Did Taylor Swift Break Copyright Law?

Taylor Swift: Did She Violate Copyright Law?

I took a lot of heat for claiming that UMG (and the bunch) should not be trying to get Facebook to license their music in the manner they are doing it.

People (incorrectly) claimed that I don’t want songwriters to get paid from Facebook. Not true.

+Facebook is Aggressively Ripping Down Cover Videos

For the record, Facebook should pay for the use of songs on the platform.  And songwriters should be compensated for this.  The problem is, Facebook is not battling with songwriters for licenses and payment splits.  Facebook is battling with major publishers – who are, of course, looking out for their own best interests (not their songwriters’).

Don’t believe me?  Then why are so many songwriters suing their publishing companies for unreported (or underreported) revenue?  And why are major publishers demanding upfront advances from Facebook (like they did with YouTube) that never get passed down to their songwriters?

Why are the majors so damn opaque with their reporting and accounting practices with their writers?  If you have nothing to hide, then be transparent!

+It’s Time To Completely Rethink How Songwriters Get Paid

I full-heartedly believe that Facebook (and every platform) should license and pay for the use of music.

However, there are more ethical ways to do this other than bowing down to major publishers and labels’ demands just because they hold the market share (leaving artists and songwriters out in the cold).  The reason streaming rates are pathetically low is because we left it up to the majors to negotiate the rates.

They made out just fine. Artists and songwriters? Not so much.

That being said, Taylor Swift has been revered by the music industry as an “artist advocate” for getting Apple to pay royalties for Apple Music’s streaming trial period (even though WHAT they’re paying is next to nothing).  And, for ‘practicing what she preaches’ for removing her music from Spotify.  But, back in November 2014, in celebration of her album 1989 breaking sales records, Taylor Swift posted a video of her in her car lip syncing to Kendrick Lamar’s song “Backseat Freestyle.”

Legally, Taylor should have contacted the publisher(s) of “Backseat Freestyle” and negotiated a synch license and contacted the label (Interscope) and negotiated a master use license.  There’s no minimum usage requirement for a synch license.  The law doesn’t say you only need a synch license if the video is at least 15 seconds or anything like that.  Because, if there was, commercials could get away with using any song they pleased for their 15 second commercial spot.  They don’t.  In reality, they sometimes pay 5 or 6 figures to use music in their commercials.  A synch/master use license is negotiated and the usage of the song is taken into consideration during negotiations.

This all being said, it’s hard to believe that Taylor Swift’s people went through all the trouble to properly license this song for her 10 second lip sync video.  Because, it seems absurd that you would need to.  That’s just common sense, ain’t it?

Why haven’t the rights owners demanded Facebook remove Taylor’s infringing video?

It has nearly 10 million views.  Talk about infringement!  Taylor could have afforded a synch license.  But that would have defeated the purpose of her video which was meant to capture a mood, in the moment and upload it immediately.

You’re telling me Taylor Swift is ignorant to how synch licensing works?  That Taylor Swift doesn’t care about intellectual property?  That goes against what she stood for.  Well maybe, the rights owners of “Backseat Freestyle” aren’t asking Facebook to remove this because they realize it’s helping their song.  Just like fan-created videos for Adele’s song “Hello” helped make it (and her album 25) a success.

+Unauthorized Facebook Videos Help Sell More Music, Study Shows

Most artists, hobbiest musicians and fans don’t understand copyright law.  They don’t know what’s legal and not.  The Dulcimer playing dad would have never reached worldwide fame with his Tears for Fears Facebook cover video (which got 84 million views) had Facebook ripped this down the moment it was put up.  I guarantee he didn’t intend to break the law when he posted his fan video.  Most indie artists didn’t realize they were breaking the law posting their cover videos (until Facebook removed it and locked them out of their accounts).

The law is complicated and, frankly, doesn’t make sense in the world in which we live currently.  That’s why the US Copyright Office came out with a 246 page document recommending the law be updated.

But Taylor Swift knows better. This is her profession. And she fought to uphold ‘intellectual property rights.’

Is Taylor Swift a hypocrite?

You’re either saying that:

A) She didn’t know this was illegal (ignorance)

B) Didn’t care it was illegal and went ahead with it (hypocrisy)

C) She thinks this kind of video should fall into a completely separate category for which the laws do not currently cover.

Pretty much every reasonable person would choose C.

