Ari Herstand: you’re dead wrong about Facebook.
The following post comes from Matt Thompson, president and CEO of micro-licensing platform Songfreedom.
After reading Ari Herstand’s tirade against Universal Music Publishing Group (and other rights owners by association) several thoughts came to mind. In fact, many of those same thoughts have been voiced by several others in the comment threads following that article.
While Ari is typically a great advocate for artists, he has this one wrong and just plain backwards.
+ Ari Herstand: ‘Facebook Is Aggressively Ripping Down Cover Videos (Thanks to the Idiots At Universal Music Publishing Group)‘
1. At what point is it “ok” for artists to use another artist’s work without payment or permission to promote their own career?
When is it ok to use anyone else’s property, be it physical or an intangible trademark/copyright without payment and/or permission for anything? Is there some sort of unwritten rule that says once an artist begins earning over X amount of dollars that everything they have is just fair game for the betterment of others?
While I’m sure Uncle Bernie would love this concept, there should probably be some hard rules in place so rights owners know what to expect. What is the amount a song, writer, or publisher has to earn for it to be acceptable to steal from them? $3 million, $300,000, $30,000? If this is going to be a thing, then someone needs to establish some ground rules so artists know what to expect in their careers.
2. No one is suing fans.
They are removing infringing content from an infringing platform. To suggest that this is equal to suing grandmas and tweens is extremely dramatic and outright ridiculous.
3. The argument that these videos are helping the writers of these songs through promotion alone is so very old and tired.
How is this different from a club owner asking you to perform for free because it will be great for your exposure? You should absolutely have the right to say no, as should these artists and rights owners that have not given consent of any sort. Do you really think that DNCE or any other major artist has realized a significant impact on their following because another artist posting a video of her cover version of the song?
Can we please stop pretending that big artists are seeing a benefit from this sort of thing?
I wonder what percentage of Katy Perry’s fans started following her and going to her concerts because 3,000 different artists posted covers on their YouTube channels. It’s more likely that her fans discovered her music because of HER performance. These covers benefit the artist covering them because the recognizability of the songs they are covering increases fan interest and engagement. There’s absolutely nothing wrong with this, if it wasn’t completely infringing on others copyrights.
4. Why are these indie artists posting directly onto Facebook rather than YouTube?
It’s most likely about fan engagement and metrics from FB’s algorithm giving preference to videos uploaded directly versus embedded videos. So it’s all about promoting themselves. Normally that would be great. But unfortunately, Facebook has seemingly decided that they should be allowed to serve up years with of video content without paying rights owners that help make the content interesting or possibly even worth posting.
If artists want to be left alone AND support other artists, then they should want to post their cover videos on YouTube until Facebook decides to come to the table with a solution. Do these artists really just want to take from other artists and give nothing back? I seriously doubt it if they knew what was really happening.
5. As far as the economics are concerned, let’s check the math and the logic.
Using YoutTube earnings of only $0.001 per play would definitely be at the lower end (the average being closer to $0.003). But I suppose using a negative extreme illustrates a point and better supports a myopic agenda. But if we are going to use small math then we can’t say that UMPG (since the attack is focused mainly on them) is earning $0.91 from an iTunes download. Last I knew, publishers only got about 9 cents on the dollar with these downloads.
As far as that even happening or them earning anything on Spotify, we have to assume that an artist covering a song somehow translates to creating a new fan for the original artist. Which will then carry over to a paying platform, versus the free platform where they discovered the cover version of the song. Of course if the covering artist wants to monetize the video themselves on YouTube, then WeAreTheHits is the only legitimate way to do that.
6. For half a second in Ari’s article, the blame was put in the right place, Facebook.
Yes, Facebook should create a YouTube type environment. Yes, they should implement a great service like WeAreTheHits. And yes, them choosing to not do this negatively impacts the writers and artists wanting to cover songs. But why does someone like David Benjamin have to “explain himself”? He is the SVP of Anti-piracy and Facebook is consistently hosting infringing content, seems pretty self-explanatory. In this case it is not “shortsightedness and complete inability to navigate the new music business” by labels and publishers. This is a multi-billion dollar company that doesn’t want to upset the apple cart with their users and risk having to take money out of their own pockets to actually pay for something that belongs to someone else.
