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YouTube Makeup Star Michelle Phan Sued Over Background Music

By Daniel Taylor, Esq. on July 21, 2014 | Last updated on March 21, 2019

YouTube star Michelle Phan's make-up tutorial channel has more than 6.6 million subscribers and has landed her endorsement deals with big brands like Lancome and legions of dedicated fans.

But it seems record company Ultra Records is not a big fan. The record company -- home to some of the biggest names in electronic music like Deadmau5 and Calvin Harris -- has filed a lawsuit against the make-up artist claiming that the background music on some of her most popular videos was used without permission, reports TMZ.

Does the record label have a legitimate beef with Phan, or will her use of the songs fall under the "fair use" exception to copyright protections?

Copyrights are the legal protections given to the creators of "original works." Typically, a copyrighted work such as a song can't be used without securing the permission of the copyright holder, known as a copyright license.

In this case, Ultra is claiming that Phan infringed on its copyright by using the copyrighted creative works of its artists in her videos without a license. However, not all unlicensed use of copyrighted material is copyright infringement. The doctrine of fair use allows the use of copyrighted material under certain circumstances.

For example, in 2012, record company BMG contacted YouTube to remove a video posted by the Mitt Romney campaign which featured President Obama singing a portion of an Al Green song. BMG claimed the video infringed on its copyright. But after initially taking down the video, YouTube changed its mind and reposted the clip, saying it felt the video fell under fair use.

What Determines Fair Use?

Generally, using portions of copyrighted material is allowed under the fair use doctrine if it's used for criticism, news reporting, teaching, scholarship/research, or parody. To determine whether a use is a fair use, a court will typically weigh four factors:

  1. The purpose and character of the work. Though commercial use, as opposed to use in a non-profit or educational setting, may tend to show the use is infringement, it is not necessarily determinative.
  2. The nature of the copyrighted work. Factual works such as historical accounts or scientific writing are generally afforded less copyright protection than creative works, such as music.
  3. The amount of the copyrighted material used. A 1994 U.S. Supreme Court case, which ruled rap group 2 Live Crew's use of a portion of Roy Orbison's song "Oh Pretty Woman" was a fair-use parody, relied in part on 2 Live Crew's use of only small portions of the original song.
  4. The effect of the use on the market value of the material. A court will also look to whether the use is depriving the copyright holder of potential profits. In this case, Ultra will argue that the use of its artist's music in Phan's video deprives the company of the opportunity to license it to other YouTube content creators.

If found to have violated Ultra's copyrights, Phan may be forced to hand over any profits she made from the videos featuring the record label's music. Attorneys for Phan and Ultra could not be reached for comment, Reuters reports.

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