So when people scream at me for taking the position that Facebook (and publishers) should allow indie artists’ cover videos to stay up (versus making Facebook rip them down and lock these artists out of their accounts – in effect damaging their careers), I say to them, step back and take a look at your poster child for a second.

We need a new kind of license specifically for these “mass-synch” platforms like Facebook, Instagram, YouTube, Musical.ly, YouNow, and the bunch.

There needs to be an organization (maybe the PROs could get into this game) that not only enables mass-synch licensing, and tracks all mass-synch placements, but gets the platform to pay on each song placed and then 50% of the money goes DIRECTLY to the songwriter and 50% goes DIRECTLY to the publisher.  Get another organization that tracks sound recordings (maybe SoundExchange could get on this) and similarly pay 50% DIRECTLY to the artists and 50% DIRECTLY to the label.

David Israelite (president and CEO of National Music Publishers Association) wrote an op-ed for Billboard defending publishers and exclaiming that Facebook wasn’t being fair to songwriters.  I respect him and his position, but, guess what, PUBLISHERS aren’t being fair to songwriters.  That’s why so many are suing their publishers and ditching them altogether for organizations that are fair and transparent.

Publishing companies have always had (and still have) unfairly opaque accounting practices.

If a songwriter asks to see where their money comes from, the publishing company, without hesitation, should be able to point them to an online portal where they can look it up quickly and easily.  Not handed 2,000 sheets of paper with reports that make absolutely no sense and then charged for an audit.

So, yes, I take offense when the old music business yells at me saying I’m not looking out for songwriters’ rights when that’s all I’m doing.  I don’t believe major publishers have the songwriters’ best interests at hand.  History, unfortunately, shows this.  So, when you tell me I should shut up and just trust the industry to do what it does best, fight (a losing battle) with “Big Tech,” without getting creative, coming up with alternative solutions or innovating whatsoever, I’m not going to sit back complacently and say, ‘yeah, you’re right, you know best, like always.’

Should Big Tech pay for music?  YES.  But I don’t agree with the way the major publishers and labels are going about it.

And clearly, neither does Taylor Swift.  Otherwise she wouldn’t have posted an illegal, unauthorized video of blatant copyright infringement.

 

Ari Herstand is the author of How To Make It in the New Music Business, a Los Angeles based singer/songwriter and the creator of the music biz advice blog, Ari’s Take. Follow him on Twitter: @aristake

How To Make It In The New Music Business by Ari Herstand

17 Responses

  1. Anonymous

    It would be great if the PROs could get in on this. That said, I’m not sure if the consent decrees allow ASCAP and BMI to license anything other than performance rights. And as we’ve all seen recently, getting the government to change those consent decrees is a bit of an uphill battle. Any other ideas?

    Reply
  2. Gospel

    This is such a great, level-headed article. I really appreciate Ari for raising such valid points on behalf of the indie musician while pointing out areas where the industry can get better.

    Reply
  3. Musicservices4less

    Wow, it took Ari this long to figure out why Youtube (Google) and facebook, fights so hard against the music publishing industry and the record industry? This is what it is all about, not wanting to employ actual people to do what the law currently says you MUST do. Because if all those companies followed the law, they can never, ever be profitable. So those companies say “I am bigger, stronger and have more political lobbying (and former employees) in Washington than the major music publishers and record companies combined on the respective sides, so music and records go fu#k yourselves.

    Reply
    • James the Less

      In these conversations there often seems to be a missing perspective; the truth about music is that rights are not the product. rights are a included in the product, but the product is actually intangible. And before you write me off as a hippy or what have you, look at Ari’s perspective on what T.Swift is actually doing with her cover video. “was meant to capture a mood”, which is not the same thing as composition and master recording. The real product in the eyes of the consumer is that idea, so when we argue about how to make our ‘product’ profitable, we are arguing in a closed loop about making money off of something that isn’t even our product. Which is why John Q Public doesn’t give a damn about our rights and will constantly view us as the bad guy. Because when the product is emotion, its consumption is emotional. And all our arcane attempts at applying a monetizing architecture onto it are useless and will continue to be until we agree what we’re selling.

      Reply
      • Eric John Kaiser

        Great perspective James. I never thought about looking at things from that angle.

        Reply
    • Anonymous

      Better late than never. Ari now seems to have a much better grasp on the issues than his previous articles. This is excellent work Ari.

      Reply
    • What?

      Yes, Musicservices4less.