**Read Ari’s response: Old Music Business Is Yelling at New Music Business Again
Bottom line? Facebook is at fault here and artists have no right to do whatever they feel like wherever they feel like it with another artist’s work, no matter how entitled you may feel. Do it the right way, or don’t do it at all.
I would suggest visits to ASCAP, BMI and SESAC to determine just how artists are compensated from streaming and social services. Facebook likely tears down the covers because the artists have not registered with these sites to perform “covers” of the music they are gaining exposure from. Facebook currently does not have the licensing platform in place to control “theft” of a musicians work like You Tube does. Even in a night club setting as you suggest, the club owner and or the performer should be submitting their set-lists to one of the above named agencies to ensure all licensing requirements are met and financial agreements satisfied for use of any song.
I myself often ignore an artist that wants to post “covers” as a use to get famous, I seek out those with original work and content, if they then perform a cover tune adding their own quality to it or “making it their own” as they say that is different. I commend You Tube & Facebook for implementing such practices to protect and credit the appropriate artists for their work. There are outlets such as SoundCloud that allow such things, but given the major contribution factors that have been realized by the governing agencies in the last few years do not be surprised to see more illegitimate uploads monitored and removed. As an aspiring artist it is your job to learn the business side of your endeavors.
Great post, Matt!
I think this fails to deal with the basic thrust of Ari Herstand’s post which is that indiscriminate ripping down of cover videos will not actually achieve a constructive end. The post never to my reading claimed that there was no legal basis to the action, it questioned the tactical and strategic wisdom of that for the music producers long term well being. I will postulate that the ideal end point is Facebook setting up a licensing system that will be basically invisible to its users while ensuring artists get their due compensation. The contention of Herstand’s post seems to be that the apparent indiscriminate take down of cover videos from Facebook is wholly ineffective in achieving that ideal outcome, that it is heavy handed and so makes the Facebook users prejudiced against UMPG and so ill disposed to a licensing scheme and so makes setting up a licensing scheme less likely and so works against the long term interests of all involved. Nothing you have said seems really directed at that point and so nothing you said makes me think that assessment is wrong and if that is true then UMPG and David Benjamin are being tactically and strategically stupid even if they have managed to be legally and technically correct.
What other tactics or strategy might work better? A discriminate take down of cover videos maybe? If they went after videos with lots of views (tens of thousands, millions etc) first might have better effect, I take that as implicit in Herstand’s use of a video with only a few hundred views as the exemplar of the problem.
Also direct negotiation with Facebook before doing this would be smart. Now for all we know such negotiations are ongoing and this is simply UMPG doing a strike of sorts to put pressure on Facebook. Still a more discriminating strike might have been as effective in putting pressure on Facebook. As it is it looks like UMPG just launched this action with no other attempts to address the problem taken, this view may be unfair but it may still be incompetent not to recognize how the action will be judged.
You say no fan is being sued. True but if the take downs are indiscriminate enough it could easily be in the same ball park for insult. Just because they have the right say to request a take down a video of a 3 year old singing a pop song that has like 5 views and was put up by the parents so the grandparents could see it, that hardly means they should do it. In theory sure the artist is being denied their due and Facebook is REALLY to blame and so on, but the harm to the artist is so infinitesimal and the harm to the family that can’t see the cute video that caught a magic moment in life so tangible that making the take down request while legally valid comes across as officious, petty, heavy handed and in other words bad and that sticks to the rights owner as much as to Facebook.
You seem to be saying do what is technically correct and dam the consequences but that is just silly.
