Music publishers appear to be on the verge of suing Spotify, alleging that the platform is infringing their copyrights through the widespread use of unlicensed musical works.
The NMPA demands in its letter that any unlicensed lyrics, music videos, and podcasts available on Spotify “be removed from the platform or Spotify will face copyright liability for continued use of these works”.
Within the letter, NMPA EVP & General Counsel, Danielle Aguirre, writes: “It has come to our attention that Spotify displays lyrics and reproduces and distributes music videos and podcasts using musical works without the consent of or compensation to the respective publishers and/or administrators (our members) who control the copyrights in the musical compositions.”
“Spotify thus appears to be engaged in direct infringement by hosting unlicensed musical works in its lyrics, videos, and podcasts, and by distributing unauthorized reproductions, synchronizations, displays, and derivative uses of these musical works to its users.”
Danielle Aguirre, NMPA
Aguirre adds: “U.S. copyright law generally grants copyright owners the exclusive right to, among other things, reproduce, distribute, display, perform publicly, and create derivative works from their copyrighted works under 17 U.S.C. § 106. Violation of these exclusive rights constitutes copyright infringement under 17 U.S.C. § 501.
“Spotify thus appears to be engaged in direct infringement by hosting unlicensed musical works in its lyrics, videos, and podcasts, and by distributing unauthorized reproductions, synchronizations, displays, and derivative uses of these musical works to its users. Making matters worse, Spotify profits from such infringement.”
Elsewhere in the letter, Aguirre refers to a ‘Remix‘ feature that Spotify is reported to have in the works. This feature could let its users create sped-up or slowed-down versions of songs.
“Spotify is on notice that release of any such feature without the proper licenses in place from our members may constitute additional direct infringement,” reads the letter.
NMPA’s General Counsel notes that “music is essential to Spotify’s service” and that “it is the reason subscribers utilize the Spotify platform every day”.
The letter continues: “Spotify’s primary use of musical works via interactive streams and downloads is subject to the antiquated compulsory license under 17 U.S.C. § 115 and consent decree-governed public performance licenses.
“Regardless of the mechanical and public performance licenses Spotify may have, however, the use of lyrics and music in videos and podcasts on its platform requires rights that must be negotiated directly with rightsholders in a free market.”
The NMPA’s legal warning against Spotify arrives at a time of high tension between the organization and the music streaming platform. This follows SPOT’s recent controversial decision to reclassify its Premium tiers as ‘bundles’ — combining music and audiobooks — in the US.
Under a 2022 legal agreement between music publishers and music streaming services, ‘bundle’ services in the States are permitted to pay a lower mechanical royalty rate to publishers and songwriters than standalone music subscription services.
Unsurprisingly, Spotify’s bundle trick has upset the NMPA and its publisher members. Speaking on the MBW Podcast on April 30, NMPA boss David Israeliteconfirmed that the situation will “likely end up in a legal conflict.”
“The bundling move is low, even for Spotify. This is always their move, though – acting like they’re friends with songwriters while knifing them in the back.”
Senior music publishing executive, speaking today (May 15)
To a degree, that potential legal conflict (over mechanical royalties and ‘bundles’) is separate from the legal threat that the NMPA has now sent Spotify over its use of lyrics, podcasts, and music videos.
It would be hard to argue that the two are completely unrelated, however.
Through a certain lens, the NMPA’s legal challenge to Spotify over lyrics etc. looks very much like music publishers fighting fire with fire RE: the platform’s mechanical royalties ‘bundle’ move.
On that topic, here’s what an industry leader in the global music publishing business said to MBW today when we called them to discuss the NMPA’s latest action, and the publishing biz’s general current relationship with Spotify:
“Spotify thinks it’s so clever looking for legal loopholes to cut songwriter pay. Sometimes when you are too clever, it blows up in your face.”
The exec added: “The bundling move is low, even for Spotify. This is always their move, though – acting like they’re friends with songwriters while knifing them in the back.”
Oof.
You can read the NMPA’s new letter to Spotify in full below:
I write on behalf of the National Music Publishers’ Association (“NMPA”) regarding copyright infringement of our members’ musical works on the Spotify platform. As the voice of our members, NMPA protects, promotes, and advances the interests of music creators and enforces the rights of publishers, and their songwriter partners, who own and/or control musical work copyrights.
Music is essential to Spotify’s service; it is the reason subscribers utilize the Spotify platform every day. Spotify’s primary use of musical works via interactive streams and downloads is subject to the antiquated compulsory license under 17 U.S.C. § 115 and consent decree-governed public performance licenses.
Regardless of the mechanical and public performance licenses Spotify may have, however, the use of lyrics and music in videos and podcasts on its platform requires rights that must be negotiated directly with rightsholders in a free market.
It has come to our attention that Spotify displays lyrics and reproduces and distributes music videos and podcasts using musical works without the consent of or compensation to the respective publishers and/or administrators (our members) who control the copyrights in the musical compositions. As such, these uses of musical works on the Spotify platform are not licensed or will soon become unlicensed.
U.S. copyright law generally grants copyright owners the exclusive right to, among other things, reproduce, distribute, display, perform publicly, and create derivative works from their copyrighted works under 17 U.S.C. § 106. Violation of these exclusive rights constitutes copyright infringement under 17 U.S.C. § 501.
Spotify thus appears to be engaged in direct infringement by hosting unlicensed musical works in its lyrics, videos, and podcasts, and by distributing unauthorized reproductions, synchronizations, displays, and derivative uses of these musical works to its users. Making matters worse, Spotify profits from such infringement.
Accordingly, on behalf of our members, NMPA demands that unlicensed lyrics, music videos, and podcasts be removed from the platform or Spotify will face copyright liability for continued use of these works.
We also understand that Spotify wishes to offer a “remix” feature allowing Spotify subscribers to “speed up, mash up, and otherwise edit” their favorite songs to create derivative works.Spotify is on notice that release of any such feature without the proper licenses in place from our members may constitute additional direct infringement.
NMPA further demands that Spotify preserve all electronically stored information (“ESI”), as defined by Rule 34 of the Federal Rules of Civil Procedure, along with any paper files, in Spotify’s possession, custody, or control that is relevant to use of our members’ unlicensed works. Spotify must also cease any auto-deletion operations affecting ESI relevant to this matter.
This letter is not intended as a full recitation of the facts or claims that may be made against Spotify by NMPA, its members, and/or other copyright owners, and is made without prejudice to all rights or remedies against Spotify and all others acting in concert with Spotify, including without limitation, monetary damages and attorneys’ fees as provided under 17 U.S.C. §§ 502- 505.
Sincerely,
Danielle Aguirre, EVP & General Counsel, NMPAMusic Business Worldwide
