Ultra Records and Ultra International Music Publishing are suing Michelle Phan for copyright infringement.
Michelle is one of YouTube’s most popular creators, and her channel has over 6.5 million subscribers. She worked her way up to these numbers by posting quality makeup tutorial videos. She’s basically become a household name for the makeup-using YouTubers of my generation (FYI, I’m 25).
Ultra says that Michelle illegally used their music in her makeup tutorials, and that the infringing videos were viewed over 150 million times. They also say they informed Michelle that she didn’t have a license to use the music, but she still continues to infringe.
The complaint specifically names Kaskade as one of the artists whose music was most-used by Michelle. This is pretty ironic, considering Kaskade wrote this statement on his blog last month:
“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.”
Ultra is seeking $150,000 for each song used, or unspecified damages.
If Ultra wins this case, it’ll mean that tens of millions of people who were exposed to their artists’ music will no longer be.
Michelle Phan has tremendous influence, and it would make much more sense for Ultra to try and form a partnership with her.
Nina Ulloa covers breaking news, tech, and more. Follow her on Twitter: @nine_u
I would assume the main problem here is that Phan’s team is claiming the videos as their IP instead of allowing Ultra to monetize them via ContentID?
No doubt Ultra crunched the numbers on this before filing the lawsuit. A super popular creator like Michelle Phan is likely making tons of money on direct deals with advertisers. More money going all the way than just making claims.
Indeed, as I point out that the YT Vlogger is making millions of dollars and using other artists music without compensation.
If a starving artist found out that their music was being used for a millionaires Vloggers videos, then I don’t see anything different between a claims lawsuit of a starving artist versus a major label.
Having some experience in family law, I’ve noticed that females tend to be given a free pass from any wrongdoing. Is this what is going on today with regards to her case?
One might wonder if the accused was a male, how much praises he will be given for using other peoples music to make money
u are f**ing scum, u r f**ing scum
Why is he scum? Why not actually make an intelligent rebuttal instead of an ad hominem attack on him for making a valid point? Is it because you’re a female, and you feel like because he mentioned that a female might have gotten special treatment, you took offense?
Grow up. Since when is it sexist to point out that somebody ELSE might be making judgments based on gender, huh? He’s not making ANY judgments on you, or females, so calm down please.
“the main problem here is that Phan’s team is claiming the videos as their IP instead of allowing Ultra to monetize them via ContentID”
Yes.
Nina and Kaskade are silly in their childish defense of criminals, but suing YouTubers for infringement don’t make any sense today.
It will, however, make sense in the near future when YouTube disables Content ID for indies and other parties that don’t sign Google’s new contract.
This leaves YouTube in the exact same situation that made the Viacom case necessary, and the results will be the same:
Massive lawsuits on a scale that can break any corporation — even Google.
However, another poster makes a good point:
All bets are off if Google allows her channel to bypass Content ID.
Then it’s obviously correct to sue her — and YouTube.
And that’s really interesting; especially because it’s a preview of what’s going to happen 24/7 when Google launches YouTube Music.
“Nina and Kaskade are silly in their childish defense of criminals”
& your childish defense of labels that are failing the industry?
Which labels would that be and where do I defend them?
Or do you acutally think that the indies ‘are failing the industry’?
I’m talking about the majors, like Sony.. who owns Ultra.
Not sure why I would I defend Ultra, they’re not under attack.
If she wants to use the music by ultra artists she can pay the license fees to do so.
Pathetic. They could have made serious money just by claiming the songs with ContentID…
…except Content ID seemed to be bypassed in her case.
Which makes it correct to sue her — and Google.
First of all, this suing is all childish games and acts. There is no point of suing her. Youtube has many accounts using different music. Everyone claims that it isn’t there music to begin with. What’s wrong using music for your intro? Or even during? Yeah her videos have tons of viewers each and everyday and she makes money off of it. But not because of the music, because of her talented skills and her beauty to appear on screen and inspire those who love the art of makeup. Music is just another ideal, a pause to create an emotion to get along with the video. So suing her for copy rights is wrong. Then why not go ahead and sue every youtube account that uses their music. I’m sure some of them did not buy it from itunes or amazon, did they? Like I said, if they are so jealous about the music that’s in her makeup tutorials just because of the money, they maybe they should start advertising and do something to attract young users, or even more make a youtube channel. All of this suing is childish and rubbish. They will automatically lose this case.
