Legal Blogs

Understanding Copyright Infringement & YouTube Advertising

Posted by Brandon Selinsky on Jan 5, 2015 8:09:14 AM
Brandon Selinsky

Can advertising on Youtube lead to copyright infringement?

YouTube, the ubiquitous video-sharing website now owned by Google, has become a launching ground for individuals and businesses seeking to increase their recognition.  Many international businesses have used the site as an inexpensive means of international marketing.  An effective YouTube channel or video can reach potential customers across the globe at a fraction of the cost of traditional advertising.  Red Bull’s YouTube channel is a great example of an effective use of YouTube.  

However, many small businesses use the site as well, and when they do, they place themselves at risk of being sued if certain precautions aren’t taken.  Unfortunately, without in-house legal teams overseeing their every move, small businesses are at higher risk than large corporations.

Michelle Phan’s Case is a Warning

Headlines about Michelle Phan’s legal troubles highlight some of the pitfalls individuals and businesses must watch out for.  Phan became famous by creating makeup tutorials and demonstrations on Youtube, creating her channel in 2007.  Since that time, Phan’s following has grown exponentially and she now has more than six million subscribers and her most famous makeup tutorial has been viewed more than 50 million times.

Phan is now facing a lawsuit for copyright infringement.  Her content is original, but during her videos, Phan plays popular music in the background.  She never obtained a license to utilize the music and never paid royalties.

According to court documents that were filed in California, a record label and its associated publisher, Ultra International Music Publishing LLC, are claiming that Phan makes money from advertisements that are attached to her YouTube channel and website that illegally use music owned by the label.  More specifically, the label says that its complaint “includes nearly 50 examples of blatant copyright infringement,” however, the “plaintiffs’ analysis is still preliminary and the full extent of Ms. Phan’s infringement has not yet been determined.”  All in all the total amount that the label is seeking in damages is $150,000 for each time Phan used one of the label’s songs as well as an injunction to stop Phan’s use of the music.

Music and Lyrical Copyrights

When it comes to music, copyright begins the exact moment when the music and/or lyrics are created and then set down on paper, stored on a computer or recorded in a studio.  The music need not even be registered with the Copyright office for it to have copyright protection.  

The Copyright Law Chapter 11 Section 1101(a)(2) states that unauthorized acts are defined as “Anyone who, without the consent of the performer or performers involved-(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance.”  The duration of the copyright for musical works published after 1978 is the life of the longest surviving author plus 70 years.  Looking right at the statute, it’s a clear cut case that Phan has stepped over the lines and was using the music illegally.

To counter this argument, Phan says that she did have permission to use the music and is planning on countersuing Ultra International Music.  In addition, this copyright infringement lawsuit does illuminate a social media dilemma.  Eric Dahan, the CEO of Instabrand.com stated that:

“influencers and social media have been seen as a platform for free expression and no one ever worried about IP, trademark, copyright or any other legal issues…Up to this point when music was played on an influencer’s channel, labels and artists were happy and saw it as free PR for their songs. However, now that there is more and more money pouring into the influencer and social space, it’s no longer being overlooked by the legal teams - and artists want to be compensated.”

Some artists, including those associated with the label, have come to Phan’s defense on Twitter and other social media outlets. Kaskade recently tweeted, “I’m not suing @MichellePhan + @ultrarecords isn’t my lap dog.  I can’t do much about the lawsuit except voice support for her.”  

However, this support hasn’t influenced the label and Phan is still facing a lawsuit that could result in millions of dollars in damages.  If Phan loses this lawsuit and the trend continues to follow this precedent, it will become even more important for businesses and individuals to exercise a high degree of caution before posting any videos to YouTube or a business website.

Don’t Take the Risk

Before you use that catchy tune in the background of your commercial or YouTube video, contact the attorneys at Whitcomb Law, P.C. We can advise you as to your legal rights and responsibilities.

Contact One of Our Attorneys

Topics: Intellectual Property