Musician Whose Works Are At Center Of Copyright Lawsuit Against YouTube Star Slams Lawsuit And Copyright

from the good-for-him dept

Wed, Jul 23rd 2014 10:01am — Mike Masnick

A couple days ago, someone sent me the lawsuit that Ultra Records and Ultra International Music Publishing had filed against Michelle Phan, an incredibly successful "YouTube star" who has over six million subscribers to her YouTube channel where she shares makeup tips. Ultra, a label for artists like DeadMau5 and Kaskade, sued, claiming that Phan used at least 50 of the songs it holds a copyright on without a license. The reason it's both the record label and the publishing arm that's suing is that they're going after her for both reproduction and sync rights (you need a sync license if you use music with a video). Of course, it's also important to note that, these days, Ultra is effectively Sony Music under a "strategic alliance" in which Sony basically runs all of Ultra.

Phan's spokesperson is apparently claiming that she had a license. Ultra insists she did not. Perhaps as interesting, rather than just claiming statutory damages of $150,000 (the maximum for willful), it leaves open the possibility of going after her for "actual damages." This almost never happens in a copyright lawsuit, in part because actual damages are nearly impossible to prove (often because there are none). However, Phan is apparently making a ton of money these days, so the company seems to be leaving open the possibility that it can score some of the "profits" from the video. Though, I imagine they'll have a hell of a time proving that the profits are due to the music, rather than the other parts of the video.

Still, what makes this most interesting is that one of the musicians whose music is at the center of the case, Kaskade, has spoken out strongly in support of Phan, arguing that "copyright law is a dinosaur," that he supports Phan rather than his label and... that she has great taste in music. He also has highlighted that having folks like Phan promote his music helps people love that music (and buy it too):

A bunch of sites have covered those tweets, but few looked at the fascinating Tumblr post that Kaskade did a month ago, in which he trashed today's copyright laws after a bunch of his music was taken down off of SoundCloud. He talks about doing a deal with the devil in signing with Ultra/Sony:

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. Soundcloud is beholden to labels to keep copyright protected music (read: all music put out by a label, any label) off their site unless authorized by the label. Am I authorized to post my music? Yep. Does their soulless robot program know that? Not so much. So some stuff they pulled was mistakenly deleted, but some tracks were absolutely rule breakers. The mash ups. (Read about those little beauties in “Politicking of a Mash Up”.) I post mash ups mainly because I don’t need to keep these things tucked under my pillow, pulling out my little Precious only to be played at gigs. You want to hear it? Grab it. Like it? Great. The end.

But the labels, they aren’t feeling this approach so much.

But then he digs in deep on how broken copyright law is, how scared old men running record labels are doing stupid things, and how it's all harming musicians:

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.

And, from there, he notes that music sharing has been great for musicians by getting them more attention. And he argues that the labels should get with the program:

We have moved beyond the exhausting notion that our greedy hands need to hold onto these tunes so tightly. The world just doesn’t work like that anymore. I’d happily parse out the pieces of every song I’ve made for others to use. Remix that. Use that. Think you could do it better? Show me. It’s laughable to assert that someone is losing money owed to them because I’m promoting music that I’ve written and recorded. Having the means to expose music to the masses is a deft tool to breathe new life into and promote a song. It’s the most compelling advertising, really.

But it’s more than advertising. It’s sharing. If a person likes one song, then you know what’s likely to happen? They’ll press the download arrow and own it for free. You won’t believe what happens next! They become familiar with the artist, and seek out other material. Maybe they buy that. Maybe they talk about it online. Maybe they go to a show. Maybe they simply become a fan and tell a friend.

I’m cool with that. The labels should be too. It’s exactly what they’re trying to accomplish by funneling endless money for Facebook Likes, Twitter trending hashtags, and totally ridiculous impotent advertising campaigns. Let the people have the music. Or, to put it in language that makes more sense for the ones who can only speak dollar bill - Free the music, and your cash will follow.

