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Thursday, 24 July 2014

When the Writ Hits the Phan

Making YouTube videos for a living or as a hobby is a growing phenomenon. You can delve into the lives of “beauty gurus” or watch tutorials on just about everything from cooking help to how to make rainbow loom bracelets. While creating new content does not raise problems, using songs protected by copyright can land you into trouble as Michelle Phan has just discovered. Ms Phan, a YouTube entrepreneur earns money through the platform by making make-up and lifestyle videos. As background music for her videos, she has used songs from various artists. Ultra Records, which is in charge of some of the artists’ works featured in Ms Phan’s videos, brought an action for copyright infringement against her.

Artists usually assign their rights to a music society in exchange for royalty payments. The society then takes care of granting licences to other parties who wish to use the artists’ works. Artists therefore no longer have the right to decide whether to allow someone else to use their work, nor can they sue people for unauthorised use, as it is the music society which becomes responsible for this.

Among the songs featured by Michelle Phan in her videos is Kaskade, and although his songs are some of the most used ones in her videos, he does not agree with his record label’s decision to sue her. Despite having no control over the claim, he is siding with her on this matter. In her support, he has said: “Copyright law is a dinosaur, ill-suited for the landscape of today's media.” True, copyright laws were designed around a time when the YouTube phenomenon could not be anticipated. Today, content is created constantly on YouTube and songs are often added to videos. “Free music” can be found online, but it is unlikely to include any “trendy” songs.

The label’s complaint contains 50 alleged instances of copyright infringement, and they are asking for £88,000 for each proven breach. They fear that unless ordered to stop by the court, Michelle Phan will continue to use materials without their permission. However, a spokesperson for Ms Phan said that the claims lacked merit and emphasised that Ultra had agreed to let her use the music previously: “Michelle's intention has always been to promote other artists, creating a platform for their work to be showcased to an international audience.” Fans on twitter have attested becoming aware of Kaskade’s songs through her videos. 

Whether the works were used with or without permission remains to be seen. The usual policy when copyright infringement is alleged on YouTube is the take down the videos, but given the extensive use of copyrighted music here, we shall have to see what happens next. Ms Phan has more than 6 million subscribers to her YouTube channel and it is perhaps the potential loss of revenue from broadcasting to a public of this size that is the driving force for Ultra Records’ claims. They maintain that she used the songs in her videos without their permission and that despite not requesting a licence to use the musical works, she “…continues to wilfully infringe in blatant disregard of plaintiffs' rights of ownership”.

More on the story here.


6 comments:

Anonymous said...

Indeed, the BBC story goes on to say "He expressed his disbelief on Twitter that his own record label was suing Ms Phan for copyright infringement. "And the kicker... they're citing her using my songs for the suit. Come. On," he wrote on the site."

It does rather suggest that record companies' insistence on copyright protection being essential to the livelihoods of artists as being a little bit exaggerated.

[By the way, often when I lauch IPKAT it complains that it "cannot be shown in a frame"; and often recently if I click on the "xx comments" to put up a new window with the comments in, it says I have "unsaved changes" when I try to close the window. Could these be fixed, please?]

Jeremy said...

Thanks, Anonymous: I think the problem lies with either your choice of browser or your browser setting -- I've not experienced this problem on the various computers I've used and no-one else has reported it (yet).

Anonymous said...

Do the copyright assignments not contain provisions requiring the assignor to give such assistance as may be required to support infringement lawsuits, and to refrain from impeding the same? Cannot Ultra compel Mr Kaskade to refrain from disparaging the merits of the lawsuit in a public forum? If not, tighter drafting is clearly required.

Anonymous said...

anonymous at 12:51,

Check into concepts such as contracts of adhesion and public policy making certain contract provisions de facto unenforceable.

"Tighter drafting" may not be the workable answer you think it to be.

Anonymous said...

I have the same problem as Anonymous at 22:15, in that if I click on the "xx comments" to put up a new window with the comments in, it says I have "unsaved changes" when I try to close the window. I haven't experienced the problem with frames though.

Anonymous said...

>>Do the copyright assignments not contain provisions requiring the assignor to give such assistance as may be required to support infringement lawsuits, and to refrain from impeding the same? Cannot Ultra compel Mr Kaskade to refrain from disparaging the merits of the lawsuit in a public forum? If not, tighter drafting is clearly required<<

Kaskade is not under contract with Ultra Records; he was released by the label on or before March 20, 2014 and he is currently not signed to any label/publisher/distributor.

>>It does rather suggest that record companies' insistence on copyright protection being essential to the livelihoods of artists as being a little bit exaggerated.<<

Fledgling artists tend to rely on record label advances and other support; established artists like Kaskade develop revenue streams independent of their record label such as tours and live performances.

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