“They will automatically lose this case”
Here’s how it works: Phan is going to pay $150,000 per stolen song if she willfully ignored Ultra’s takedown notices.
But the interesting part is that YouTube is in serious trouble too if any of its employees were aware of the infringement.
And how could they not know?
…it should be added that it’s up to Ultra to decide if it wants maximum statutory damages per song ($150k/song), or if Phan’s profits (150m views = approx. $150-200k) would be enough…
Let’s talk about the real story here: Content ID does not work anymore! .
And that changes the entire music industry.
While Google made the world believe that all infringing UGC was monetized or removed, it allowed selected channels to bypass Content ID — and now YouTube even seems to ignore legitimate takedown notices when these channels use illegal content.
This makes YouTube a piracy site.
BTW, the maximum stat damages for willful infringement would be $150K per infringement. The infringement would be the unauthorized broadcast of the music synchronized with the image, not the placement of the music, therefore if willful infringement could be proved and the maximum stat damages are granted with no settlement, it would be:
150,000 (75K per copyright)
X
# of streams of the content
If the music doesn’t contribute to the value of the videos, why is she using it? She could leave them silent. Or, heaven forbid, try and make her own music. After all, we are constantly told how nowadays anyone can make professional quality music for nothing on their laptop. You can’t have it both ways: either she thinks the music is valuable, in which case she should pay for it, or she doesn’t, in which case she shouldn’t be using it.
One question for you bud. If the copyright infringer was a male, how different would your opinion be with regards to the case of using other people’s music to make money?
It does not matter if it was Ultras music or some homeless person’s music. The owners of the content must be given their share of royalties for someone using their music for commercial use.
As much as I see the dislike of major labels, music is a business, and if Ultra or Bart Simpson sues for alleged infringement and royalty losses, then that is the right way to go.
Correct. Because the infringer is a well-off woman making millions of dollars off other people’s content, she should not be given a free pass in the democratic USA.
I see that YT and Google can end up in a lawsuit for either failing to or allowing repeated incidences of intellectual property violations.
Extraordinary lack of knowledge from a so-called distributor.
Thanks for the nice comment.
I don’t know that specific case, reading other comments it seems like she’s going through a MCN that would prevent monetization from an external source.
If this is the case then Ultra might be “right”, however suing a successful YouTuber may not be the smartest move…
They could have contacted the MCN and expressed their concerns, the video would have been released by the MCN then it’d have allowed them to monetize via ContentID.
Maybe they did, and maybe their messages/letters or whatever were simply ignored (knowing how MCNs behave I wouldn’t be surprised), then yes the only solution to resolve this is to sue them.
Are there more details available? How come this wasn’t picked up by ContentID and flagged for UGC revenue for the content owner? Or set to takedown if their policy was set for blocking… That’s YouTube 101 stuff right there..
This story strikes me as odd for a couple of reasons. Before I get to those, to be fair to Kascade, I’m pretty sure he’s been critical of Ultra for not allowing his music to be freely used and shared. I’d be surprised if he was against Michelle or anyone else using his music for free. If he’s condoning the lawsuit, then, I agree, he’s being hypocritical and disingenuous in his position stated on his blog.
Now to the odd things–at least to me:
1. Prior to a suit, if Ultra was ignored by Michelle or her reps in their licensing request, why didn’t they just issue take down notices for the infringing videos? That certainly would have gotten Michelle’s and her MCN’s attention.
2. Being a big YouTube celebrity (who has a TV commercial) and member of a prominent MCN, I’d be shocked if Michelle or the MCN didn’t have attorneys who would have advised her of the potential infringement. I’m sure she also has a manager and the MCN has several employees who clear music for their videos. If none of these people anticipated a potential copyright infringement, they need to be replaced or augmented with professionals who understand music copyright.
I’d love to hear the entire story because this just doesn’t make sense.
Her channel is likely a ‘managed’ channel and not an ‘affiliate’ channel. Managed channels bypass CID as YouTube gives managed channels the benefit of the doubt that the uploader has licensed or been given permission to use the material in their videos.
If that’s the case, then it’s correct to sue her (and Youtube).
…and then it’s a huuuge story!
If Content ID happens to be dead for all practical purposes, it’s the beginning of the end for YouTube.
The ‘affiliate’ MCN channels have CID placing claims on their videos. Only ‘managed’ channels are exempt from this. Phan and her MCN have an agreement with YouTube that states they will not post any videos that contain unlicensed material. It could get messy for her with YouTube in addition to Ultra.
