YouTubers and record labels are fighting, and record labels keep winning

Glenn Fricker didn’t run into any issues when he uploaded a video about digital music editing to YouTube in 2014. But in April, nearly five years and 600,000 views later, he received an email from YouTube notifying him that Warner Music Group had claimed copyright over a 15-second video clip he included of Iron Maiden. As a result, the entire video would now be blocked.

Fricker was pissed, and he didn’t know what to do. “YouTube is not very forthcoming with their information or communication,” Fricker told The Verge. “I did have a contact there, but I haven’t heard from her in a year-and-a-half.”

Copyright issues have plagued YouTube and its community for years, but creators are calling this moment in time one of the worst eras for trying to navigate the platform. Over the past six months, multiple YouTubers have run into issues with what they describe as aggressive copyright claims from record labels. That includes two of today’s most popular creators: Jimmy “MrBeast” Donaldson, who said he lost more than “five figures” on a video for simply saying the Bon Jovi lyric “livin’ on a prayer,” and beauty guru James Charles, who complained that an a cappella song parody was unjustly claimed.

It’s not just mega successful influencers like Donaldson and Charles who say they’ve seen an increase in copyright claims. Independent music education channels — such as people teaching viewers how to play parts of songs or breaking down how tracks are constructed — are also struggling with record labels’ claims. Unlike the aforementioned creators, most of these channels aren’t amassing tens of millions of followers or views. It’s not just two or three videos they have to worry about, either. It’s almost every video.

It’s a real problem for creators who want to remix or create educational content about popular music, and the law isn’t necessarily on their side: fair use law is limited in scope, and even musical covers and a cappella performances are still protected by various forms of copyright. It all leads to a tense balance between the interests of video creators and musicians, with YouTube caught in the middle.

Fricker is a professional audio engineer who has worked in the music industry for years. On his YouTube channel, he teaches various tricks of the trade to other engineers and musicians, occasionally deconstructing tracks to show where a recording went wrong.

He never thought too much about it. Until one day he woke up to an email reprimanding him for using part of an Iron Maiden song.

“The record labels literally got all the power,” Fricker said. “There’s no third-party arbitration system there. They make the claim and you could deny it, but what’s the point?”

Another music channel, The Guitar Manifesto, has run into problems using riffs from popular songs to show what different guitars sound like. Rob, who operates the channel and doesn’t disclose his last name, has received copyright claims on videos that include brief covers of songs from popular bands like Nirvana.

When a record label issues a copyright claim, it has two different options: either pull the video down entirely, or allow the video to remain up but collect some or all of its ad revenue. Because of requirements under the Digital Millennium Copyright Act, YouTube is obligated to take down copyrighted content that’s been uploaded by users, with little incentive to question ambiguous cases once they’ve been identified by a label.

This is all possible because of a much-heralded tool YouTube has built, known as Content ID. Content ID allows copyright holders to upload their content to YouTube’s system, which will then scrub through the millions of videos uploaded every day in search of violations. The system appears to be increasingly successful: it took seven years for it to deliver $1 billion to copyright holders, but only two years to do the next billion. Another two years later, YouTube announced it had surpassed $3 billion in total payouts.

Creators do have some options to contest a copyright claim or update their video. That often requires going back into a video, editing out impacted segments, and either working within the existing video or re-uploading it entirely. The content — like a guitar tutorial — may not work if you remove the audio or cut around it.

The Guitar Manifesto hasn’t had videos taken down, but it has had labels claim revenue from its videos. “It seems to be a big thing at the moment where a bunch of guitar channels are getting claims put against their videos due to copyright infringement,” Rob says. Even playing 10 seconds of music in a 30-minute video can lead to a record label getting all the money it takes in. Rob said he relies heavily on advertising revenue and will often go in to edit segments out that YouTube dinged him for in order to monetize videos.

In order to prevent a video from being completely blocked in the US, the operator of another guitar instruction channel, Paul Davids, removed a portion showing viewers how to play a “two second lick” from The Eagles’ “Hotel California,” which also included a several-second clip from said song. “Hotel California” is one of the many songs that automatically leads to a video being blocked in most countries, according to a tool YouTube built for creators to see if any of the songs they want to use or cover will end up getting their video blocked. Davids’ video, “10 Extremely Tasty Licks (you should know),” now includes only nine licks.

YouTube has put a strong emphasis on educational content, including the type of tutorials and informative commentary that Fricker and Rob both produce. Executives have touted educational content as an area the company wants to invest in and expand upon. The company announced in October 2018 that it was investing $20 million in creators who produce educational videos, and it’s used this type of advertiser-friendly content as a way to encourage more companies to run ads on the platform.

Because their videos are educational, both Fricker and Rob believe their use of popular songs should fall under fair use — a carve-out in copyright law that allows people to use copyrighted content if the resulting work is transformative enough that it’s completely separate from the original work it’s using. Fricker says his videos should be “in the clear” because he’s creating commentary and educational content. Rob says he “can’t even use a D chord” when trying to demonstrate how to play a specific song because the title in combination with the single chord played results in a copyright claim.

But fair use is more complicated than it’s often made out to be. And depending on who you ask, it’s not clear whether these videos can be protected under it.