It's a great read. And yet, now his works are at the center of a massive lawsuit that could end up costing someone millions of dollars even as he speaks out against the lawsuit. And, of course, Ultra could have just made use of YouTube's ContentID tools to either monetize or silence or take down Phan's videos. But, instead, the company chose to sue. It's not hard to see why. With so many of these lawsuits it's the same thing: jealousy. They see Phan being successful -- and they stupidly believe that it's just because of the music. And so they want their cut. And the way to do that is to sue. Because these days, that's pretty much all the legacy music industry knows how to do. To file lawsuits that just anger pretty much everyone else -- including the very musicians they claim to "represent."

234681309 Ultra Records v Michelle Phan Copyright Complaint (PDF)234681309 Ultra Records v Michelle Phan Copyright Complaint (Text)

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Filed Under: copyright, kaskade, michelle phan, youtube
Companies: sony music, ultra international music publishing, ultra records

35 Comments

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jameshogg (profile), 23 Jul 2014 @ 10:15am

Ah yes. Copyright. Claiming it is defending identity rights on one hand and insisting those identity rights can be "sold" on the other.
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gorehound (profile), 23 Jul 2014 @ 10:32am

These musicians should never have signed with the label in the first place.So go ahead musicians and be traitors...go sign your Art and life away to the greedy MAFIAA Asshats.
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Adam (profile), 23 Jul 2014 @ 11:04am

I think it would be great if she just started not using music... and then to see her income rise... then counter-sue saying that by using their music she actually was making less and therefore their copyrighted tunes were actually causes her a loss. Wouldn't that be awesome?
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David, 23 Jul 2014 @ 11:31am

Re:
Here it how it is in Germany, with the GEMA being the RIAA equivalent.

The choice is simple: either sign a contract with GEMA or not. If you don't, you're on your own. I'll get to that later.

If you do, you are signing away for at least 5 years the exclusive rights to everything you produce. Want to put promotional material on your web site? Register it and pay the fees for the downloads of every piece of music you wrote and produced yourself. You'll get them back a few years later, of course with the "handling fees" deducted.

Radio stations, opera houses, concert locations, music schools and so on tend to have blanket contracts with the GEMA. They pay the GEMA for every concert, regardless whether or not the artists/works are actually under contract with the GEMA. If you want to get around that as one not being affiliated with the GEMA, you need to rent the venue with yourself being the concert manager. There will be paid spies in the audience that check that every work and artist is definitely not registered in some manner with the GEMA.

Artists not registered with GEMA have a hard time getting full payment: after all, all the standard concert locations have to pay the GEMA already, so why should they pay the artist again?

If you want to have CDs produced, you need a permit from the GEMA, whether or not you are under contract there. Fees will get deducted, and you'll get them back eventually minus processing charges if you enter all the paperwork.

Without clearance from the GEMA, no CD factory will produce your CDs.

GEMA's reach into music is thorough enough that courts have ruled that radios playing music from pseudonymous musicians have to pay GEMA fees since the GEMA suspects that those musicians are under contract with them and try to escape their contractual obligation to route money to them for every work.

Note that the pseudonymity then obviously means that the GEMA will cash in on 100% of the fees (as opposed to their usual percentage) without ever paying back anything to the creator.

If you are not "signing your art and life away", for most of your work the GEMA will still get paid and your customers will not like to pay twice. So you are really, really, at a disadvantage by not signing on.

I expect things to be similar with the RIAA.

It's an infuriatingly hard choice to make for an artist. Yes, it is sort of like selling your soul, but nobody else will offer much for you keeping it.
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John Fenderson (profile), 23 Jul 2014 @ 11:39am

Re: Re:
That all sounds like an excellent reason for artists (German and otherwise) to just skip Germany altogether and market to more sane parts of the world.
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Anonymous Coward, 23 Jul 2014 @ 12:03pm

something the labels are definitely forgetting is that there are more and more independant musicians and singers. they haven't signed up with a major label because they dont need that millstone round their necks and can do as good a job themselves. that leads in to the fact that eventually, the labels are going to run out of having enough musicians etc to make it worth while continuing. what are they gonna do then? if they have too few artists on the books and suing others is then a hard to find option, they will shrivel and die. all they are doing atm, as well as pissing off even their own artists, is making a rod for their own backs. when push comes to shove, who will save these dinosaurs then?
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Anonymous Coward, 23 Jul 2014 @ 12:18pm

Re: Re:
Why not have them produced outside the country?
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That One Guy (profile), 23 Jul 2014 @ 12:26pm

Re: Re:
Yeah, GEMA is probably the worst 'collection' agency, and for all intents and purposes they own the german courts, who always rule in their favor.
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jupiterkansas (profile), 23 Jul 2014 @ 12:38pm

Re:
This is what we have been banking on for over 10 years, and yet the dinosaurs are still around (well, most of them anyway).

