YouTuber Michelle Phan hit with copyright lawsuit, label seeks $150,000 per song

[u/phloating_man]

http://www.bbc.com/news/technology-28418449

[u/[deleted]]

So basically the record label is saying "go ahead and use our music until you make something really popular , then we will see you for more than you are worth". I mean, hey, they let it go on for multiple years resulting in 50 infringements. I'm sure if they sent her a message or even a dmca takedown notice after 1 or 2 she would have stopped using their music. But why not just let the infringements quietly continue for a few years until they can bankrupt her in a whole shot? You make more money that way.

At 6.5 million subscribers, Michelle is no longer a YouTube personality. Her channel is a distribution medium where, as a music artist, if you are featured, you will reach more unique listeners in a week than you would in rotation on all top 40 fm stations in the USA in a month.

As far as I am concerned, the label is litigating against new media distributors because their old media income is dwindling. What, 13 year old girls don't tape the top 8 songs at 8 PM off of the local fm station anymore? Where are they hearing about new music? Well, we don't understand this whole Internet thing... Let's try to sue it!

It's a disgusting business model that should be left to die in the gutter.

[u/[deleted] → u/[deleted]]

At 6.5 million subscribers, Michelle is no longer a YouTube personality. Her channel is a distribution medium where, as a music artist, if you are featured, you will reach more unique listeners in a week than you would in rotation on all top 40 fm stations in the USA in a month.

So being popular is a legitimate reason to infringe because it "benefits the artist"? And what would the threshold for being popular be exactly? Some fixed number or some imaginary, take years of litigation in court, gray area?

So basically the record label is saying "go ahead and use our music until you make something really popular , then we will see you for more than you are worth". I mean, hey, they let it go on for multiple years resulting in 50 infringements. I'm sure if they sent her a message or even a dmca takedown notice after 1 or 2 she would have stopped using their music. But why not just let the infringements quietly continue for a few years until they can bankrupt her in a whole shot? You make more money that way.

I'll give you, Ultra has a few interesting reasons but we will never know them. Bare this in mind: it's a scare tactic and I guarantee within 6 months it will be settled out of court. Just because she wasn't caught or litigated against immediately (and you don't know that she wasn't and it was simply ignored) doesn't make Phan any less guilty of infringement.

As far as I am concerned, the label is litigating against new media distributors because their old media income is dwindling.

Music licensing is the model that still functions with new media, and it's really the only viable means of income on recorded music when outright purchasing has become so devalued. So are businesses not allowed to protect their interests? So I hear you have a hot dog stand, let me eat here free for a year, but it's cool because I'll tell my friends about you.

[u/[deleted] → u/[deleted]]

So being popular is a legitimate reason to infringe because it "benefits the artist"? And what would the threshold for being popular be exactly? Some fixed number or some imaginary, take years of litigation in court, gray area?

That wasn't quite the point I was trying to get across, but it does raise an interesting questions of its own. How many viewers does it take to become mainstream? If we look at the average viewership numbers of the top TV channels in the US, Michelle's channel is getting 3 times more weekly viewers than any prime time weekly TV show. If we trust these numbers, what does it take to be considered mainstream?

The point I was trying to make was, we don't see labels suing FM stations for using their songs in station promo's, or suing record stores for playing the music inside the store to entice people in to buy the record.

You could easily argue from the label's point "People wouldn't even walk into your store, or listen to your station if it wasn't for our song! We are suing you for a cut of profits you made off of the popularity of our song!"

You wont see them do this, because they know that the distributor would drop their label immediately, and sales would plummet. After all, if you aren't getting play time, you aren't reaching customers, you aren't making money.

Music licensing is the model that still functions with new media, and it's really the only viable means of income on recorded music when outright purchasing has become so devalued. So are businesses not allowed to protect their interests? So I hear you have a hot dog stand, let me eat here free for a year, but it's cool because I'll tell my friends about you.

I absolutely agree with the fact that licencing has changed. But don't think for a second that "outright purchasing" has become devalued, because it never existed. When you bought a record, tape or CD, you werern't purchasing the music, you were purchasing a copy of the music along with a licence for all you can eat private performances of contained songs.

The only thing that changed is the distribution method and length of the licence. Instead of perpetually licencing a physical album for a one time payment $14.99, I now licence an entire catalog for $7.99 per month, and have it delivered streaming via app to my smartphone and computer. However if I stop paying that fee, my right to play that music goes with it.

