing as many people as possible to music – all music – is a good thing. Everyone wins. The artist, the audience, even the old guys who just want some more cash.
The laws that are governing online music share sites were written at a time when our online and real-life landscapes were totally different. Our marching orders are coming from a place that’s completely out of touch and irrelevant. They have these legal legs to stand on that empower them to make life kind of a pain-in-the-ass for people like me. And for many of you. Countless artists have launched their careers though mash ups, bootlegs, remixes and music sharing. These laws and page take-downs are cutting us down at the knees.
And yo, musicians definitely need knees.
We referenced these stories in this post:
- UK Reuters: https://uk.reuters.com/article/2014/07/17/uk-copyright-phan-idUKKBN0FM2IY20140717
- TMX: https://www.tmz.com/2014/07/21/michelle-phan-lawsuit-kaskade-copyrighted-music-sued-response/
- MusicTimes: https://www.musictimes.com/articles/7769/20140720/kaskades-ex-label-ultra-suing-michelle-phan-copyright-infringement-acclaimed.htm