      It’s pretty clear that, Google, with only $530 BILLION in market cap, and $85 BILLION in CASH (virtually all of it from search and advertising) and Facebook, with only $350 BILLION in market cap, and $60 BILLION in CASH (virtually all of it from advertising, they don’t even have a music service, to speak of), if they were to employ some actual people to do mechanical licensing, they could “never, ever be profitable.”

      Yeeeaaaaaaaaaahhhhhhhhh…..

      Reply
  4. Eric John Kaiser

    Great article Ari! Thanks for standing up for indie artists. As always.
    What gets me worried is that more more and people seem to be moving towards the streaming model and listening to music that way. And those streaming platforms need content that is already well known to the general public to keep their subscribers or attract new ones. To do that they have to negotiate with major record labels which have the catalog and the upper hand… So in a way aren’t we heading back towards another gate keeper model which existed pre-napster and pre-internet where major record labels control the relationship between the listeners and the artists ? Wait and see I guess…

    Reply
  5. Anon and On

    This is from Eric Sarafin, not me:

    [content removed based on DMCA takedown notice]

    Reply
    • Bitchslap

      Eric “Mixerman” Sarafin should stick to writing crappy novels about mid-level bands he doesn’t like working with. His screed here is full of innacuracies.

      “Songwriters have no legal recourse with FB.”

      Um,…. For copyright infringement? No recourse?

      “Then, somehow, Ari suggests that Taylor Swift–a superstar who could break a record just by mentioning it–is somehow in the wrong for posting a clip of herself singing Kendrick Lamar’s song “Backseat Freestyle.””

      Setting aside the assumption that Kendrick Lamar gave TS permission, as you did, then yes, Taylor Swift is – technically – “in the wrong” for posting an unauthorized cover.

      “I might point out, that Taylor Swift didn’t write the DMCA law…”

      MM might also “point out” that neither Facebook, nor Google write the DMCA, either. Indeed, the folks MOST responsible for it (beyond the actual Congress that drafted it)are the record labels and music publishers! They were the ones that asked for it, initially, and agreed to it, as drafted.

      “What makes Ari’s entire argument laughable, is the fact that somehow a “cover” video of Taylor Swift singing a Kendrick Lamar song, is the equivalent of a 15 year old unknown singer performing a cover of a Taylor Swift song.”

      Sarafin is too stupid to understand that the point Ari is making is that while he DOES understand the “practical” difference, the fact is that, legally, it IS PRECISELY EQUIVALENT!! Infringement is infringement. Full stop.

      Stars don’t get to claim some “less infringement,” because of their star power, moron.

      This goes to the ENTIRE point of Ari’s first article which , not surprisingly, Sarafin is too dense to understand. Ari has always acknowledged the LEGAL right of UMPG and others to pursue Facebook (or its users) for infringement, but questioned the PRACTICAL wisdom of doing so.

      Reply
      • Mixerman

        Ahhahahaha! Hi Ari!

        I’ll be filing a DMCA takedown notice Monday morning first thing. I didn’t give permission for you to post my words. If I wanted to respond here, I would have done it myself. You guys can come to my turf to respond and in your real names, rather than hiding behind anonymous names. I mean, theres really only one reason to allow anonymous posters. It’s so you can respond to yourselves, wink, wink.

        Anyway, I’m excited to demonstrate to everyone just how to perform a DMCA takedown.

        Enjoy,

        Mixerman

        Reply
      • Bitchslap

        Ha! No, not Ari. Not even on the same coast as him. But, nice paranoia-driven guess, …I guess.

        The irony is not at all lost on us, that a guy who posts regularly on various audio forums where virtually no one, least of all his friends and supporters, use anything other than adopted screen names – the guy who scurried around behind the pseudonym “Mixerman” for years, fabricating each and every names and place in his month’s long fictional screed, until he was outed – NOW wants to suggest that: “You guys can come to my turf to respond and in your real names, rather than hiding behind anonymous names. I mean, theres really only one reason to allow anonymous posters. It’s so you can respond to yourselves, wink, wink.”

        Oh, that is sooooooooooo sweeeeeeet!

        Anyway…

        I noticed that your sarcastic DMCA threat-response is utterly devoid of ANY response to even one of the points brought up undermining your original message.

        Nothing on your claim that songwriters have “no legal recourse” with FB.?

        Nothing on the technicality that, regardless of her fame, Taylor Swift is – legally – “in the wrong” for posting an unauthorized cover.

