YouTube makeup vlogger sued by record label for $150K per song


#1

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#2

Youtube claims to remove videos with copyright-infringed music being used in the back ground of that video. If she is so famous then Youtube is liable for letting her continue to use music she didn’t have permission to use.


#3

Still don’t know why having a song on in the background of a video isn’t fair use. It’s not like people are going to be able to use a Phan video as a replacement for buying the thing on iTunes or anything.


#4

Scribd link to the court docs.


#5

Does she provide credit to the artist and/or a link to their music? She shouldn’t have done it, but the amount being asked is ridiculous, and no way is that lost revenue.


#6

So did they willfully ignore the mechanisms for youtube takedown until there was the potential for a sizeable payout via lawsuit?


#7

Just went and checked. It looks like she ends videos with a song note (artist & song title) and the same credit is available in the info if you pull down. There, she also includes a hotlink to a purchase location.

It doesn’t look like she was intentionally shortchanging the musicians. She may not have realized that she needed to provide further compensation to them directly if early on she asked artists for permission and they gave it. I have a feeling this is a case of her just getting too successful and not altering her business practices to match. Hopefully they’ll reach a settlement that everyone agrees on.


#8

Phan is making money from her videos. Though I can’t substantiate this, I read in other discussions that she got a deal from youtube for a million bucks for a series of her videos. Nothing wrong with that, good for her! But between that, a book deal, a cosmetic line, and something with Dr. Pepper (based on the court filings), one would expect to be in good standing when in comes to music licensing.

This is essentially the same if your favourite tv show featured music and said screw it to getting proper licensing for it.

Also, if the videos are synced up to the music (ie. transitions with the beat) it makes a big difference, you can’t claim it’s just a background track anymore. From the one song I had to get properly licensed this changed the prospective fee 3-fold.

Yes, the music licensing system needs a huge revamp, if not complete destruction, but this isn’t some poor vblogger vs monolithic record label. I would almost think the vblogger is more known than the label, but neither is my thing, so no idea.


#9

It’s likely whoever endorses her will be asked to pony up.


#10

I agree.

I do think it may just have been oversight on her part because her business has grown rapidly. She’ll have to pay a price for that. Hopefully it won’t be too bad, because she was acknowledging the artists and (I believe) making the music links available. Their “loss” wasn’t the claimed loss - they’re just seeking penalties on a deep pocket case.

I’m guessing that the judge will probably require info about what they would have charged for this type of license in the first place, and then fiddle with it a bit to make sure she understands she broke a law.


#11

It’s a shame, in my opinion, that more people don’t take advantage of the huge catalog of creative commons, free use music. I offer my entire catalog of work free to anyone who wants to use it, and my label is 100% ok with me distributing my music for free (it’s an option in the contract for all their artists). I’m sure I’m far from alone.

What’s happening here is kinda grotesque, but I think it’s fair to point out that it’s not like the choice is “Open yourself up to lawsuits” vs “don’t have music”.


#12

Given the artists named and after listening to the first track of yours I am not sure that would be her style.

On the other had I think you could do a really good make-up vblog with your music.


#13

Well, background music is a legitimate thing legitimate musicians should be able to make legitimate money from. Michelle Phan makes an incredible amount of money from what she does. Part of the reason for that is the atmosphere she creates in her videos. There are plenty of musicians who make their living from the vague unplaceable poppy background music in commercials and TV shows. When it’s shitty, you notice. So it’s not like it’s a replacement for Jane Schmuck buying a single on iTunes, but it’s a replacement for SoAndSo Beer Company paying a band (potentially a lot of) money to use their song in an ad. And considering that a lot of the time, companies don’t want to use songs that are already associated with something else…


#14

Fair use is dead. Long live the great corporations entrusted with the management of our culture!

No, wait, fuck them.


#15

Have people suddenly started watching makeup tutorial videos instead of buying the music? What possible type of damages could the inclusion have caused? I mean, I can sort of understand how music companies can cite at least a tiny amount of damages during filesharing (they could argue that someone would download a song instead of paying for it), but are they really going to argue that people are watching makeup tutorial videos (with music in the background) instead of paying for the music? This is a shakedown pure and simple, and Ultra is making fraudulent statements and outright lies like that they have “sustained and will continue to sustain substantial, immediate and irreparable injury”. No. The only losses Ultra is having is in their Mafia-like shakedown business.


#16

And that is what the Content ID system allows the labels to do, without any permission from the video creator. All they have to do is claim their music is in a video and they are allowed to receive advertising revenue for it. Or they can issue a DMCA takedown notice. The labels appear to have decided to take a greedier route. The issue may be because Phan is a major YouTube channel and there is some sort of conflict within Google policies about who can get the advertising income, and in what proportions.

The fact is that there is no central clearing house for sync rights. Neither ASCAP nor BMI can license sync rights. Sync rights aren’t covered by the compulsory license. So there is no easy way for Phan or other YouTubers to license pop music, thanks to lobbying by the industry to keep it that way.


#17

Youtube claims a lot. Youtube also conveniently puts “Buy this song from the Play Store” links on videos with identified background music as well.


#18

I can get on board with that. The only problems with that are the problems of copyright and the intellectual property model itself, but that’s certainly a broader context that wouldn’t be in consideration here.


#19

I’m not saying she should use me in particular, I’m saying that if you want to have music to include in your video production, there are tons of options that don’t run the chance of enraging the lawsuit machine.


#20

Big Ugly and Monster sound like perfect titles for makeup “vlogger” soundtracks!