MBW Reacts is a series of analytical commentaries from Music Business Worldwide written in response to major recent entertainment events or news stories. Only MBW+ subscribers have unlimited access to these articles. The below article originally appeared within March’s MBW+ Monthly Review email, issued exclusively to MBW+ subscribers.
Sony Music just secured a monetary ‘win’ after suing an individual artist in a US court.
Sony sued Trefuego over his track 90mh, which went viral on TikTok and racked up over 170 million streams on Spotify before being removed from the latter platform in 2022.
90mh was based around a sped-up (aka ‘modified’) sample of the 1986 track Reflections by Japanese composer Hinata. Sony represents both the recorded music and music publishing for Reflections.
Trefuego must now pay Sony just over $800,000 in damages, according to a judgment from a Texas court. The judge in the case noted the oddness of an individual artist being sued for copyright infringement by a multi-national corporation, stating that while some “may query the wisdom of pursuing a claim against a relatively small fish” that didn’t render Sony’s “motivation improper or their lawsuit unreasonable”.
For me, however, the biggest significance of this case isn’t who Sony sued. It’s who it chose not to sue.
Written in the small print of the damages ruling against Trefuego, it was revealed that DistroKid was responsible for distributing 90mh onto streaming services.
DistroKid, which was not named as a defendant in the suit, now has to pay a $14k chunk of Trefuego’s damages to Sony – representing royalties generated by 90mh that the DIY distie hasn’t yet paid out to the artist.
Earlier this month on MBW, I published a report highlighting a list of other ‘modified’ tracks – mainly sped-up samples of Universal Music Group copyrights – that I’d found on TikTok. (Within 48 hours, all of the tracks I highlighted were conspicuously removed from ByteDance‘s service.)
Obviously, as with the case of Trefuego, a digital platform hosting ‘modified’ (sped up/slowed down etc.) music copyrights – without correct attribution – won’t delight the owner of these original copyrights.
This goes twice when the owner of said original copyrights no longer licenses that platform for any of its catalog (i.e. UMG and TikTok).
TikTok has been hosting a shocking amount of ‘modified’ Universal tracks: hence why UMG recently hammered ByteDance with over 37,000 individual takedown requests, affecting over 120 million videos.
The big question this poses, with the Trefuego case in mind: How did all of this ‘modified’ audio get onto TikTok in the first place?
It’s actually quite difficult to tell: Sounds on TikTok can either be uploaded directly by users as part of their videos, or uploaded as standalone audio tracks to TikTok’s library via third-party distributors like DistroKid.
That isn’t the case, however, over on Spotify.
To get your music up there, whether ‘modified’ or un-‘modified’, you have to use a third-party ‘middleman’ – whether it be a major music company like Universal Music Group, or a DIY upload service like DistroKid.
Now. Modified versions of copyrighted tracks are all over TikTok: Media monitoring/analytics company Pex estimates that around 38% of the music on ByteDance’s video platform is ‘modified’ in some way.
Yet a significant proportion of the very same modified music has, in the past, also made its way to audio streaming services like Spotify.
Towards the end of last year, Pex found over 1 million ‘modified’ tracks on audio streaming services including Spotify; every one of these tracks would have been delivered via third-party distribution platforms.
To the seeming credit of Spotify, this situation now appears to have been substantially cleaned up; many of the most popular sped-up songs highlighted by Pex last year no longer appear on the platform.
These now-deleted ‘modified’ tracks – which, crucially didn’t credit/pay the original artist – included a version of Coldplay and The Chainsmokers’ Something Just Like This with 12 million+ Spotify plays, and a version of Halsey’s Without Me with 6 million+ Spotify plays.
(Spotify’s house isn’t completely in order, however, judging by the artist ‘Hiko’ who has over 4 million monthly listeners on the platform… all thanks to sped-up/slowed-down, potentially AI-made, ‘covers’ of multiple hits by artists like Fleedwood Mac, Adele, Olivia Rodrigo, Stephen Sanchez and more. Spotify is also, of course, now exploring how to legitimately monetize the modification of tracks by users directly on its platform.)
What does this tell us?
