YouTube star Michelle Phan, who posts videos about makeup, has been sued by the Ultra recording and publishing companies (we’ll just call them “Ultra”). The suit alleges copyright infringement based on the music soundtracks in Phan’s videos. As of this writing, Phan’s YouTube channel has 6,749,142 subscribers and 981,217,011 views, so, while her videos may not be everyone’s thing (I don’t happen to watch a whole lot of makeup tutorials myself), there are big dollars and a lot of viewer eyeballs at stake.
So – can you play music in your YouTube videos?
The lawsuit, filed on July 16, 2014 in the U.S. District Court (Federal court) for the Central District of California, details nearly 50 examples of videos in which Phan allegedly plays prerecorded music tracks owned by the plaintiff. Ultra claims that “the Unauthorized Videos have been viewed more than 150 million times.” They are seeking the “maximum statutory damages in the amount of $150,000 with respect to each copyrighted work infringed,” as well as fees and costs. Doing the math, we’re looking at $7 million plus. Phan’s 2013 income was reported to be in the range of $5 million. This is real money, folks.
According to an article on the suit in Mashable,
Though Phan herself has remained quiet about the charges, representatives for the YouTube star told Mashable in a statement that she did have permission from Ultra to use the songs in question and that Phan and her legal team is planning on bringing their own suit against the label.
Ultra agreed to allow Michelle to use the music and Michelle intends to fight this lawsuit and bring her own claims against Ultra.
Michelle’s intention has always been to promote other artists, creating a platform for their work to be showcased to an international audience…
If Ultra did indeed license the music to Phan, then presumably her attorneys would attach the license agreement to a Motion to Dismiss and this case would be over before you know it.
What if there is no such agreement? In that case, Phan is in trouble. Using music that you don’t own or have a license for in your YouTube video is good old fashioned copyright infringement. Google’s YouTube copyright FAQ clearly states:
If you plan to include copyright-protected material in your video, you’ll generally need to seek permission to do so first. YouTube cannot grant you these rights and we are unable to assist you in finding and contacting the parties who may be able to grant them to you. This is something you’ll have to research and handle on your own or with the assistance of a lawyer.
What about fair use? Well, my regular readers know that fair use is a complicated matter. Heck, I recently posted a fun and informative (well, informative, at least) slide presentation about it – here’s the link, go ahead and read it, I’ll wait.
OK, now that you know the basics, let’s explore whether Phan’s use of the copyrighted music was transformative. As I noted in a blog post a few months ago:
Whether a use is transformative depends upon whether the new use “supersede[s] the objects of the original creation,” or instead, serves a new purpose…Even making an exact copy of a protected work may be transformative, provided “the copy serves a different function than the original work.” (Citing the Order Granting Summary Judgment in Dhillon v. Doe.)
So, does the use of the songs in Phan’s video supersede the objects of the original creation, serve a purpose or function? Not really. They’re just dance music tracks playing in the background. There’s no commentary or new context. If Phan’s uses are transformative, then any use of any recorded song in any online video is transformative, and I don’t get a sense that’s what courts are talking about when they use this term of art.
Phan had better produce the agreement with Ultra, or else she’s going to be writing a big check. Be careful what you post on YouTube, folks.
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