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The recent press surrounding artist “takedowns” on Spotify, fueled by Neil Young’s protest of the Joe Rogan podcast, resurfaces questions about when an artist can remove their works from streaming services. Since the rise in popularity of streaming platforms, we have seen many songs and catalogs pulled for a variety of reasons, and we will almost certainly see more in the years to come.
Artists including Taylor Swift and Prince have pulled music from Spotify because of reservations about digital streaming, while Radiohead’s Thom Yorke in 2014 elected to pull his music because he felt the platform did not adequately compensate new artists.
Situations like these give rise to a considerable number of questions: Is it only the big artists like Neil Young who have this right, or do all artists? How are artists and songwriters treated differently? Do artists have different rights on video streaming services than they have on audio streaming services?
Let’s see …
When it comes to sound recordings on audio-only, on-demand streaming services like Spotify and Apple Music, artists can take down content, either directly or through their labels.
Streaming services acquire the distribution rights to sound recordings from an artist’s record labels. The distribution deals generally cover all of a label’s controlled sound recordings, but they may contain some exceptions.
In most cases, an artist’s record label controls the distribution rights in the artist’s music, so the label has the ultimate decision-making control. Some artists have negotiated take-down rights with their record labels. As a practical matter, in most cases, the record label will generally defer to artist interests, so if an artist wants to pull down content, the label will usually comply. When record labels negotiate distribution deals with streaming services, they will generally contain provisions that allow labels to take down content for artist-relations reasons.
In some cases, artists control their rights (like Taylor Swift for her new record deal and rerecords of her songs). In those cases, the artists have control and can take down or keep up the music on a service as they choose.
Therefore, it’s possible for most artists to request that their label take music down from a streaming service, but that decision is ultimately the record label’s.
For audio-only, non-interactive radio streaming services like Pandora and iHeart, artists can’t take down content in the U.S. but they have the right to do so in international markets.
Performing artists have fewer takedown rights for radio streaming services, at least in the United States. In the U.S., there is a statutory right for use of sound recordings in radio services. As long as the service complies with the defined rules to be a radio service, and pays the per-play rate defined every few years by the Copyright Royalty Board, artists cannot object to use of their music. (Songwriters may still have limited rights to remove their music from radio; see below). This law is specific to the U.S. Outside of the U.S., webcasting services must obtain blanket licenses from collection societies and/or record labels, and artists may have some withdrawal rights.
It may be easier for artists to remove content from video streaming services — with the help of their labels.
Artists may have more rights to take down music from video streaming services. The takedown would be accomplished through their record label. Video rights require an additional license — a synchronization license. Traditionally, synchronization licenses were obtained on a track-by-track basis. Social media services like TikTok and fitness companies like Peloton, however, have been obtaining blanket sync licenses from record labels for the distribution of sound recordings in user-created social media posts and in fitness classes. If the label knows that an artist does not want to be included, that artist would likely be placed on a restricted list in the license. Even if the artist is not specifically restricted, the label would have the right to withdraw content for artist-relations reasons, just as described above for the audio services. Therefore, artists do have a fair amount of control over when their music can be used in video services.
It is worth noting that platforms permitting user-uploaded content, like YouTube, have some additional protections for content under the Digital Millennium Copyright Act safe harbor provisions — but, if the platform wants to monetize the music, it will have to obtain a license from the record label and artist.
Meanwhile, songwriters have very limited rights to take down their works from audio streaming services.
Audio streaming services like Spotify need to clear two sets of rights in a songwriter’s composition in order to play their music. They need to clear the performance right through an organization like ASCAP, BMI, SESAC or GMR, and they need to ensure they have cleared the reproduction, or mechanical, right. Non-interactive, radio-style services like Pandora need only clear the public performance right.
Traditionally, there has been a statutory right for reproduction rights, allowing performers to record covers of songs as long as the songwriters were compensated. The record label distributors used to pay the fees to the songwriters, but, with the advent of streaming, the obligation to pay has shifted to the streaming services. In the U.S., streaming rates are set by law and administered by the Mechanical Licensing Committee. As long as the service registers and reports to the MLC, the songwriter cannot object to use of their songs via audio streaming. Outside of the U.S., the licenses are administered via collection societies and music publishers.
In the U.S., performance rights are bound by a consent decree that requires any company that requests a license to be treated the same as similar services, but the rates are still subject to negotiation. SESAC and GMR are not required to license. Therefore, an artist under SESAC and GMR may withdraw rights from a digital service by asking their PRO to withdraw rights. In order to take down performance rights from a streaming service that is licensed via ASCAP and BMI, the songwriter would need to withdraw their rights from their PRO. Prince did this in 2015 when he withdrew all rights from ASCAP and his music was no longer licensed anywhere — even on terrestrial radio. That being said, ASCAP and BMI do reserve the right to take down content from streaming services and would likely do so if they deemed it important for artist-relations reasons.
Outside of the U.S., the performance rights and reproduction rights are licensed via collection societies. In some countries, collection societies exclusively control performance rights, so songwriters would have a harder time taking down their music. In those countries, the songwriters would need to appeal to their country’s collection society.
Songwriters have more rights to take down music from video services.
There is no statutory right to use a song in a video. Here, a synchronization license is required and must be negotiated directly with the owner/administrator of the composition. That is usually the publisher. Traditionally, sync licenses were issued on a song-by-song basis, but some social media sites and fitness companies, among others, have negotiated catalog-wide blanket licenses for sync rights from the music publishers and other rights holders. These licenses are optional — the publishers are not obligated to grant the license. The music publishers may carve out specific writers from the license and also reserve the right to take down a songwriter’s works at any time. Even if a publisher has full control over the composition, they will often honor the interest of the songwriter and take down the content at the songwriter’s request.
Now that many songwriters are selling their catalogs, they do not always still have the same level of control over the use of their songs in video services and otherwise. The new owner of the songwriter’s compositions can make those decisions. Nevertheless, songwriters do still have more control over takedowns from video services than they do from audio services.
Elizabeth Moody is chair of the new media practice at Granderson Des Rochers and reps Hydrow, Liteboxer, Triller and several NFT platforms. She serves as general counsel to Wave XR, and was previously vp global content licensing at Pandora and head of strategic partner development for music content at YouTube.
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