Allan, thank you for your thoughts. I’m sure there’s a perfect strategy out there in a world where Facebook cooperates. Maybe it would have been more fair of me to mention that labels and publishers have been trying to work things out with FB for a couple years now and that FB has expressed no interest in changing the status quo.
It would be amazing if FB would stop being greedy, unyielding, copyright infringers but there is no end in sight with that as an outcome. But in a world of gum drops and lolly pops I guess UMPG and others would have no need to take action. But back to the real world where it’s not ok to steal and video producers, indie artists, or soccer moms aren’t entitled to do whatever they want with someone’s else’s property.
I’ve seen this sort of entitlement for years and it’s so old and tired. There’s no PR backlash for the artist/writer or loss of fans or income because someone can’t steal from them anymore. Part of the premise of Ari’s article was that somehow artists like Lady Gaga, Ariana Grande, and others need people making their own videos using music that belongs to the artist/label/publisher. I guess I’ll sit back and watch ticket sales plummet for the next leg of the Coldplay tour because UMPG won’t let artists cover “Sky Full of Stars” on an infringing platform. Let’s circle back in a few months once their ticket sales roll in so we can properly assess the PR fallout from this “stupid” strategy of not wanting to get steamrolled by a $200B+ tech company.
Well I am glad we have uncovered one massive hidden premise in your argument (that this is not indeed the first or only tactic of UMPG in this).
It is still hard to decipher your argument and it seems like you completely misunderstood mine, but I think what you are saying is that the negotiations with Facebook don’t matter since it won’t change. So this is not about trying to set up a licensing scheme with Facebook that is not going to happen. Okay then what justifies INDISCRIMINATE take down notices, if it’s not a negotiating tactic?
Remember what we are defending the tactic of completely indiscriminate take down notices, for all videos no matter how few the views, no matter how noble the cause (video of soldier’s funeral where they sing his favourite song GONE).
Is it just a make work project for lawyers because for videos that are only ever going to get a few views sending the notice could easily cost more than any revenue lost? Is it all for the warm feeling of knowing that your copyright has been defended at a net cost to you? Nothing positive happened but at least you stuck it to that Soccer mom!?
None of that strike me as smart action.
When employees take company pens home that is stealing and the company managers could be legally within their rights to fire all such employees, but that legal and moral high ground hardly makes it a smart business decision…
Your argument seems to go that since this is technically stealing there is no way it offends people to be sent a take down notice and certainly they get no sympathy for receiving the notice. Everyone faces this with contentment. That is a world of gum drops and lolly pops, if that was the way people’s minds worked no one would be posting unlicensed videos in the first place…
Also you seem to be neglecting the option that Facebook is forced to set up a licensing scheme not by voluntary action but by a change in the law, I as much meant that the wrong tactic could work against a licensing scheme that way (turn voters against such a change). Indeed I suspect that being too heavy handed might lead to an erosion of artist rights through the law (make voters side with Facebook). I think that sort of consideration is also present in the initial post. I am guessing you think that it goes without saying that the indiscriminate take down notices have no such knock on effects. I suggest it is not so obvious that this is so.
Allan, you seem to be under the impression that public opinion affects law. I’m not sure which country you’re in but here in the US public opinion doesn’t count for much. Lobbying dollars are what counts.
But let’s assume these actions make the public hate UMPG. Who cares? Why should they care? How does it actually affect their business? Will people stop listening to music written by their writers? Will they not go to that Imagine Dragons concert because their FB video got removed that one time by some company? Of course not. Come back to reality where it doesn’t matter whether or not people like a publisher or feel warm and fuzzy about the music industry. It’s not going to start a boycott on music where people refuse to listen to anything mainstream. It never has and never will. You are giving far too much credit to public opinion.
Arguably the reason that public opinion does not count for much is that the law already pretty much accords with public opinion so the law rarely changes explicitly because of public opinion. Also lobbying needs some votes behind it one way or the other, if money could buy everything then there would be no smoking restrictions or tobacco lawsuits etc. (I don’t live in the US but I read about those things all the time so I know it applies there). Finally you may be assuming that your opinion is popular opinion, so you see a lack of response to your opinion and mistake that for lack of response to public opinion.
