The Story of Kerry Muzzey, Reluctant Artist-Advocate
by Neil Turkewitz
When I heard that composer Kerry Muzzey was coming to town to participate on a panel entitled “Realizing the Value of Ideas” at the Center for the Protection of Intellectual Property at George Mason’s Law school’s fall conference, I jumped at the opportunity to sit down with him and talk in greater detail about his personal experiences in trying to address online infringement and to capture the value of his work. Here are my notes of our exchange:
Me: To begin with, can you please say a bit about who you are and what you do?
Kerry (KM): I am a composer and my goal was always to be a film composer or to score TV shows. While I worked towards making that happen, bit by bit and small gig by small gig, I was living in NYC and also working on the business side of that world, first doing sync licensing at a major music publisher, and then working in rights and clearances in the business affairs department at a TV network. That job experience working in the real world of copyright and licensing and performing rights organizations (PRO’s) and royalties is something that would come in really handy for me down the road. When I quit my TV job in order to make the leap to full-time composer, I had a ton of experience on both sides of the table, including having worked with some amazing IP attorneys, which was an awesome education. And having worked in publishing, it was easy for me to handle my own licensing — which meant I could administer my own publishing and masters. I was a one-man publisher and record label and I owned everything I did, all in. I also write under the pseudonym “The Candlepark Stars” which is a different style from my usual score stuff: more like cinematic post-rock than film score.
Me: Fascinating. You were ahead of your time in cultivating a DIY career and handling — or at least directing, all your artistic and business issues by yourself. Can you explain more about how you came to focus on how online infringement was interfering with your ability to sustain your art?
KM: I had some great placements on popular TV shows in 2009 — 2012, and that’s actually what led me to YouTube thinking “I wonder if anything will turn up if I search my name?” And I found 40 or 50 videos — mashups and tributes from these shows, montages, things like that — nothing that bothered me and nothing that I ever would’ve taken down. I thought it was cool that my name turned up in any results at all — I was new to the world of being a full-time composer and I looked at this like you’d look at fan videos: it’s great that someone noticed the music and made a montage from the show with my music as underscore. I assumed that those 40 — 50 videos were all that there were on YouTube because people obviously would’ve credited me for the music (making my name searchable) in any videos they made, right? Oh how wrong I was.
A friend at a music library told me about Content ID (CID) which was YouTube’s music fingerprinting system that would scour their entire catalog of videos looking for your music. It took a while for me to get approved for access, and once I got in I was expecting to find the same results that I found by searching my name: 40 or 50 videos. What I actually found knocked me for a loop. In the first hour alone CID found 200 videos. By the end of that day it was up to 1000 videos. By the next morning it was up to 2000 videos. By the end of that week? 10,000 videos. By the end of my first month in Content ID? 20,000 videos. And these weren’t kitten videos: these were TV commercials and corporate videos, videos for the luxury hotels you wish you could afford to stay in but can’t — commercials for the cars that are in your driveways and the food products on your shelves and the bottled water in your fridge, airlines, the Fortune 500 companies that are at the top of the stock market— and tons of foreign TV series and promos — the list goes on. So now, 6.5 years into my use of CID, I’m somewhere between 100k-120k videos in total. The dashboard only holds about 26,000 at a time and YouTube isn’t able to tell me exactly how many have passed through it but I’ve loosely kept track. So I use 110k as my current figure.
Me: Wow, that’s an astonishing story, and one that diverges quite a bit from the narrative spun by defenders of the status quo who like to portray online infringement as harmless and empowering citizen creativity. What do you tell people when they ask about the impact of piracy on your career?
KM: There’s nothing harmless about the infringements I’ve discovered through Content ID: these have been small businesses, corporations, churches, political campaigns, right-wing organizations, fundraising roadshows for right-wing social causes, videos by known hate groups, nonprofit orgs making fundraising videos, short films that people make and sell or rent on Amazon — the list goes on. Last year I did put together sort of a master list of infringement claims going back to 2013 and the results were shocking: no wonder I’ve had so many sleepless nights since starting to use Content ID! When you put it all in a list it’s a lot to absorb. Some claims I’ve been able to settle myself but I’ve had to use lawyers to settle the bigger ones, because the large companies just ignore your tweets or emails or cease and desist letters — that’s a common tactic. They won’t reply unless the claim comes from a law firm.