        Did you want to clarify that neither Taylor Swift – NOR Facebook – wrote the DMCA?

        No response to the observation that he point Ari was making is that while he DOES understand the “practical” difference between a nobody and Taylor Swift posting an unauthorized cover, they are both, legally, entirely equivalent?

        That Ari has always acknowledged the LEGAL right of UMPG and others to pursue Facebook (or its users) for infringement, but all he did was question the PRACTICAL wisdom of doing so?

        Nothing?

        Go back to your cave, where you bravely refer Pro-tools as “alsihad” (?)

        Reply
  6. JR

    The only way mass licenses across platforms will carry the day is when the platforms have no other choice. That means the only weapon to get platforms in line is take down notices, no one will volunteer to do any of the things that are “right” and “honest” Google has been circling the tracking and payment aspects of copyrights and truth be told will do a better job than any of the PROs if they decide to jump into the game. To realize how deep the problem is, you need to look at non music events at Facebook to realize that they lied about their video views and their ad platforms cannot be audited. Attribution is a term you should familiarize yourselves with to understand the role of music and pop content in the advertising food chain. With WPP ‘s purchase of Triad Media, we see another giant become even bigger and yes all of that is relevant to music (internal auditing is not your friend) . While no man may be an island, every giant media corp wants to be a continent unto itself and they are all going for that status. Facebook will need to do what Youtube did, but FB does not want to be audited by anyone. Taking them to court is the only way a public company can be forced into action, in these cases it will not be the indie musician but the Majors who will dictate the settlement terms and the PRO s will get their crumbs as they fear the day Google will put them out of business and the musicians will continue to get as little as possible.

    Reply
  7. Peter Hollens

    Keep fighting the good fight Ari.

    You are in the right, and time will prove you correct. People hate change…. and those who won’t will fail.

    Innovate or rollover and …..

    Reply
  8. Anonymous

    It’s probably fair to think that the bigger publishers prioritize their own interests before the interests of their clients. That’s true of just about any company these days. The advances UMPG is probably demanding of FB don’t really serve any benefit to their songwriters. Major publishers demand it because they can, and I doubt they are under any contractual agreement with their songwriters to share any of that advance money.

    I think the most significant example of this was the NMPA Spotify settlement. That settlement was great for NMPA publisher members, in that they ultimately will end up with a bunch of black box royalties that isn’t really theirs, and it keeps Spotify, one of their big sources of income these days, from getting sued out of existence (or at the very least delays that a bit). The deal was HORRIBLE for the indie songwriting community though. It means their money is going to someone else. I would rather publishers and songwriters get paid what they’re actually owed, however long it takes to figure that out, rather than some market share-based solution.

    That said, I do think that more often than not, the interests of the publishers more or less aligns with the interests of the songwriters. Publishers do want their songwriters to get paid all the money they are owed. Songwriters can always take their catalogs to other publishers when the term of their deals expires, and I would think publishers would rather not lose those songwriter clients (or get sued). UMPG is leading the charge to get Facebook licensed. It will benefit UMPG of course, but ultimately, when other publishers and songwriters follow suit, it has the potential to benefit songwriters as well.

    Ari is right about one thing. We do need a solution to mass license and pay royalties for all the publishing rights to this music. The problem is that this is a sync use, which falls outside the purview of the PROs (which only license performance rights, and are unable to license sync due to consent decrees) the compulsory license (which only licenses mechanical rights), and SoundExchange (which only licenses recordings). That means the only way to license sync rights is to get all the publishers to enter into a voluntary license. However, the vast majority will decline, or more likely, simply ignore the request. It’s too little money for them to spend resources reviewing and negotiating a deal.

    I wish there was a good market-based solution, but ultimately, the government probably has to get involved. They should give the PROs the ability to license this type of use, allow it to be licensed under compulsory, or designate some new company to administer these rights en masse. There’s got to be a better way to do this than what we have now. DMCA safe harbor just isn’t going to cut it.

    Reply
  9. DavidB

    First, contrary to some of the comments, this is not a ‘cover version’, as Taylor Swift is not singing, as far as I can tell. Using a piece of music in the background of a video is something that in principle probably requires a synch licence, as I think is correctly stated in Ari’s article. But if challenged, I imagine that Taylor, or whoever actually posted the clip, would have a plausible argument for ‘fair use’. In that respect it is not unlike the notorious ‘dancing baby’ case.

    Reply

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