An argument for the CASE Act

I got an email from the Electronic Frontier Foundation, whose work I admire and mostly support. In the email the EFF asked its supporters to call their representatives and tell them not to support the CASE act.

Roughly, the CASE act would lay out a new way for copyright holders to seek payment when their work is infringed by establishing a small-claims-court-like board inside the US Copyright office. Damages would be limited to US$15,000 for each infringed work and a total of $30,000 per claim. The law is meant to protect infringers from much larger monetary claims and to give the infringed a way to obtain compensation without having to mount a prohibitively expensive lawsuit.

My work pays for my family’s shelter, food and education and for my ability to keep writing music. The CASE act would give me a simple, inexpensive way forward when someone in the US steals my work and refuses to engage with me to execute a license to use my copyrights.

The EFF says that the CASE act will spawn an industry of copyright trolls who will file frivolous claims in order to make money off innocent people. Does the threat of copyright trolling justify limiting my ability to obtain compensation when my work is stolen? As I hear it, the argument is that giving corporations the ability to collect damages from individual infringers who aren’t doing harm is so great an evil that we cannot craft legislation that would allow individuals to bring valid claims against corporate infringers who are doing real harm.

Let me tell you some of my experience as an artist who earns a living from their work and whose work is often infringed/appropriated/stolen by entities who include it in their commercial projects without permission or compensation and sometimes even try to pass it off as their own. My work is supposedly protected by copyright law but when such an infringement occurs I have little recourse beyond sending a stern letter or attempting to shame them on social media. I would like to explain why, from my perspective, the CASE act sounds like a good idea.

What do I mean by “stealing”?

When I say “stealing” I am not talking about the hobbyist who puts my music in their climbing video. I am not talking about the young dancer who posts a video of her routine to one of my songs. I am not talking about the gamer who posts videos of their gaming sessions with my music as soundtrack. I am not talking about the wedding photographer who has my music as the soundtrack to their photography slideshow. I am not talking about my work used in a meme. In fact, I am not talking about most of the 22,000 third-party videos on Youtube with my music in the background. I don’t see any of that as stealing, I see it as a compliment. It says to me “I love your work and I love it enough that I did my own work to it and here it is for the world to see”.

These uses make me feel valued as an artist and help me feel that what I do is worthwhile. I enjoy hearing about them. I don’t love YouTube earning revenue from this love and appreciation and passing hardly any of that revenue on to me… but the appreciation itself is mostly wonderful. *

While legally most of these uses of my songs and recordings are technically infringing, I do not view these uses of my music as problematic and I do not block upload of such videos to YouTube.

Every now and then I will stumble on a usage that I find offensive, like a homemade anti-abortion video. I’ve gone through the take-down process and written to the creator of a video asking them to remove my music. It’s offensive to my moral rights as an artist, which are unprotected in the US, but because the usage does infringe my master and synchronization rights, I can have it taken down. I haven’t been tested on this thankfully, but I would not bring suit against an individual unless they blatantly refused to remove my music.

So, what is the “stealing” that I would use the CASE act for?

- Stealing is when someone writes asking to use my work, doesn’t accept the fee my licensing agent quotes them and uses it anyway.

- Stealing is when my work is knowingly used inside another work and my work is passed off as someone else’s.

- Stealing is using my work in something, charging for it and not crediting me in the hope I won’t find out.

Financial losses aside, I find these last two kinds of thefts emotionally devastating. When I learn of a funded production that used my music as an integral part and didn’t credit me, I feel such incredible sadness. I feel bereft, like something I care deeply about was taken from me. I feel taken advantage of. My first response is often tears. An infringement, particularly one from a creative production — artists stealing from other artists — is profoundly shattering.

Honestly, sometimes I feel so hurt I want to throw in the towel. For me, creating a piece of music is a laborious, time-consuming and often fraught process. My career is a constant hustle. I can’t survive on music streaming. Touring is expensive and logistically challenging. Licensing is half my income. I lie awake at night wondering if I’ll be able to keep this going long enough to send my son to college in 10 years. When someone uses my music without permission, claims it as their own and profits from it, I lie awake at night wondering if I’m making the right life choices.

Discussion around legislation is directed and flavored by the rhetoric of the groups lobbying for and against it. A narrative is simplified in order to funnel outrage and help each side rally support. The thing is, I often find that my circumstances and the circumstances of other artists I know don’t fit into these polarized narratives. Surely, I am not a copyright troll? I’m an artist who makes a living from my work. My work is often stolen and is supposedly protected by law, but in reality I have little recourse.

I know it helps to put real stories onto real people in order to make the argument less abstract. So, here are some of my real stories.