The money part aside, the thing that people don’t realize is the mental and emotional toll it takes on you to spend half your day, every day for 6+ years, chasing down people who have stolen your work and used it to make money. I wish I could say I’ve become desensitized to it but honestly it just gets worse: that weight never lifts. I’m not a corporation, I’m just a guy. I’m a small business: I’m self-employed, I pay my quarterly estimated taxes, and I see the hit these things take on my income — and I feel the frustration of being a small business whose government isn’t helping me. This shouldn’t be happening to me and the frustrating thing — aside from the massive amount of theft of my music — is that there’s no support system that can help me. Our laws don’t work, this isn’t something our government cares about, and because most indie folks don’t use CID or AdRev or fingerprinting technologies, they don’t realize it’s happening to them too — so sometimes I feel like I’m the only voice that’s screaming. I’m basically a whisper in a hurricane. The thing is, when I hear anti-copyright folks talking about this stuff they seem to come at it from the standpoint of “it’s a harmless kitten video, you should be lucky they found your music” — but these people wouldn’t have any knowledge of what kinds of uses I’m finding because they can’t see my dashboard and I don’t publish a list of “here are the 50 unlicensed uses I found today.” 6.5 years after starting to use Content ID I still find 25 — 50 videos every day, and I have yet to find a single kitten video that uses my music! Massive Fortune 500 companies? Yeah, found those. No kittens yet though.
Me: Again, that’s eye-opening Kerry. Thanks for sharing, and on behalf of humanity, can I say I’m sorry? I think it’s really important for people to understand the reality of online infringement rather than just a narrative related to political positioning on the nature of innovation and even on the meaning of freedom. Can you tell us more about some of the infringing uses that you have discovered in your attempts to expand licensing?
KM: Some examples of unlicensed uses I’ve found:
- 2 Luxury hotel chains in the EU/Middle East/Asia;
- 1 of the largest hotel brands in the world (a US chain!)
- 3 Luxury car commercials;
- 3 commercials by one of the largest food brands in the world;
- 1 of the top 10 largest companies in the world (& based in the US);
- 1 very fancy bottled water brand
- China’s 5 largest TV networks;
- 3 political ads (TV & web);
- Series of 5 luxury tourism commercials in the US that ran on cable in the US for 5 years before I discovered them; &
- Approximately 6000 individual unlicensed music uses in TV programs in Germany, Italy, France, Netherlands, Spain, Switzerland & Austria.
Me: Well okay then…I wasn’t really expecting that! And again — this is a very important part of the real story of the life of a creator and the effects of infringement. We’re not talking about dancing babies. Or maybe more to the point, perhaps we are talking about dancing babies, but in commercials using your music to sell diapers. I think this part is clear. In your case, as with many independent creators, your problem isn’t getting noticed, or the terms of your deals with other parties and the relevant splits — it is that commercial actors are using your work (which they found valuable) without paying for it. Terribly uncomplicated. I think we’ve covered that. Can you tell us a bit about your experience with tools like ContentID (used by YouTube) or AudibleMagic (used by Vimeo)?
KM: The videos I find on YouTube via ContentID sometimes have millions of views on them before CID locates them & reveals them to me. YouTube doesn’t allow you to monetize retroactively, so during whatever time you didn’t have a music claim on that video, YouTube and the uploader were able to co-monetize the video that had your music in it. So far I have identified 97 million views of videos with my music in them, representing 303 million minutes of watch time. Those 97 million views happened before Content ID located my music in them and under YouTube’s policies, I can’t monetize them retroactively — so YouTube and the uploader made a small fortune in ad sales on those videos, but I got nothing.
In general, I don’t use Content ID to monetize though, I use it to police and I issue takedowns on all unlicensed uses. Often the uploader will file a false counter-notification to reinstate the taken-down material. Sometimes they even admit in the counter-notification itself that their music use is unlicensed, but that doesn’t matter: if I don’t show YouTube evidence within 10 days that I have obtained a court order against reinstating that material, they reinstate it and it goes back to being co-monetized between YouTube and the uploader. This is the kind of DMCA abuse that nobody ever talks about, and it’s rampant in my world. And worse yet, it’s abuse that’s enabled by our current laws and the lack of adequate accountability for platforms when dealing with clearly infringing material.