- (a) There’s surely a very good chance that the distributors who ‘carried’ copyright-infringing modified audio to Spotify (before the recent clampdown) are also distributing this material to social video platforms like TikTok;
- (b) Universal Music Group must be watching very closely to see if there are ‘legitimate’ music industry companies profiting from ‘modified’ tracks that are based on unapproved versions of their own recordings. Especially if that material is going viral on on TikTok.
In turn, all of this triggers very serious questions about where DIY distributors sit between two well-known definitions in media law:
- (i) User-upload ‘platforms’, who are typically not legally expected to monitor the copyright legitimacy of every piece of media added to their services – but must offer tools/responses to ensure the swift takedown of content when informed of infringement;
- (ii) ‘Publishers’, who generally speaking are legally expected to monitor the copyright legitimacy of every piece of media added to their libraries.
If a record label, for example, licensed a track from a DJ that included an uncleared, sped-up sample of a previous hit recording, you wouldn’t be shocked to see that record label end up as a defendant in a lawsuit from the owner of the sample.
But what happens if this infringing track is distributed by a company like DistroKid, which services over a million tracks every month? Can DistroKid be reasonably expected to know when a user is uploading ‘modified’ music, via its platform, that blatantly steals the work of another artist without permission?
What if that track then starts bringing in substantial streams, and money, each month; would that make the DIY distributor any more liable?
According to the ‘Distribution Agreement’ that DistroKid makes every one of its 2 million artists sign… no, it would not.
An example quote from that near-8,000-word ‘Distribution Agreement’: “You shall indemnify and hold harmless, and upon our request, defend DistroKid [from] all claims, suits, proceedings, disputes, controversies, losses, liabilities, damages, costs and expenses… resulting from… any claim that the Recordings, Materials, data or information provided or authorized by you… violates or infringes the rights of another party.”
In a world where the DIY distribution sector is generating billions of dollars annually, while – as in the case of Trefuego – distributing ‘modified’ versions of major-label recordings, does that kind of wording fully indemnify these platforms against any copyright-wrongdoing?
Evidently, Sony Music felt it pointless to target DistroKid with its legal action over Trefuego’s 90mh. Sony instead focused its resources entirely on the individual owner of the copyright – the artist himself.
Thinking about it, I can’t recall many instances where the liability of DIY distributors for copyright infringement amongst their music libraries has been legally tested. One semi-relevant case that comes to mind is Round Hill suing TuneCore in the US in 2020, over the latter company distributing recorded cover versions of Round Hill compositions.
Round Hill claimed in its lawsuit that TuneCore owed it mechanical royalties for these cover versions, and that TuneCore had distributed these tracks “to their own servers and then to third-party download and streaming sites despite knowing that the Round Hill Compositions were never properly licensed”. The two parties later reached a private settlement.
More recently, in February 2024, the Donna Summer estate sued Kanye West and Ty Dolla Sign for the duo’s GOOD (DON’T DIE), which clearly sampled, seemingly without permission, Summer’s 1977 hit I Feel Love.
Summer’s estate named West’s own companies – Yeezy Record Label LLC and Yeezy SND – as defendants in its suit. The estate’s lawyers suggested that, to the best of their knowledge, these two companies “act as the record label and distributor of the infringing song”.
What’s important about this? It indicates these lawyers believe the “distributor” of GOOD (DON’T DIE) could bear some legal liability for its wilful exposure. (The assumption of the Summer estate as to the identity of West’s distributor probably isn’t correct: unless West has a direct distribution agreement with Spotify, Apple Music etc. he would have uploaded his track via a third-party service.)
Whether it’s Kanye West, Trefuego, or a sea of amateur ‘nightcore’ remixers on TikTok, ‘modified’ audio is becoming a serious blight for large music copyright holders.
Whether those large copyright holders will – or, more importantly, can – take action against DIY distributors to stem the spread of these tracks remains to be seen.
If they can’t? Follow this story to its logical conclusion.
In an age where 125,000 tracks are hitting streaming services every day, from millions of artists – the majority of whom use DIY distributors – could we be headed for a modern twist on the infamous ‘Napster Nightmare’?
Picture the scene: instead of the record industry suing hundreds of individual music listeners for copyright infringement… might it end up suing hundreds of individual music uploaders – just like Trefuego – for the same misdemeanor?
What a world.Music Business Worldwide