And they will not die without a fight, even if it means destroying the whole industry.
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Anonymous Coward, 23 Jul 2014 @ 12:55pm

That's not stupidity that drives them to say she's making money because of the music. It's arrogance and greed.
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Anonymous Coward, 23 Jul 2014 @ 1:11pm

It's always been the stance of the copyright folk that people that download and people that remix need education. Every time there is a court action it is tried in the court of public opinion before it is even heard by the judge.

The fines they use as examples are outrageous, designed to prevent businesses from producing outlaw copies. It was never meant to be put against individuals. It has netted them very expensive crowing rights and that is about all.

Here's the thing though. All this negative BS and crap they have put people through have made me realize I don't want as much as a penny going to them of my money. So I went on boycott with the start of sue'em all. That's right, I've not bought a song nor album in all that time because of it and am not likely to buy anything ever again from them. In the process I don't hear new music, develop no attachment to it nor an artist, don't relate at all any of the hype, and hence it is far easier to just ignore their total crap.

So an education I've gotten from them. One that says never fool with their stuff in any manner for a trouble free existence on the net. Many others have gotten the same message. Not exactly what is needed for continued business eh? Even my computer has the sound drivers disconnected. Not a chance I'll ever hear it. Then again, because I'm not exposed to it, never a chance I'll ever buy anything either.

Copyright law is so convoluted in the effort to capture every penny, that it is meaningless to the average joe. So much so that I hear over and over others ignoring it. It's a battle that was lost before it was fought on the internet.
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Tim A, 23 Jul 2014 @ 1:16pm

"We can’t love music we haven’t heard."

But Hollywood still wants you to be paid the first time you do, even when it sucks!
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Tim A, 23 Jul 2014 @ 1:18pm

Re:
Whoops, errant "you". I meant:

But Hollywood still wants to be paid the first time you do, even when it sucks!
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any moose cow word, 23 Jul 2014 @ 1:41pm

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.
That's how it would be if they were actually in the business of selling music. No, those cagey group of old men are in the business of controlling music. They want to control every conceivable avenue for listening to music in order to extract payments "for the artist", which they keep the lions share of for themselves, and to dictate who the next wave of mega stars will be. They don't actively promote many acts, but they want the select few who gets the golden ticket to give the highest returns on their investment as possible.

It’s laughable to assert that someone is losing money owed to them because I’m promoting music that I’ve written and recorded.
Those label promotions involve a lot of middlemen, positions that otherwise wouldn't exist if anyone and everyone was free to make and promote their own music themselves, and these middlemen do everything possible to keep their fat paychecks.

It's not that labels don't offer some useful services, the problem is that they want to pad artists' contracts with as many as they can so that the artists can't possibly afford them without signing over their copyrights. Artists need to stop expecting labels to do everything, because they don't do some of them that well anymore and expect far too much in return. If you can do something yourself, and do it better, you're better off doing just that. When there's something that a label can do better, then have them do only that. Their control needs to be reeled in, they need to be relegated to mere service contractors. Of course they don't want that at all, it's not nearly as profitable, but the industry is just not going to support their profiteering much longer. They'll either need to adapt to the new reality or just become entirely irrelevant as other payers provide the services that artist actually need.
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jupiterkansas (profile), 23 Jul 2014 @ 1:43pm

Re:
You disconnected your sound card just to avoid the RIAA? That's pretty hardcore.