“It could get messy for her with YouTube in addition to Ultra”
That’s for sure.
But it could get really messy for YouTube as well — and fast — if it can be proved in court that any Google employee was aware of the infringement.
And what are the odds that Google didn’t know? Don’t you think Ultra complained directly to YouTube, too?
The answer to this question could be really, really simple. If Ultra also served Youtube/Google in their complaint, and it was received properly, then Google knew of the infringement and would be required by law to remove it under DMCA guidelines.
“If Ultra also served Youtube/Google in their complaint, and it was received properly, then Google knew of the infringement“
Yes, and we all know what that means.
Nina, I don’t think it’s quite fair to say that Ultra would be better off forming a partnership with Michelle Phan when she, or her people, didn’t see any value in doing so before they chose to infringe. They put the label/publisher in the position of either suing, or consenting to some kind of deal, when they were never given the choice to not participate at all. Reminds me of the Goldiblox/Beastie Boys thing a few months ago. In my opinion, way too much of that narrative was about what a good message the company was promoting with the use of the song, rather than being about whether the songwriters were actually entitled to any say in how their music is used.
sure, they’re entitled to make decisions that i think are dumb.
but just wait for the followup story…
Ultra is in the right. Of course, they could have first contacted Phan for a settlement and agreement before suing. However, it sounds like they did contact Phan and received no response, so that was a dead end. Regardless, the lawsuit and obtaining compensation for damages is fully justified.
But here’s the interesting part:
What did Google know?
How likely is it that Ultra complained to Phan, but not to YouTube? Nobody sues people without sending DMCA takedowns first, and most content owners would definitely send notices to Phan and YouTube.
This is really important! All hell breaks loose if any YouTube employee were aware of a complaint but ignored it. That’s the stuff MegaUpload and Napster shut-downs are made of…
Google knows. They own the platform.
“Google knows”
Sure? That would be the of YouTube.
Right, as I mentioned earlier, if YouTube was served by Ultra’s attorneys, then of course they knew. And, would be required under DMCA law to remove the content.
As to Nina’s earlier point regarding the upsides of exposure, I think that principle holds for music that is lesser known. Better known, more famous content from well-known artists should be treated differently — people are already familiar and don’t need to be ‘exposed’ again. At that stage, the value equation changes — and the rights owner is justified and using good business sense to charge.
“Better known, more famous content from well-known artists should be treated differently — people are already familiar and don’t need to be ‘exposed’ again”
True.
But I think that everybody — unknown artists as well as stars — should be able to choose whether they want to be used commercially by companies like YouTube.
completely true. i’m just questioning whether ultra’s decision is what’s best for their artists.
“completely true”
But in this case, artists are not able to choose:
1) Google and Phan did not ask for permission.
2) Google and Phan did not remove the illegal content when asked to by representatives for the artists.
That’s illegal.
If you were a reporter, you would want to know:
a) How often does this happen?
b) How many white-listed channels bypass Content ID?
c) How many of these white-listed channels use illegal content commercially?
d) Are these channels systematically ignoring takedown notices?
e) How long has this been going on?
f) What did Google know?
g) When did Google know?
h) How could YouTube avoid getting caught?
i) What will happen now?
Bud don’t waste energy on the blind supporters. Let Ultra take care of this matter. If you’ve ever heard the term “white knighting” you’d see it in many of the comments which support the accused.
I have a slightly less sinister hypothesis about Phan (or her people’s) motives. I think there is a rather widespread assumption that almost any use of music on YouTube counts as ‘fair use’ under US copyright law. Indeed, they could find some support from Larry Lessig, who apparently thinks that the use of music as backing for a dance performance is ‘self-evidently fair use’ – at least if the dancer is a toddler. Or GoldieBlox, who used a wide range of music as background to their video ads, without the excuse of ‘parody’ which they dreamed up to defend the Beastie Boys case. Ms Phan made no attempt to hide the use of Kascade’s music – indeed, in the example I looked at Kascade are actually listed in the video credits, with a link to iTunes! So I think the likelihood is that it just didn’t occur to Phan or her team that they were doing anything wrong. After all, who could possibly object when they are getting ‘exposure’? The possibility that people might object to having their music associated with Ms Phan’s ghastly videos assuredly will not have crossed their minds.
Perhaps you are right and this speaks to the freewheeling nature of so much of what is on YouTube (and a big reason content id was created), but a major YouTube star who is pulling in perhaps millions of dollars a year doesn’t have the luxury it saying “I didn’t know”.
