Let’s say you’re practicing for karaoke night and you want to learn the lyrics to Bonnie Tyler’s “Total Eclipse of the Heart.” The internet provides you with many easy options to choose from. What might surprise you is that only some of these options are licensed and legal. In fact, the National Music Publishers Association (NMPA)—the trade group representing music publishers—asserts that over 50 percent of all lyric page views worldwide are on unlicensed pages.
That’s why the NMPA is targeting fifty prominent lyric sites that it contends have failed to obtain licenses for lyrics being reproduced and transmitted. NMPA has sent takedown requests to each site, with the promise of copyright infringement lawsuits if they fail to comply.
You might ask yourself: “How exactly do unlicensed lyric sites hurt artists? Isn’t it good publicity for fans to be able to read and learn lyrics to their favorite songs?”
Fist of all, we’re talking about the composition copyright (which encompasses lyrics, as well as the notes on the page), so it is less about what impacts the performer, and more about songwriters and publishers(though songwriters are sometimes also publishers and/or performers.) Historically, lyric reprints have been an important revenue stream for publishers and songwriters, so it’s not surprising that publishers would take action to defend their right to be compensated online.
Second, remember that there is no shortage of legal and licensed sites that provide fans access to full song lyrics while also compensating songwriters and publishers. LyricFind, a service which works with more than 2000 publishers and the Harry Fox Agency makes it quite easy for websites to obtain licenses for lyrics. They even provide a free licensing tier (with a built-in monetization scheme) for those that can’t afford to pay. Today, commercial lyric sites really have no excuse not to be licensed.
Third, it’s worth noting that this lawsuit seems tailored to target large-scale commercial sites, not fan pages or individual users. So, let’s be clear—this is not much like the controversial RIAA lawsuits against individual file sharers of the 2000s. Rather, the NMPA is targeting big companies, some of which are raking in large amounts of venture capital in part by monetizing others’ creative work without compensation. Rap Genius, for example, recently netted $15 million in venture capital; Popdust made headlines in 2012 for acquiring $4.5 million.
A sampling of the list of allegedly infringing sites reveals that many try to assure users of their legitimacy. Several include the disclaimer:”lyrics are provided for educational purposes and personal use only,” but this invocation is misleading, as it doesn’t supplant the need for a license—educational exemptions to copyright are narrowly tailored to classroom use and accredited institutions. Other lyric sites listed might claim “fair use” for the purpose of criticism/commentary as a defense. Popdust’s lyrics pages, for example, contain line-by-line analyses of republished lyrics. Rap Genius’s initial response to the takedown news, while not explicitly mentioning fair use, has focused on the site’s commentary functionality: “Rap Genius is so much more than a lyrics site! The lyrics sites the NMPA refers to simply display song lyrics, while Rap Genius has crowdsourced annotations that give context to all the lyrics line by line.”
However, the case for fair use in this instance may not hold water. Courts employ a four part test which to evaluates whether a particular use can be deemed “fair” (how the factors are weighted are up to the presiding judge). Here’s what they consider:
- the purpose and character of [the] use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
Even if the “critical commentary”offered by speculation on Miley Cyrus’s romantic travails results in a judge leaning on factor one, she’d still have to consider the others. The fact that these sites reprint entire songs probably eliminates number three. Courts have found that that while fair use allows for excerpts to be reprinted for the sake of criticism or commentary, the copying may not exceed the length necessary to achieve that critical purpose. (In other words, brief quotes, as you might find in a Pitchfork review are OK, but to print full lyrics to entire songs, you need a license.) And, because these unlicensed sites directly compete with those with licenses, they’re unlikely to satisfy number four.
Still, there are some critical questions that songwriters should be asking about these actions. If NMPA proceeds with lawsuits, and financial settlements or judgments result, songwriters ought to get a fair share of the money. Last year, when the NMPA won a $6.6 million judgment against LiveUniverse which ran the unlicensed lyrics sites lyricsdownload.com, completealbumlyrics.com and lyricsandsongs.com, there was no guarantee that any of these winnings ($12,500 per song) would be passed along to songwriters.
This is similar to an objection that we’ve had about many copyright infringement lawsuits on the sound recording side, dating back to RIAA’s lawsuit against Napster in 1999. As we argued in our Principles for Artist Compensation, “All monies received as a result of copyright infringement claims brought by copyright owners, or resulting from their covenants not to bring claims, must be shared with the musicians [including songwriters] who created the underlying works.” This dovetails with our endorsement of Fair Trade Music principles which call for “efficient and transparent management of rights and revenues derived from the use of our works. These standards must apply to all entities that license such rights, and which collect and/or distribute such revenues.” If copyright infringement lawsuits against lyric sites amount to a new revenue stream for major publishers, it’s important that the spoils be shared with songwriters.
On the other hand, there may be no need for litigation, as it’s possible that sites will comply with takedown requests and simply choose to do the right thing, making obtaining licenses part of their business model. If the result of these takedown requests is broader adoption of licensing by popular lyric sites, songwriters will ultimately stand to benefit. We’ll be watching closely.