#1
I mentioned above that there are more than 22,000 videos on YouTube with my music in them. A large precentage of them are videos of dance performances and rehearsals and I don’t intervene for the vast majority of them. Yes, you can use my music in your school dance performance and put it in the video. I’ve always had a general policy that use in most academic settings of all kinds is a-ok (just please don’t imply I wrote bespoke music for your production. Credit me “Song Title” by Zoë Keating). And outside of academia, I know that most small dance productions are a labor of love and budgets are tiny or non-existent.

However, when something comes to my attention from a large funded company, with a substantial production budget, corporate sponsors, perhaps on an international tour, and they have used my work without permission or even credit — I then have my attorney write a firm letter, reminding them that they need to enter into a licensing agreement with me. I don’t charge any more for these kind of licenses than if they had approached beforehand, the only difference is that I don’t negotiate. They used the music and this is my price.

Most of the time, this strategy is effective. Over the last decade I have entered into licensing agreements with some of the major dance companies in Europe and America…. companies that you have probably heard of even if you don’t know much about dance. With the exception a handful of companies who approached me beforehand, in all cases I discovered the music usage accidentally and after the fact— because a reviewer recognized my music and my name popped up in the NYTimes or the Boston Globe and I got a Google alert. Once, the first time I heard of a ballet production was in a review that said “with an ill-fitting score by Zoë Keating”. I had never heard of the production! I may have agreed with the assessment of the reviewer, but that choice of how to use my music was taken away from me and instead my reputation potentially damaged.

Or, the time a friend heard my music in something at the Kennedy Center, and sent a photo of the program showing I hadn’t been credited. Or, ContentID caught a surreptitious video made of a dress rehearsal of a major national company. There are clearly many more uses that I just never learn about. A friend of mine who is a dance critic told me that my music is as popular in the world of dance as Phillip Glass’s music was 20 years ago. I would love to ask Mr Glass if he earned any revenue from this use of his music, because mostly I don’t.

Not only am I robbed of potential income, I’m robbed of opportunities when productions illegally use my music. One instance, ten years ago I was in Spain performing my works live with the Valencia Ballet. A choreographer who works with a major company in Paris visited during one of the rehearsals. He said “I didn’t know you could do the music live. I wanted to use your music in Paris but your music had already been over-used by too many lesser productions”. He said this in an imperious French way of course! So, not only has my music been used without permission, all that “exposure” has potentially limited my career opportunities.

Grand rights — as this kind of licensing is called — is a gaping hole in music licensing not covered by Performing Rights Organizations. I have to hope that when I learn about usage, a letter from my attorney will be effective in obtaining a license payment.

#2

Last year a fan who happens to be a well-known television actor sent me a message. He was in NYC for the weekend and enjoyed several off-Broadway plays. He congratulated me on my music being in two of those plays.

This was surprising because I hadn’t licensed my music to any plays recently.

One of them was a play called “Transfers” produced by the MCC Theater. The play was a success, with many positive reviews (including a full page review in the Sunday NYTimes that I remembered reading) and its month-long run extended by another couple of weeks. It turned out that the production used 5 of my songs as underscore. No one asked permission, I wasn’t credited or paid, some of the songs were remixed and — this is the part that made me most upset — the whole score including my music was credited to the sound designer.

My fan who happened to see “Transfers” saw another play that week that also had my music in it, “This Flat Earth” at Playwrights Horizons. Again, no permission, no credit, no payment.

My attorney sent a letter to the MCC Theater stating that the production needed to license my music and stating my fee. They wrote back offering $100 per week for use of the 5 songs and they removed the music for the remaining 4 shows of the production. I declined their offer since my rates are much higher than that and my licensing agent would have declined to license my songs for such a low fee.

Learning that I had a social media following and a tendency to blog about things that happen to me, the theater then offered me $4000 in exchange for my not writing or publicly discussing their infringement. I declined because 1) my legal fees from the back and forth with my attorney were already half that sum and 2) $4000 amount might be enough to license my music but… is there a large enough sum that would silence me on this issue, which I have come to realize is larger than me and my case?

Why is it larger than me? Because speaking with people in the world of theater I have learned that my music has been in many other plays, unbeknownst to me. What happened with my music might be “standard practice”: someone wants to use a particular piece of music, someone doesn’t clear it, it ends up in the production anyway, the composer and sound recording aren’t credited and the production doesn’t get caught. I was told it is apparently rampant in art forms that do not leave a video trail — like theater and dance performances where recording is prohibited.

Even if they are caught, productions know that while a lawsuit would hurt them, individual artists are unlikely to take that course and without a stick like the CASE act, this kind of theft will continue.

