Do you wear makeup or know someone who does? Then you’re probably familiar with Michelle Phan, one of the earliest and biggest YouTube stars. Phan made her mark with sleek, fun makeup tutorials. She also made bank, translating her 8.9 million followers into a YouTube partnership and inking endorsement deals with Lancôme, L’Oréal and Dr. Pepper. There’s something else filmmakers should know about Phan. In 2014, dance label Ultra Records filed a massive lawsuit against her. The charge? Copyright infringement of their music! Copyright law can be confusing. It pays to know where to find royalty free music, or you could be paying a lot more down the road!
Ultra Records’ lawsuit against Michelle Phan put her entire lucrative video empire at risk. While you may not be (i.e. almost certainly are not) a big star like Phan, that doesn’t mean no one will notice if you post a video showing off your mad dancing skills to Chumbawamba’s “Tubthumping.” If you use music improperly in your videos, you could lose your ad revenue, see your YouTube channel suspended, and even end up in a courtroom!
We’ve previously gone into more detail about copyright, so we won’t take a deep dive here. Suffice it to say that when someone creates a song, they own that song. Makes sense, right? If you built a birdhouse, your neighbor can’t just take the birdhouse and hang it in her yard without your permission even if she gives you credit. The same goes for music, lyrics, musical scores, and even artwork that too closely approximates another. Robin Thicke and Pharrell Williams can tell you all about that.
Their pop hit, “Blurred Lines,” might have blurred a few copyright laws, at least according to the family of soul singer Marvin Gaye, who believed Thicke’s song was suspiciously similar to Gaye’s funk ode “Got to Give It Up.” A jury agreed, awarding Gaye’s family $7.3 million. A judge lowered the fine to $5.3 million but granted Gaye’s family 50% of all future royalties from the song.
So, yes, copyright is kind of a big deal.
If you use someone else’s song in your video without their permission or without proper music licensing, you are infringing on their copyright ownership. You are not the next YouTube sensation; you are a thief.
There are exceptions to copyright protection, including fair use and public domain. Those are topics for another day. (Even if you think your videos qualify as fair use or you intend only to use public domain music, this article is still worth reading.)
Now that you have a better understanding of copyright, let’s look at what can happen if you decide to take your chances and not use royalty-free music in your video.
If you want to make money with videos, chances are that YouTube plays some role in your plans for video world domination. The mega video sharing site boasts a billion users as well as a lucrative ad network that can turn your daring stunt videos into an ATM. Michelle Phan was making makeup tutorial vlogs years before she created her first YouTube account, but YouTube is the platform that made her famous and turned her into a multi-millionaire.
If you post that “Tubthumping” dance video to your YouTube channel without permission, there are two ways you can be caught. First, the owner of the song can send a copyright infringement notice to YouTube asking them to take down your video. It would be nearly impossible for the members of Chumbawamba to watch every single YouTube video in search of copyright thieves, but that doesn’t mean you or your wicked dance moves are safe.
That’s because Chumbawamba isn’t the only one searching for illegal uses of their song. YouTube has designed a powerful algorithm called Content ID that constantly scans videos for copyrighted material. Content ID relies on a database of 50 million reference files of copyrighted work. The algorithm searches videos, matching images, sounds, and songs against its database. If it finds a match, it could pull down your video.
Let’s say that either Chumbawamba (more likely their label) or YouTube’s algorithm discovers your “Tubthumping” dance video. If this is your first copyright offense, then you’ll get a strike. Your video will be pulled down and you’ll be forced to humbly attend and pass Copyright School before you can post any additional videos.
As long as you play by the rules, your strike will disappear in 90 days. However, much like baseball, if you get three copyright strikes within 90 days, you are out of YouTube. The video site can pull down all your videos, close down your channels, and terminate your account. There’s no getting back up again from this!
There’s one other interesting potential outcome. In some circumstances, if your YouTube video is earning good money, the copyright holder may be able to “take over” your ads and extract from your income.
If you earn some or all of your income on YouTube or rely on the video platform to promote yourself or your business, three copyright strikes could mean the end of your career and financial destitution. Maybe your parents will be nice enough to let you move back into your old room or, if Mom’s not willing to give up her new macramé art studio, at least let you sleep on the couch in the basement. It’s probably best not to find out, though!
Of course, things could get worse. YouTube isn’t the final judge and jury when it comes to handing out copyright infringement penalties. For that, you may find yourself standing in front of an actual judge and jury!
YouTube’s copyright penalties are tough, but they pale in comparison to what you may face in the real world. While it is rare, copyright owners can take you to court to demand payment. The maximum statutory damage for an act of copyright piracy is $150,000 along with attorneys fees and court costs.
Think that’s bad? You could actually lose your freedom. In extreme cases, copyright infringement could land you in jail.
Don’t worry, your favorite YouTube makeup artist was never at risk of going to the big house, but Ultra Records did ask for the maximum $150,000 penalty for each of the 50 instances of copyright infringement it claimed against Michelle Phan. Ultimately, Phan and her army of attorneys were able to reach an undisclosed settlement agreement with Ultra Records.
We’re guessing you don’t have a fleet of copyright attorneys on speed dial. That means it’s probably a good idea to play by the rules. Do not, for one instant, think that you are too small or insignificant to be caught. You may only have 100 YouTube followers today, but you can bet when you hit 10,000 or 100,000 or 1,000,000 followers, someone will start to take notice of your freewheeling copyright ways.
The best and easiest way to avoid copyright infringement is to:
You probably don’t have the time or expertise to create your own music, and seeking permission from an artist or label for every song you want to use isn’t very feasible. That leaves using public domain songs or finding royalty free music. The music in the public domain is very limited, though it can be cost effective if you have a lot of patience and don’t mind digging for needles in a haystack.
For most filmmakers, the best option is to work with a company that specializes in stock music. At Soundstripe, we offer monthly and yearly subscriptions that allow our members to use every song in our growing music library. We deal with all the music licensing and permissions, so that the only thing you have to worry about is finding the perfect music for your videos!