Maybe your cynical view is right, the bad blood this policy creates will not lead to any legislative change, democracy is imperfect after all. That still does not make this tactic smart. You’ve yet to give a positive reason to think that this tactic is better than any alternative. Your argument seems to be to say again and again it makes no difference. So why it do it at all then? You seem to agree that it makes no difference so what good is it?
Also according to you every unlicensed play of a song causes so much harm, so even if the number of tickets sold etc. stays the same apparently if the number of unlicensed plays goes up that is a horrible very bad thing. I am almost sure bad PR drives up the amount of unlicensed plays that goes on so even if it does not foul negotiations with Facebook or lobbying efforts on changing copyright laws then there is another way that bad publicity is hurting the recording industry.
I’m sorry but if you admit the basic point that yes this sort of indiscriminate approach creates bad blood then yeah it may be hard to pinpoint but that will get back to the music producers in various subtle ways even if it never causes something dramatic like a boycott. You have admitted that as Ari Harstand said yes the policy needs an explanation, a reason for existing given the bad consequences, not just because you feel like it that day.
“It would be amazing if FB would stop being greedy, unyielding, copyright infringers”
+1
Matt,
I’ve always wondered why UMG, other majors represented by the RIAA, and major publishers don’t actually sue the companies they so vociferously complain about. Hey, if suing Ukrainian coders made a difference, I’d be all for it. But it’s not: these are easy victories, with near-zero tangible results. But they still cost a lot of money, and distract from the real problems.
Got a problem with Facebook? Why not sue them?
Paul, that’s a fair question. DMCA prevents easy and clear action against companies like Facebook. You have to establish a heavy pattern of non-compliance or you won’t get anywhere.
Sending discriminate notices that are far more occasional are easy for Facebook to absorb in terms of actual man hours for take downs and moreso for customer dissatisfaction. As soon as you have hundreds of thousands or even millions of upset customers you begin to pay attention. The fact that FB recently posted a position with the intent of helping them find someone that can right the wrongs says the labels and publishers finally have their attention. They could have focused on this years ago but it just wasn’t important enough or worth their time.
Bottom line, thanks to DMCA the likely approach for suing FB remains in non-compliance with DMCA, which would be failure to remove these videos upon request.
Wait so now this is a negotiating tactic? But you said “It would be amazing if FB would stop being greedy, unyielding, copyright infringers but there is no end in sight with that as an outcome.” There was no hope of any change.
Make up your mind.
Forgive me Allan, meant to say that there was no way FB would come around to being ethical on their own. Please feel free to nitpick the next line you see that doesn’t align with your socialistic viewpoint on how the music industry should be ran…in the US…even though you don’t live here.
I’m sure you have decades of experience in sync licensing and unlimited DMCA knowledge so please dazzle us with something more substantial than soccer moms being upset about a family member not being able to see a particular video on a social platform.
You misunderstand my position. If you had offered all the explanation and defense of take down requests that came out in these comments in the original piece then I would never have commented.
I don’t think I was being nitpicky since I still think you take two contradictory positions at various points as you argue this. This is a serious impediment to clear communication. Still I was clearly not asking the right questions and got rude. Sorry.
They can’t because of the DMCA act. How long have you been doing this Paul? Jesus man get a clue.
Thanks Allan. It’s truly a complicated issue. I guess what’s really at play here is that FB has left rights holders with this option or just total inaction. Ari taking a swing at UMPG and other copyright owners is what got me riled up. As someone that regularly writes for this publication, I thought a bit more research and context was in order instead of just blindly dragging companies through the mud.
I get it, UMPG is a big company as are many others. Just because you’re a big kid on the playground that doesn’t mean there isn’t a meaner nastier kid that likes to pick on you. Eventually you get sick of it and fight back, you can’t get pushed around forever.