When a video is taken down, YouTube offers the uploader a button to click “click here to counter-notify” and then the user is provided with a drop-down menu with 2 choices: 1 is “I have a license for this material” and the 2nd is “This use is fair use under US Copyright law.” As an independent artist, I can’t afford to file a lawsuit against every false counter-notification, so any uploader who does that essentially gets off the hook even if I have their admission of guilt in writing, usually in the body of the actual counter-notification that YouTube is supposedly reviewing by hand.
As for Vimeo, with most focus being on YouTube because of its monetization aspect, Vimeo rarely comes up in this conversation. It is a high-quality video hosting platform: used by professionals, corporations, etc. for hosting and embedding. Vimeo does not have Content ID (an Alphabet/Google product) but employs music identification technology Audible Magic (AM) to screen 100% of uploads to its platform. I use Audible Magic as a music owner. If Vimeo/AM detect my music upon upload, that uploader is asked to show a copy of their license. However, if the uploader doesn’t have a license, they are allowed to make a fair-use argument to Vimeo directly. Vimeo then makes the decision as to whether or not that is a legitimate fair use and if they deem it a fair use they allow it to go live. Important: there is no notification component to me, the music owner, from Vimeo or from Audible Magic: I have no knowledge of the upload or of Vimeo’s fair use decision that was made on the usage of my music in that video. The whole thing happens exclusively between Vimeo and uploader. It’s not like Content ID where I see the use in a dashboard.
I’m really encouraged by Vimeo’s use of Audible Magic as an upload filter to protectively address infringement, but there are some continuing significant concerns. First of all, I’ve found many uses of my fingerprinted music that never got detected upon upload and these were uses where a piece was used in full (3 — 6 minutes long) and where music was the only audio, no obscuring voice over or effects, and the music wasn’t pitch- or time-shifted. Secondly, based on my experiences, Vimeo will accept just about any fair-use argument without adequate scrutiny. I can recall one use where a dance company did a performance to one of my full 6-minute pieces (live show, admission charged, they didn’t get a grand rights or master recording license) then put the edited version on Vimeo. It got stopped at upload, Vimeo asked to see their license (they didn’t have one), they told Vimeo it was a fair use because it was educational and it taught the viewer about dance. Spoiler: that’s not fair use! The only way I found it was that they credited my name in the info field along with that fair use language that people cut and paste all the time — but I noticed an edit in the video that made the total length 3:30 instead of 6:00, which was a strange edit. When I did a takedown they emailed me and said that Vimeo told them it would be a fair use if they shortened it and didn’t use the whole composition, so they edited it down from 6:00 to 3:30 and then Vimeo allowed it to go live. That’s so far off-base from an actual fair use that we need a new term for “fair use abuse.” I think that Vimeo’s process is a good one, but it would be greatly improved by providing notice to the copyright owner and permitting us to challenge the assertion of fair use. I understand inaction by Vimeo in close cases, but there are far too many cases of clear infringement that could be resolved through even a small amount of process and transparency.
Me: Thanks Kerry for that clear and powerful look under the hood. I hope that it will be widely heard, and that it will inform debates that too frequently ignore facts in favor of ideologies. And again, I apologize that you as an artist are forced to ignore your craft and spend so much time trying to defend your rights. We in the public policy arena have failed you. I have failed you, and for that, I can’t tell you how sorry I am. Hopefully it will not always be thus. I really appreciate the time you have taken, and your willingness to engage not just on your behalf, but for all creators struggling to realize the potential of the internet to sustain the arts. Any last words?
KM: When I talk about this privately with people they always arrive at the same question and try to find the most polite way to ask it, which is “You’re not famous, so how did all these people find your music in the first place?” And they’re right, and that’s a great question! It took me a while to figure out but eventually I put the pieces together and I even had one videographer in China confess. Some uses did come from people downloading my music from iTunes or Amazon, but the majority of uses that originate outside the US came from torrents: Epic Music Torrent, Film Score Torrent, Great Wedding Video Music torrent, Emotional Music torrent, SoundCloud SiteRip torrent — my stuff was bundled into torrents or was hosted on pirate Russian download sites. It was all easily Google-able if you were looking for it. This is why I’m always encouraging other composers and indie musicians on Twitter to get AdRev or some sort of fingerprinting service. They may think “I’m not anyone famous so my stuff probably isn’t out there” — I thought the same thing! — and I’m here to tell you that your music is out there, and not in kitten videos but in commercial videos.