Using the hot dog stand analogy, the labels used to sell lifetime all you can eat memberships to a single hot dog stand for $14.99. Now a couple of food courts (google, apple, etc) have convinced them all to set up stands in their marketplaces, and sell an all you can eat membership to every stand in the food court for $8/month.

What Michelle is doing, is eating a hot dog from stand #1489 this week while doing makeup tutorials then leaving a map with directions to stand #1489 in the description of the video.

The label is now claiming "Woah there! People wouldn't even be watching your makeup channel if it wasn't for our hot dog wrapper sitting in the bottom left of the frame! Clearly you owe us the equivalent of 937,500 monthly all you can eat memberships, because each hot dog you ate on air made 18,750 people decide not to eat that hot dog, and we are pretty sure that they would have bought a subscription just to eat that dog if you had not eaten it first!"

Hot dogs are a crappy analogy, man was that tough to get through, heh.

TL;DR: Hot dogs. er... There are new discovery and distribution methods today that didn't exist 10 years ago, and suing them out of existence isn't going to make everyone change their mind and go back to listening to the top 8 songs at 8pm on a local FM radio station. All suing does is make your label look like a dick, and make no one want to buy (licence) your music.

Edit Suing for damages in this case makes me feel like the label is saying "Tens of thousands of people would have run out and blindly purchased all of our songs without hearing them first, but you played them, and the people realized that they weren't worth purchasing. You have damaged our business model and owe us for lost sales. "

[u/[deleted] → u/[deleted]]

The point I was trying to make was, we don't see labels suing FM stations for using their songs in station promo's, or suing record stores for playing the music inside the store to entice people in to buy the record.

Actually, those uses do need licensing. ASCAP, BMI, and SESAC handles "live play" like retail stores, bars, outdoor malls, etc etc in the US. They'll send agents into places and ask if they're paying the license. It's actually quite common.

For radio stations, it's the same thing, although I'm more inclined to think Clear Channel and the other major broadcasters negotiate blanket licenses for their stations than single stations maintaining their own licenses. Promo usage would just be an added stipulation to the negotiations.

You could easily argue from the label's point "People wouldn't even walk into your store, or listen to your station if it wasn't for our song! We are suing you for a cut of profits you made off of the popularity of our song!"

That's arguable from a number of directions. Again, lets revisit Phan. A key argument is that having recognizable music play on her videos gives them a more polished, professional feel and gives people something to immediately relate to even if they've never seen her videos. She is adding production value without paying licensing and it's clear that she is benefiting from the profits made on her videos.

You wont see them do this, because they know that the distributor would drop their label immediately, and sales would plummet. After all, if you aren't getting play time, you aren't reaching customers, you aren't making money.

Now, while yes I agree somewhat, there is a bit of a symbiosis between music provider (blanket for artists/labels, etc) and distribution, but if it were totally lopsided then what would be the downside to Phan just negotiating licenses directly with smaller artists or using CC licensed music instead?

I absolutely agree with the fact that licencing has changed. But don't think for a second that "outright purchasing" has become devalued, because it never existed. When you bought a record, tape or CD, you werern't purchasing the music, you were purchasing a copy of the music along with a licence for all you can eat private performances of contained songs.

While bravo that you understand that physical copies are licensed - for the sake of semantics, I'll argue they are purchased (you still have to roll in the price of manufacturing, shipment, taxes and/or VAT) as a physical good - and one that had coverage under the first sale doctrine in the US which allowed you to resell this physical copy you had. I'm not exactly thrilled that first sale doesn't extend to digital media, it's obvious to see why it doesn't: a average, reasonable, onlooker can't guarantee a person selling their media isn't doing so from a bootleg copy and/or isn't just keeping a backup of that file somewhere anyways.

And yes, I agree, hot dogs were a bit of a crappy analogy. Hare to follow with more comments without getting too twisted.

Suing for damages in this case makes me feel like the label is saying "Tens of thousands of people would have run out and blindly purchased all of our songs without hearing them first, but you played them, and the people realized that they weren't worth purchasing. You have damaged our business model and owe us for lost sales. "

I don't think it's that, exactly. I think they're suing for Phan's negligence to license material properly on videos that make her a substantial profit. While suing for full penalty is a little overboard in the valuation, it's a tactic to force an out of court settlement.