Michelle Phan countersues Ultra Music, claims music was "irrevocably licensed"

From Ultra Records v. Michelle Phan to Michelle Phan v. Ultra Records. The YouTube star, her channel has almost 7 million subscribers, was sued by Ultra Records in July over the unauthorised use of the label’s music as a background to her videos.

In the countersuit, Phan maintains that she did ask for permission to use Ultra’s songs back in 2009. The label’s New Media Manager Jason Kilgore had responded by saying “really happy to see you supporting Kaskade,” and that Ultra was “more than happy to let [Phan] use this content.” On her part, she offered to credit the artists and add a link to iTunes to purchase the featured tracks.

Kilgore went as far as saying that he would release her videos from YouTube’s automatic claims via Content ID when they came up and repeatedly thanked Phan for her use of Ultra’s music characterising the use of iTunes link in the description at the beginning of the videos as “…the perfect way to incorporate any of our videos.”

Phan claims first of all that there was an implied consent for the use of the music since Ultra had allowed it to remain on her channel for - in some cases - years. Ultra with its actions could have “irrevocably licensed” its music for her videos.

Second she claims that Ultra issued takedown notices to YouTube in bad faith, misrepresenting that her use of the tracks as infringing and is seeking damages for this.

Third, Phan claims that Ultra’s bad faith was designed to disrupt her contractual relationship with YouTube in regards to the YouTube Partners program which is an important source of income for her. Ultra’s actions are characterised as being taken with fraud, oppression and malice and that punitive damages should be awarded to her as a consequence.

If Phan has proof of all the electronic communications with Ultra as listed in the countersuit this could go on to be a very interesting - and protracted - legal battle.


(Andrea Leonelli)