“So I think the likelihood is that it just didn’t occur to Phan or her team that they were doing anything wrong”
Ultra said they informed her that she didn’t have a license, and that didn’t stop her.
At any rate, if Google bypassed Content ID on her channel they might want to sue Google instead. And that would be the most interesting story in a long time.
Again no one gets the point…shes white, nobody sues black people over this…
I think you may need an eye test.
She’s Asian, not White.
I see what you’re leading readers to….perpetrate the victim status of upper class white females, but subtly provoking racism against minority women.
I study Family Law so nice try pal.
ACCORDING TO BILLBOARD she made $5 last year from videos such as these.
BILLBOARD STORY: http://www.billboard.com/biz/articles/news/legal-and-management/6165331/ultra-records-lawsuit-michelle-phan
“she made $5 last year from videos such as these”
You forgot the M. 🙂 And yes, there’s a lot of money in infringement — just ask Google.
Here’s what we need to know now:
1) Was YouTube really unaware of this?
2) How many similar cases are there? How many YT channels bypass Content ID, and how is Google responding to infringement complaints over these channels?
…and bear in mind that each song is worth $150,000.
In other words, there’s a lot at stake. So all content owners should now make sure that YouTube doesn’t steal their property.
Most artists assume that Content ID automatically monetizes or removes their content, but that is no longer the case. YouTube is back where it started…
Thanks for catching that. Yes I forgot the M.
I get the feeling we are missing a tons of information on this..
for instance.. Was the Content ID on this or not?
who is getting the monetization for the video?
IE: IF the music was detected, then for the audio not to be blanked it was monetized for the artist.. Unless she “claimed” she had full rights (IE: she disputed it)
What would be nice if Nina would look into some more information and update the article..
“What would be nice if Nina would look into some more information and update the article”
Why would she do that? It would be seriously hard to find a pro-piracy angle.
But you’re absolutely right, there’s a fantastic story buried here — and somebody needs to tell it.
I’d like to find out how much Ultra spends on promo vs. how much they’re going to spend on this case
Um, I’m afraid you don’t make any sense…
Anyway, let’s get back on track:
1) Is Content ID already dead for all practical purposes?
2) Has Google tricked the entire industry into believing that content is either monetized or removed via Content ID, while it in fact turned YouTube into the piracy site it was prior to the Viacom case?
3) When did Google know what about Phan’s infringement? This is crucial. If Google was aware of the infringement but failed to act on it, it could kill YouTube.
You really seem excited to see the fall of YouTube.
No, I think it’s tragic.
YouTube’s head of music is now leaving too — and nobody seems to replace him — according to the Wall Street Journal today.
So YouTube Music Pass is now officially dead.
Quote “I’d like to find out how much Ultra spends on promo vs. how much they’re going to spend on this case”
Protecting their copyright is always going to be a huge priority for ANY business..
The
REAL News Story is
Why wasnt the content ID being used? (effectively paying the artist)
How many times is this happening?
Was the music “flagged” by youtube in the first place?
“How many times is this happening?”
Yes, that’s the question.
That and this: What did Google know and when?
That’s because this is an opinion piece masquerading as a news article. Here’s the actual news:
No more information in the “official” news article then what Nina had..
are you new here?
Its 5 million: It’s no secret that Phan makes serious cash from her vlog, with some magazines and news outlets reporting she made upwards of $5 million in 2013.
But the commentors who support the accused don’t get the point. Just because she is a female model, she should NOT be given a free pass in the legal system.
$5 Milly in 2013 off those videos? wow… Once again further information and evidence that suggests music is not for making creators money but only for making a lot of other people money… awesome!
The original source said it was from endorsement deals..
http://www.cosmopolitan.com/style-beauty/beauty/how-to/a16610/beauty-vloggers/
Which makes sense..
We know that youtube doesnt pay out that much..
She used music in the background in some of her videos. Big mistake. Now she’s gonna go to jail!
I think its BS that they are saying she’s profiting off their music like people actually go to her channel to hear music playing low in the background. I know a few tubers who don’t have a license for the music they play in their videos but I guess cause they aren’t rich it doesn’t matter.
Well, if Ms Phan didn’t think the music was enhancing her videos, and thus increasing their commercial value, she wouldn’t have used it, would she? Do you suppose she was using the music as an act of charity?
Quote “I think its BS that they are saying she’s profiting off their music like people actually go to her channel to hear music playing low in the background.”