“Bottom line? Facebook is at fault here and artists have no right to do whatever they feel like wherever they feel like it with another artist’s work, no matter how entitled you may feel. Do it the right way, or don’t do it at all.”
Yes, this is the bottom line and should be. What amazes me is how much new music business cover videos artists get caught up in “their right” to exploit others’ work for their own benefit EXCEPT for the right of the copyright owner to have a say in how their work is covered, used, etc.. Sure, some artist/copyright owners might not care – but some DO. And if they create something, and don’t want anyone else to perform it or use it but them, THEY SHOULD HAVE THE RIGHT TO SAY NO. Or, in this case, have the right to say “you didn’t ask permission, we don’t have a user agreement, so take the video down.”
Never mentioned in any response is if any of the cover video artists actually download or buy the original artist/copyright artist’s work FIRST before they create their own version, or if they promote the original artist with links in their comments, etc. of these videos to the fans they personally gain that may want to buy the original. Shouldn’t cover-video-artists be taking it upon themselves to learn the BUSINESS of music and how it should be done? What kind of “new music business” do they expect to create if they start off in this way?
So, let’s be clear – cover videos are becoming a way that “new music business” indie artists are seeking to gain recognition for themselves, which ok fine, is a way of trying to get discovered or get recognized for yourself. I’ve been in many-a-corporate bands that have performed numerous live gigs playing cover music, as well as my own. I never looked at the cover thing as the way to promote my solo indie career, call me old-fashioned – but I realize some artists find that way appealing, and far less effort than trying to get your own music heard.
The bottom line is, if cover-video-artists weren’t taking advantage of the system and were instead, promoting their own music, none of this would really be an issue. (Sorry if you feel insulted, cover-video-artists, but you really have to understand the implications of your actions…) If indie artists were using their own content on FB, Universal wouldn’t be involved, spending a lot of money that they won’t get back in trying to enforce the rights they have paid for and promised to the songwriters and artists under their brand.
So, maybe you have to look at the UMG strategy as not towards the moms who upload their kids singing a song, but as a strategy to educate new music business artists who presumably want to become famous and sell THEIR OWN music, that covering another famous artist’s song, who may not have written it, or who may not own the copyright, is something you should have permission to do. If you don’t, you’re stealing, just like everyone else. It doesn’t seem like music business schools or music business experts are teaching any of this, and if they are, new indie artists aren’t really up for listening. They want to do what they want to do, and want to blame the “old business” for not adjusting to their “new way of doing things.”
Facebook is just another platform “new music business cover video artists” are trying to be discovered on, it seems, because of the algorithm thing but also because YouTube has now gotten crowded with other artists doing the same thing. I don’t know that anyone who I respect as an artist enough to create a cover video of their work would say to me, “I want you to have a career doing cover videos of my work for a living,” if they weren’t being compensated for that in some way, or if I didn’t offer to give them a part of the publicity or revenue of what I earned from it.
Again, these are my views being in the industry 20 years as a Music Supervisor, Music Director, Session Musician, Indie Artist, Everyday Working Musician, Music Director, and now Founder of a non-profit whose mission is to preserve a musician’s credits and digital legacy – so that creator level music history doesn’t fall off the digital cliff.
Who knows, within a few years, instead of YouTube stars, there will be Facebook stars, and I’m sure we all can’t wait.
Perhaps I misunderstand but you seem to be suggesting that songwriters have some write to veto covers even if they would get paid rather than mandatory licensing and the like.
I could be wrong but surely most live music since the inception of modern copyright has been a musician covering someone’s song (and a huge chunk of recorded music is covers). Now ideally and perhaps even usually someone (the bar etc.) was paying into the licensing system and so the songwriter was getting paid for the play, but not actually getting explicit permission for a cover is the norm in music and has little to do with recent technology. The problem here is that people are not getting paid, the permission thing seems secondary.