#3

THERE ARE SO MANY.

If you’d like me to list more I will be happy to — the museum exhibits, the online fashion magazine, the TV shows and films (although they always execute a license right away, perhaps because there is video evidence and long-term distribution rights at stake).

— —

You’re thinking, OK but she doesn’t need the CASE act, her letter strategy and willingness to blog, tweet, whatever, is fine. Not really:

1. The biggest leverage I have is my public voice. Once an infringing party realizes I can tell almost one million people on Twitter what happened, licenses tend to be quickly negotiated and payment executed. I don’t like using social media for this purpose but sometimes it’s the only power I have. I used it to get a news crew to my house when my husband’s cancer bills were rejected by the insurance company. The threat of public embarrassment can be effective where laws are weak or absent. However, it doesn’t always work and more importantly, a social media class system is not a substitute for effective laws! I take advantage of it but it goes against all my beliefs in fairness and democracy. It shouldn’t be true that only people with privilege — a Twitter following affords weak privilege but it is privilege nonetheless — can get their problems solved and other people can’t.
2. My letter strategy doesn’t always work. Sometimes the letters go unanswered. Sometimes the letter is answered and the party admits to the infringement but says “We already spent our budget, sorry”. Then, what? Yes, the law is on my side but what is my recourse? Am I willing and able to engage a litigator and find the money and time to launch a full copyright infringement suit?
3. My attorney can cost more money than some of the license fees I end up getting. I only ask him to engage with the larger companies who have a run of shows or used enough music to justify his cost, because going after every production would cost me a substantial amount of money.
4. I’m a full time artist and solo parent. I don’t spent my days looking for infringements. I used to peruse through the Youtube ContentID claims at most a few times a year to get a rough sense of what’s there. Even then, it wasn’t really possible because their system finds an additional two or three thousand videos a year. But I stopped doing it a long time ago because I’m too busy and when I do find something it makes me too sad. If something pops up via a fan report or a Google alert, I will forward it to my attorney and call it a day. I probably learn about a fraction of the actual funded productions that use my music.

What I would hope long-term is that the threat of filing a claim with the CASE act is enough to change the culture of this illegal usage. I don’t want to use this law to begin with! I don’t want to bring anyone to small claims copyright court. I just want them to engage with me to begin with and to license my music or…novel idea, maybe we could work together to make a new and better work? Lift each other’s boats.

I have a sense that all of this is part of a larger story: the story of the downward price pressure on the arts, of shrinking budgets and audiences. Maybe productions are cutting where they can and if they can save some money by not clearing the music…who would know? That’s just my theory. Would the CASE act help change those market forces or the mindset that music is not valuable and stealing it doesn’t matter? I admit I am doubtful.

The CASE act would not help me with illegal usage that happens overseas, which perhaps not coincidentally is the most blatant, maybe because those entities know I really can’t do anything other than embarrass them. There is the Chinese environmental documentary with me as the majority of the score that has had hundreds of millions of views on Youtube, or the South Korean and Ukranian television shows. Or the techno ballet staged at the London Roundhouse to my song Exurgency. Or the The Great Modernists: From Monet to Kandinsky mulitmedia exhibition that has traveled to Paris, Berlin, South Korea and is now in Riga. For things like this, the stern letters from my attorney tend to go unanswered although a couple foreign media companies have sent my requested fee without comment.

I am not a copyright troll. I am an artist. Infringement is not some imaginary crime, it really does hurt me. By law, when my work is used inside another work, permission must be obtained. When that law is broken, I need recourse if I choose to take it. I might not use it but I need a stick.

My question is, will the CASE act be that stick? And if not the CASE act, then why not and what is wrong with the legislation? If it is flawed, how should the legislation be changed to help artists like me?

I know this is a multidimensional subject and many people disagree with me. I would genuinely like to hear your thoughts. Please write a response, or send me a tweet at @zoecello.

Thank you.

• More on Youtube: By the way, those videos don’t earn me very much revenue, even though there are hundreds of thousands of hours watched a year. Youtube reports that 496,101 minutes of video with my music in it was watched in June but I earned $48.64. Why? Because the thousands of views are spread out across thousands and thousands of videos and YouTube has cut of that long tail of revenue. It no longer allows small-time creators to earn ad revenue until they reach a certain viewer threshold which means that I don’t earn the 35% of the revenue that goes to the sound recording copyright holder. 35% of zero is zero. But that’s a different topic.
• P.S. Dear Alamo Draft house, it’s been a while so maybe you have a new video by now but I think you had my song “We Insist” in one of those pre-movie Ssshh! videos for at least six years. No permission, no credit, no payment. A lifetime movie pass would cover it, thanks!