Wow!
either your a troll, or REALLY new here..
.
Your fellow tubers probably already have their videos monetized by the rightsholder for that music…especially if it’s own by a major label. Songs are “fingerprinted” and a computer scans for that song and puts a claim on it. If your friends don’t have that song monetized its either because A: that song is not in the system, or B: the song has not been found yet. It doesn’t matter if people are listening to the song or not. Imagine you are in a band and you hear your song in a video. You can legally get a piece of that videos revenue IF you have a claim on it. Without the claim, you can’t get any piece of the action.
The only thing that shocks me about this story is the fact that she has mad $5M off these makeup videos. I had no idea that kind of money was possible from an indie and not a big company. Is all this coming to an end once You Tube makes those big changes in the future? And by the way, has any viewer ever commented to her, “I just come here for the music”?
“has any viewer ever commented to her, “I just come here for the music”?”
Who knows, but many would stay away without it.
Music is incredibly valuable to the tech industry. Take it away, and YouTube is dead.
endorsement deals
all i wanna said is that if you are a music maker and you do not want your music to go on to another person. DO NOT sell ur music to anyone. What wrong with people use your music? What if your music is nameless and that one person use your music for their video and her fans like it and ask for music name. Is that wrong too? or you will be happy because she help get other people to know your music?
There are ton of people using music from other music maker in youtube, if you do not like the way people use your music. Just dont never put your music into the world. When read this whole story on the sue, i just got feeling that those music maker are poor of money maker and want other money. Why not ask her to stop it when she starting youtube and why right now? because she making $$ and you guy got jealousy?
I disagree. Musicians have their legal right to claim for royalties for alleged Intellectual property infringement. Why should musicians spend tens of thousands of dollars to produce an album, only for it to end up making someone else coin without an agreement?
The other issue is whether the outcry against Ultra would be different,say if the accused was male YT Vlogger.
There’s a difference between what should be a sync and sharing/streaming/whatever. You want to play my bands’ music, cool, the more ears the better. You specifically want to sync my bands’ music to improve your video/whatever, you’re going to have to pay, unless you asked first and we decided it was worth it.
There’s always been that difference, so not sure why it’s being ignored to try and prove a point.
The legal technicalities are being ignored because the accused is a model. And in misandric countries like the USA and Canada, these types of females are given a free pass in the justice system.
Never knew that they can also be allowed to infringe on others intellectual property, rake in millions and still claim victim status?
Wow this society amazes me.
Talking about the commenters/article on here, not Phan.
According to a BBC report, Phan’s company are now claiming that they had permission from Ultra to use the music. If they have it in writing, that settles the matter. If they don’t, more fool them: it is essential to get this kind of thing recorded in writing.
Like, ultra will be that stupid to spend thousands of dollars in attorney fees to break a licensing contract. Even so, some speculate that the ContentID system was bypassed, so the appropriate royalties were not paid.
In profeminist countries like USA, Canada and Sweden, the legal system might give the accused a free pass. The majority of men who endorse the actions of the accused are thinking with the wrong head so to speak.
The possible outcome of the trial
1) Accused gets let off with a minimal fine and/or a warning
2) Her supporters might file a petition to exclude her from the law, leading to point 1.
That’s the probable outcome.
The impartial outcome would be;
The accused will have to cover court costs, outstanding royalties & licensing fees, fines and desist from using other peoples music in her videos. Possible lawsuit against YT and Google for failing to abide by California intellectual property laws.
But based on the comments sections, the probable outcome might occur.
“The accused will have to cover court costs, outstanding royalties & licensing fees, fines and desist from using other peoples music in her videos. Possible lawsuit against YT and Google for failing to abide by California intellectual property laws.”
I think a variation of this scenario is the most likely outcome.
But let’s see. Either she has a written permission from Ultra to use the songs commercially — or she doesn’t.
dont talk to that f**ing sexist scum
Do anyone here knows the law school where Miguel is studying? The dean of his law school needs to read his misogynist comments!
What is the process to obtain the email addresses and I.P addresses of Miguel, that scum needs to be taught a lesson.
Sounds to me like Migeul and most of the people agreeing with him are just bitter losers who couldn’t get laid and are, for some reason, blaming the women in Can and USA for their failures.
Michelle is helping these artists. She always mentions the names of the songs and the artists in every video she makes so its not like she purposely trying to steal their songs! I hope that ultra loses millions of people who listen to their artists music be michelle is helping them!