One complicating factor is that both recordings of popular songs and the actual composition of those songs have separate copyright protections. So even a cover or an a cappella performance is at risk of being claimed because a song’s melody and accompanying words are protected by composition copyright. Musicians also have “synchronization rights” to their compositions, allowing them to decide whether their song can be synchronized with a piece of visual work, says Jeff Becker, an entertainment lawyer at Swanson, Martin & Bell.

Becker says that, generally, YouTubers aren’t in the clear to use copyrighted music unless they’ve obtained proper permission from all parties involved. It’s not just the record label creators need to worry about. Artists, composers, and songwriters all have their own rights.

Fair use protects transformative works, Becker says, but the line for what defines transformative isn’t clear cut. When decisions are subjective, content reviewers are going to err on the side of caution, since YouTube could face legal repercussions if it fails to act. “If you have to think about it, you’re probably not using it in a fair use way,” he says.

Other experts disagree. If you’re using a segment of a song in a 20-minute transformative video, “it’s almost certainly a fair use case,” says Mitch Stoltz, a senior attorney at the Electronic Frontier Foundation. There was hope a decade ago that YouTube would cut out content gatekeepers and allow creators to reach audiences without encountering traditional hurdles, but that hasn’t entirely happened. Instead, Stoltz argues, “what we’re seeing is gatekeepers emerging in a different form.”

Stoltz acknowledged that there are a lot of misconceptions around fair use. It’s not necessarily okay to play a song just because you’re only using five or six seconds, he says. But if you’re using a small segment from a song to create an entirely new video, it’s “almost always fair use, and that ought to be protected.”

Fricker did manage to get his video unblocked. But doing so didn’t involve going through YouTube’s formal channels: it involved publishing a YouTube video about the problem and being lucky enough for that video to gain attention on Reddit. “That’s the only real recourse you got on YouTube — just talk about it,” Fricker said.

YouTube CEO Susan Wojcicki recently acknowledged creators’ widespread concerns about copyright claims, saying the company will try to do more to clarify what’s going on. In a note to creators, Wojcicki said she’s heard that they’re “frustrated” with claims over short and incidental music playback, but didn’t go so far as announcing changes to stop them. “We are exploring improvements in striking the right balance between copyright owners and creators,” Wojcicki wrote.

A spokesperson for YouTube reiterated Wojcicki’s message in a statement to The Verge, adding that the company “will continue to explore further improvements that strike the right balance between creators and rights holders.”

YouTube offers a handful of tools to help creators caught in a copyright claim. An audio-swapping tool can remove copyrighted songs that are preventing creators from getting paid. YouTube’s current appeals process also ensures that people can address copyright concerns without losing ad revenue, so long as they do it within five days. Artists who upload cover versions of songs may also be able to split the revenue with the record label or original composer, depending on YouTube’s agreement with the label. There are even online classes YouTube encourages users to take to better understand how fair use and monetization work when using licensed works.

But YouTube also has to keep record labels and their artists’ best interest in mind, too. YouTube’s music streaming service, YouTube Music, is a crucial part of the platform’s offerings to Premium subscribers — something Wojcicki has spoken about in previous interviews. When YouTube and Universal Music Group, one of the biggest conglomerates in the music industry, re-signed their agreement in 2017, Universal CEO Lucian Grainge spoke to the importance of “growing compensation from YouTube’s ad-supported and paid-subscription tiers,” for artists on YouTube.

Even people at record labels have trouble striking a balance between allowing YouTubers to use songs and ensuring their artists receive fair compensation. An executive at a major label, who asked to remain anonymous to speak about copyright claims, told The Verge that they were aware of a notable YouTube creator who got mad over a copyright claim on a video that contained nearly two minutes of sliced up music from a famous rapper’s songs. The executive said the label prefers not to take down videos, but their primary concern has to be their artists and songwriters receiving the royalties they’re deserved.

Part of the issue that creators run into on YouTube is there’s no single deal among the major record labels governing how copyright claims work. YouTube has different deals with Universal, Warner, and Sony, according to the executive. Some companies are more aggressive when it comes to claiming videos, the executive said.

The conflict also speaks to a long-running divide between artists and gatekeepers. YouTube was meant to let anyone with a camera reach an unlimited audience, but as YouTube professionalizes, video creators increasingly feel squeezed out by Hollywood and record labels. “Labels have made their living by fucking people over,” Fricker said. “This is just the labels doing what they do on a new platform.”

The particulars may have changed, but this same conflict has surfaced again and again. “It’s been a constant battle and the various issues change over time,” Stoltz says. “But what’s going on under the surface is really just, “Can a mass of creators speak to the world, or are they going to be filtered by the traditional gatekeepers of popular culture?’”

It’s a challenging problem to solve at YouTube’s scale. A fair use video is ultimately a video that contains copyrighted material, which makes it difficult to clear in a consistent, automated way. “It’s really hard to rely on an algorithm to know if something is fair use or not,” Becker says. “That’s really hard to fucking do — especially if you’re a computer.”

The conversation isn’t going away. More copyright concerns from creators are appearing every day, from every corner of YouTube. Confusion over how copyright claims work is affecting the beauty community, vloggers, podcasters, memesters, and everyone in between. Stoltz sees this as more than just a conversation about fair use and copyright infringement; it’s more than just a conversation about what type of content is monetizable. This is a conversation about the future of culture on YouTube.

“Adding in a lot more gatekeepers and adding more curation — that’s not the YouTube that’s wide open and the YouTube that we know today,” Stoltz said. “That’s what’s at stake.”

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