MEGAUPLOAD: SAMPLES OR SINGING?

The insider music biz controversy this week involves the Megaupload song.  This is a song created by the popular crowd file-sharing site that features some musical celebs endorsing the service.  This is controversial because it’s widely known that there are often many files on the site that are pirated.

Universal Music Group (UMG) ordered YouTube to pull the video over copyright restrictions because its artists were performing on it without their permission.  Megaupload claimed they had all the footage cleared and threatened to sue UMG.  Recently, the video came back on YouTube after they sided with Megaupload on the ownership. Watch the video for yourself here:

Now, I’m not here to debate the ethics of Megaupload nor whether UMG overreached in their takedown relationship with YouTube. What interests me is that this may actually turn into an interesting case on sampling and at what point a sample turns into a song.

At this point, given what is known publicly, I’m going to make some assumptions that I don’t have confirmation of. It appears that Megaupload was able to get interviews with celebs including Kim Kardashian, Serena Williams and Kanye West where they endorse the site. Given the pushback that Megaupload gave to UMG, I assume that these interviewees signed artist release forms that gave the site permission to use that footage in promotional videos without further compensation. These are standard agreements for artists to sign in these situations. UMG generally has control over the usage of the artist when they are singing/performing, but not over interview footage. As such, Megaupload would likely be correct in their assertion of ownership.

However, some of the interview samples were altered to fit rhythmically and musically to the instrumental backing track. In my opinion, this would include Will.I.Am’s appearance at the beginning as well as Chris Brown, Diddy & Lil’ Jon’s appearance at the bridge. While spoken word has been altered to fit a musical composition for decades now (groundbreaking group Tackhead first comes to mind), this is the first instance I can think of where interview footage of major musical artists privately-owned by a company was altered into a musical composition. This opens up a Pandora’s box of questions:

If the broad clearances for interview footage do allow for alterations into musical compositions, might many media outlets (such as Entertainment Tonight or CNN) now be able to create songs from stars without further compensation to said stars?

If it could be determined that these sampled portions are part of the musical composition, wouldn’t the artists (Will.I.Am, etc.) be entitled to songwriting credit? As such, wouldn’t they be able to block the song since they would have to approve first use? I would doubt that Megaupload had clearance so broad to allow for blanket first use permission prior to creation of a musical composition. If the artist would receive songwriting credit, then presumably they would profit from the YouTube exploitation as well.

If these portions are indeed to be found as musical works, wouldn’t UMG’s takedown claim prove to be true as their exclusive contracts with their artists would supersede the artist’s own signature with Megaupload? If they are not musical works, can we expect a rash of altered samples of speech by musical artists to become legal for stream and sale? And if so, how would payments work given the above questions regarding songwriting credit/royalties?

Will this change the dynamic of the artist release agreements all major media outlets utilize? Will they now have to be altered to give the artists some comfort that the footage would not be used for musical compositions?

Sampling in general has been a game of testing the limits ever since it was first implemented in the music business. I’m not really taking a position either way on this issue because I get the value in both sides of the argument. What will be interesting is the outcome as I presume it will have some lasting impact on songs to follow.

I know there are many sampling and free speech experts who read this blog and have far more expertise than I do on this subject. What are your thoughts?

UPDATE (12-19-11): Today, the agreement form with Will.I.Am leaked online and can be found here. The language is typically broad and standard. While I’m not a lawyer, there is certainly reason to side with Megaupload because the language is so broad to cover all the examples mentioned above. If so, then they’ve screwed the pooch for themselves and others as now you’ll likely see many music biz pros taking a fresh look at these agreements and refusing many of these reaches. Of course, there’s a confidentiality clause that’s obviously now been breached. I would presume Will.I.Am did not do the breaching, so could that now make the agreement null and void?

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2 Responses to “MEGAUPLOAD: SAMPLES OR SINGING?”

  1. Tim December 19, 2011 at 10:56 am # Reply

    It all depends on what MU put in that form/declaration that they had the artists sign. If you have copyright over a clip and permission to use it in advertising – you do not need further clearances to put that clip to original music as far as I understand. Differences between UK law (which I understand) and the US are abound though…

    I would imagine that MegaUpload was pretty clear in what they were asking of the artists – just so they could avoid the situation of a take-down. Making a tight contract would not be particularly difficult.

    Universal were obviously and understandably annoyed at the ad – using their own artists to promote a file locker that is used for piracy a lot of the time – but they massively over-reached here. They abused copyright law that is already stacked in their favour to take down a video that they just didn’t approve of. It is a pretty worrying situation that any company has enough clout to get something taken down with absolutely no legal backing whatsoever – this is the issue here. That SOPA/Protect IP would give such companies even more wiggle room to abuse the law is even more disturbing from a free speech perspective.

    • JayFrank December 19, 2011 at 11:38 am # Reply

      I’m not certain the artist would sign that broad of a usage agreement, but certainly anything’s possible. The question though is if they would be in a legal right to do so.

      As far as the copyright law abuse, Universal is not the only ones who could do that. I could issue a takedown notice based on DMCA and the video would have to be taken down until they could prove I was incorrect. Also, I don’t think it’s an over-reach for them to ask for a takedown of a musical performance by an artist in which they have exclusivity on musical performances.

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