Unfortunately, you're basically letting the RIAA deny you one of the great pleasure of the world. There's LOTS of music that's not part of the RIAA, and LOTS of ways to get that music legally and for free.
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Anonymous Coward, 23 Jul 2014 @ 1:50pm

Re:
Yep. While I agree with everything Kaskade said about music and copyright, I feel it's rather hypocritical to sell your music and THEN complain about what the purchasers do with it.
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any moose cow word, 23 Jul 2014 @ 1:53pm

Re:
Also, artist need to demand far greater transparency in how labels charge them because they tend to charge for anything and everything, much like a hospitals here in the US. This is why artists should never have let labels handle services and accounting! They should be made to itemize everything and prove they actually provided those services. And just like hospitals, labels do everything they can to obfuscate their price list.
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Anonymous Coward, 23 Jul 2014 @ 2:00pm

Just let that part of my portfolio go, sounds like desperation, that along with other things I've heard as of late. Thanks for the heads up. Must be nice to get paid for work someone else did once, and over, and over, and over again. The love of money is a root of all kinds of evil.
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Anonymous Coward, 23 Jul 2014 @ 2:10pm

it'll be interesting, if Ultra squeezes any money out of this lawsuit, to see Kaskade post exactly how much of it goes to him afterwards (highball guess: $0)
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Stu, 23 Jul 2014 @ 3:05pm

I could be wrong but...
Is ContentID an option for music used in videos published by MCNs? I was under the impression that it wasn't - hence past lawsuits from publishers and direct licensing deals with labels.

Fairly sure that if you're an MCN (and Phan owns her own MCN) you're responsible for licensing music, you can't just leave it to ContentID.

Not that this affects whether you think Ultra is right or wrong, but I suspect ContentID may not have been an option.
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That One Guy (profile), 23 Jul 2014 @ 4:03pm

Re:
Yeah, the money from such lawsuits never go to the artists supposedly 'harmed', it just gets funneled into more lawsuits.

For being touted as 'protecting the artists', the artists sure do seem to get a big fat nothing out of the proceeds, funny that.
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Whatever (profile), 23 Jul 2014 @ 5:22pm

The artists almost always are against the lawsuits, I suspect mostly because they don't want to look bad.

What they really hate to admit is that the sold out a long time ago to the man, giving all the rights over to the company in return for a big fat advance and the chance to be "rock stars". In doing that, they lost the standing to complain on what happens with the works they already sold.

Actually, it's a bit like the dreaded artist tax on resale. The artist sold the rights to their music to someone else by contract, they shouldn't have a say (and that say shouldn't matter) when it comes to the legal matters after that point. If it gets licensed to something they don't like (say like Sarah Palin's presidential campaign) or as music for a commercial for Viagra, the artist shouldn't have any say - they sold it already.

So whatever the artist has to say about the licensing of the music, it's moot. They already sold it.
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That One Guy (profile), 23 Jul 2014 @ 5:39pm

Almost
...giving all the rights over to the company in return for a big fat advance which they have to pay back several times over before making any real money and the chance to be "rock stars".

Also, there's a difference between having a choice in what their music is used in(lawsuits, presidential stuff, etc.), which they don't have once they sell off the rights, and the right to tell people 'This is 'our' music, but we do not support what it's being used for/in', which they still have even after selling the rights.
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Anonymous Coward, 23 Jul 2014 @ 5:41pm

Re:
So can we all agree that whenever antipiracy enforcement whines that it's about "remunerating" the artists being "stolen" from, it's really not?
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BS Simon, 23 Jul 2014 @ 7:23pm

If she has a license...
Since they brought a suit and she says she has a license, if she produces the license could she counter sue for attorneys fees?
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Anonymous Coward, 23 Jul 2014 @ 8:45pm

Manufactured "Stars"
You know? In 2001, some studio in London called "Popstars", tried to create a "star" group, of five girls, called "Eden's Crush". They used TV specials, advertising campaigns, a "special CD release", and even manufactured fan clubs to try to make them into "stars". It flopped. Why? IMHO, the songs were weak and strained, the talent so-so, and there was basically ONE song on that CD that was even vaguely worth listening to, "What's Good 4 The Goose".