The truth is it seems like all of it is kind of a big mess but Facebook posts especially for cover videos could easily be forwarded by asking the user a question when posting the video the simple crust question is this original video content if the user answers no then could have a follow-up question like is this a music related video it’s the user answers yes then ask 1/3 question which would be has this video been properly licensed with the music industry right here is an opportunity for a company like Facebook 2 even capitalize on doing the right thing by putting a link 2 a clearance organization like what CD baby has in place 4 artists who would like to utilize another artist song cover it and still make royalties off such downloads.
The truth is you don’t really even need three questions but something that just asks the user if there is any copyrighted material being used in this video clip including cover song.
Anyway it can easily be done by Facebook and Facebook could then ask if this is a cover song please submit the title of the song with the artist and they could have two boxes with the variables artist name and artist title then do a check against the database containing registered titles and say you must obtain clearance if the copyright is still in existence I don’t know all about copyright law but I think certain older songs Beyond Thirty or forty years nostalgic Tunes I have some copyright leniency more modern artist titles are the ones that should be addressed. They truly should be entitled to royalties in relation to artists creating cover versions of their original songs.
Right now even royalty reporting agencies in the digital Realm are supposedly separate Azan Sound Exchange is one of the royalty agencies collecting digital royalties through streams downloads however it never made much sense to me why ASCAP BMI and sesac didn’t just step right into the digital Realm with royalty collection by using the digital imprint method that is currently being used by YouTube. YouTube can identify a copyright violation almost instantly because the audio is compared against the database digital audio files to determine if a video contains copyrighted audio if a platform like YouTube can do this in the same companies who actually have titles registered with them they could easily add and upload digital audio option and allow for a database to be created from the artist that they represent
for example I have about 35 titles registered with ASCAP if a scab had an upload feature for my digital audio files those could easily be stored in the database and then when there is a usage somewhere on the internet that same file with its digital imprint could allocate onestream or play and notify the proper royalty collection agency. It could even be more simplified by adding it to the data profile of the recorded audio as an example when you look at the ic3 info on an MP3 you can enter the song title the artist name the track length record company copyright info and another field for the Performing rights royalty collection agency. When a stream is played with that agencies profile it could easily send that data to increment a song play and royalty collection it’d be much more simplified and accurate. I honestly don’t think and additional organization like Sound Exchange or any other digital royalty collection agency is needed 3 is plenty 23 any Monopoly so why not use the current three that have been established for a number of years this would also keep any additional hands out of the artist pie as it is it’s almost as if Independent Artists who before we looked at as the smart Pioneers who will benefit from this revolution have now become the undervalued under noticed sessions and performers it’s sad because I’ve seen the industry to grow in all the wrong directions with all of the organizations that charge musicians all these different types of fees in order for them too be partakers in an opportunity that usually is just a bunch of crap and some company advantage in itself in the collection of more money from the poor Starving Artists.
I speak of this from first-hand experience companies like Sonicbids indaba music music x-ray ReverbNation all of these companies are taking from artists instead of giving back they’ve been capitalizing on the hopes and dreams musicians who are out there just trying to make a living it’s pretty sick when you think all these organizations have no type of governing body to stop them from hurting others but millions and millions of dollars are being made every day with no real accountability.
I know i completely switched up this subject to mention the companies who are doing this but it’s really only to say that this whole independent musician landscape should never have been this difficult should never been this corrupt and could have easily made the transition from major label record companies… To artists becoming more the managers of their careers themselves,
But the business world with all its corruption couldn’t allow this to happen. It’s a sad state to live in it especially when you been doing music for 23 years I sound like a disgruntled musician but I just things could have been much easier than this for people like myself.
I did talk text this message so please forgive some of the garbled grammar above…. PS if you want to hear some good acoustic and ukulele music please check me out before I’m gone…..
I don’t know… I bet the big stars DO want the “exposure bucks” from fans of theirs just as much as the DIY artists want it for playing free shows on behalf of restaurants and bars.
“Exposure bucks” pay the rent!