Michelle Phan Claims Dance Label Overstepped on YouTube Takedowns

The make-up star responds to a lawsuit alleging "wholesale infringement" of Ultra's recordings
Evan Agostini/Invision/AP

A notable lawsuit over YouTube star Michelle Phan's use of background music presented her side of the story in counterclaims lodged on Thursday in a California federal court.

Phan is a make-up artist and one of the biggest stars on Google's video-sharing platform. She has about seven million subscribers and endorsement contracts with Endemol, L'Oreal Cosmetics, Dr. Pepper and others. She was sued in July by Ultra Records, home to such artists as Kaskade, Deadmau5 and Calvin Harris. According to the original complaint, Phan "embarked on a wholesale infringement of Plaintiffs’ musical compositions and recordings" by copying and synchronizing the music with video footage without authorization.

Phan's counterclaim asserts that simply isn't true. She says her videos are so popular that record labels come to her and pay for the opportunity to feature music in her videos.

In 2009, Phan alleges she contacted Ultra's senior new media manager Jason Kilgore for permission to use the music of Kaskade. The exec wasn't aware of Phan at the time, but is quoted as writing back that Ultra was “really happy to see you supporting Kaskade,” and that Ultra was “more than happy to let [Phan] use this content.”

The two are described in Phan's court papers as working out an arrangement in connection with YouTube's "Content ID System," which allows copyright holders to match works and when necessary, remove infringing material.

"As further confirmation that Ultra agreed to allow Phan to use its music (in consideration for her crediting the musician and including an iTunes purchase link), Kilgore promised Phan in writing that whenever YouTube made a claim on one of Phan’s videos using a Kaskade song controlled by Ultra, he would release that claim," says the cross-complaint.

Kilgore allegedly sent a promotional package of CDs featuring Kaskade and other artists. He is quoted as stating a few days later, "especially thanks for including the iTunes buy link in the description and a title bar at the beginning. This is the perfect way to incorporate any of our videos."

Phan believes her agreement not only covered Kaskade, but all Ultra artists, though the counterclaim comes up short in producing a written agreement or describing specific terms of an oral agreement. There's no breach-of-contract alleged in fact, only a theory that the record label's consent, support and coordination over the years added up to non-revocable permission to use any of the label's music. She's seeking a declaration that confirms such to be true.

Assuming she has license to use the music, she's also pursuing Ultra on counterclaims of abusing the Digital Millennium Copyright Act by making a misrepresentation during the takedown process. She alleges that notices sent to YouTube were sent in bad faith. She's also bringing an interference claim for disrupting her contractual relationship with YouTube.

Phan is represented by attorney Allen Grodsky. Ultra is being represented by Christine Lepera, who hasn't yet responded to a request for response.

News of the counterclaim was first reported by Variety.

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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