The point is, regardless of what the "star makers" want, the listening public determines who will be a star, not the labels.
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PaulT (profile), 24 Jul 2014 @ 12:15am

Re:
"What they really hate to admit is that the sold out a long time ago to the man"

Apart from where Kaskade admits that exact thing in the article you're responding to, you mean?

Don't you even read before lying your ass off any more?

"So whatever the artist has to say about the licensing of the music, it's moot. They already sold it."

Which is why people want to change the system so that artists don't lose control over their own music forever just because they wanted it distributed to fans. But, you trash everybody who supports a change, including the artists themselves. Why are you so vehemently against this?
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Groaker (profile), 24 Jul 2014 @ 5:31am

The days of the Payola scandal, where music distribution companies PAID radio jockeys to play their artists music, are looking incredibly naive and nostalgic.
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Ninja (profile), 24 Jul 2014 @ 6:06am

Re:
The artists almost always are against the lawsuits, I suspect mostly because they don't want to look bad.

You can suspect whatever you want. Facts seem to go against your suspicion.

In doing that, they lost the standing to complain on what happens with the works they already sold.

Which means copyright does not protect the artists and does not promote further creativity while screwing up the artists? Good to know.

If it gets licensed to something they don't like (say like Sarah Palin's presidential campaign) or as music for a commercial for Viagra, the artist shouldn't have any say - they sold it already.

Yeah! Screw the artist!

So whatever the artist has to say about the licensing of the music, it's moot. They already sold it.

Glad you made your point. Makes future discussions much easier.
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Groaker (profile), 24 Jul 2014 @ 6:48am

Re: Re:
There is currently a filing against some YouTube videographer who reputedly uses copyrighted music, though she claims she has a license. She also seems to have made enough money to fight if she so chooses.

The artist is question claims to support the the videographer, and that the videographer provides free advertising and increases sales. While the artist has no particular legal standing in the ownership of the music, it could make for extremely powerful testimony especially in light of the industries history (and continuing) payola scandals. Now the industry doesn't pay the DJ directly, just sets up and fills a bank account. Such testimony and information could sway a jury. When in business, actions often speak louder than written contracts.
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John Fenderson (profile), 24 Jul 2014 @ 10:03am

Re:
"So whatever the artist has to say about the licensing of the music, it's moot. They already sold it."

Legally, you're right. However when it comes to what I actually care about, it's what the artist wants. I couldn't care less what the labels want. Of course, I dodge the whole issue by avoiding all RIAA-member labels entirely and buying my music directly from artists who are not signed with a RIAA-member label.
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Avatar28 (profile), 24 Jul 2014 @ 10:45am

Re: Re:
Then perhaps the purchasers shouldn't drag the artists into it by claiming that they're doing it on behalf of the artists and that they have to do it to protect and support the poor starving artists who will surely suffer greatly if the practice is allowed to continue.

The artist's name is on the music. That then ends up attaching them to the lawsuit in people's minds (especially since the label claims to be doing it on their behalf) and drags their name through the mud. I don't blame him for speaking up if he doesn't agree. He should be entitled to say that, hey, this isn't me doing it. I don't agree with it so please don't blame me. Plus there's always the chance that the label withdraws at least his music from it if they start looking (even more) bad from "protecting" the artist when he doesn't want their protection.
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Avatar28 (profile), 24 Jul 2014 @ 10:45am

Re: Re:
Then perhaps the purchasers shouldn't drag the artists into it by claiming that they're doing it on behalf of the artists and that they have to do it to protect and support the poor starving artists who will surely suffer greatly if the practice is allowed to continue.

The artist's name is on the music. That then ends up attaching them to the lawsuit in people's minds (especially since the label claims to be doing it on their behalf) and drags their name through the mud. I don't blame him for speaking up if he doesn't agree. He should be entitled to say that, hey, this isn't me doing it. I don't agree with it so please don't blame me. Plus there's always the chance that the label withdraws at least his music from it if they start looking (even more) bad from "protecting" the artist when he doesn't want their protection.
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Anonymous Coward, 24 Jul 2014 @ 9:58pm

Re:
but they didn't sell it to the labels, they only licensed it to them.
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John Fenderson (profile), 25 Jul 2014 @ 6:13am

Re: Re:
Actually, they sold it.
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