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?
Copyright Infringement or Fair Use?
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:
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.