Is MySpace Stealing Your Music?

by Moses Avalon, MySpace has become the defacto way to promote independent music on a budget. There are thousands of music pages on MySpace and according to recent accounts, A&R people are now using it as a significant resource to discover new acts. Case in point: UK band Arctic Monkeys, were "discovered" through MySpace even though they claimed publicly that their MySpace page was unauthorized, set up by fans and that they were not even aware of their own page's existence.

According to Wikipedia "MySpace has gradually gained more popularity than similar sites such as Facebook, Bebo, Friendster, Xanga, MyYearbook, FriendsReunited.co.uk, Classmates.com and LiveJournal to achieve 80 percent of visits to online social networking websites."

But I've received several panicked emails wondering if this rumor about giving up rights to music in exchange

 for use of the service is true. In my gut I knew it could not be, but I never settled for just my gut when writing these missives, I get back up. I asked my list of industry lawyers what they thought. Any guesses as to the answer?

CAN YOU CLICK AWAY A COPYRIGHT?

The first issue to address is the click-to-agree "user agreement." Can you actually transfer a copyright in this way without any exchange of money? The simple answer, according to my attorney-affiliates is, theoretically yes, but in reality, probably not.

By law, a copyright, like most real estate, can only be assigned in writing. While recent cases have shown that clicking an on-line agreement is the legal equivalent to "getting it in writing," this is not absolute. Also, there is another aspect to the assignment of copyrights

So, for example, if you had music on MySpace and you wanted to grant rights to that same music to a major label and MySpace then came out of the woodwork to assert ownership over the content, could they get away with it? To do so, they would have to make the argument that the service they offer is "reasonable and valuable consideration" and that you fully understood that when you innocently (and without the advice of a lawyer) clicked "yes" to the user agreement, you KNEW that were assigning them your music in exchange for their "service." [Section 205 d of the Copyright Act.]

Seems like a stretch. Unfortunately, because, "dumb musician" is not a real legal defense the, "I didn't know," excuse is a serious gamble that will hinge on how good your lawyers are, and/or how sympathetic is your judge.

My personal take is that even the late Johnnie Cochran would have to argue his ass off to get a Federal judge to coldly agree that giving up valuable (or even valueless) copyrights is a fair exchange for a free web page. (If it doesn't fit you must remit.) But some of my legal watchdogs warn that I should not give readers the impression that money NEEDS to change hands in order for you to ACCIDENTALLY click away a copyright. However absurd it might seem, you can assign a valuable song without ANY exchange of cash, even though it happens very rarely.

Bottom line: read the fine print BEFORE you click "yes" to the user agreement.

BUT IS THAT WHAT IT REALLY SAYS?

The good news is that there is great misunderstanding about what the MySpace language user agreement says. Here's the clause:

"You hereby grant to MySpace.com a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicenses) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services."

Nothing in there implies a permanent assignment of EXCLUSIVE rights. Therefore if a major label wants to pay you for the recordings posted on MySpace you can still take their money in good faith. (Such is NOT the case with certain digital distributors who take exclusive rights just for the privilege of delivering your songs to iTunes.)

Conversely, the language in the MySpace agreement is very similar to what one might find in a standard release for MTV, who keeps a catalog of unsigned music that they use for filler and background in promos. It's great exposures for an unknown act; the artist gets no money for this license and MTV gets to exploit the music in any way imaginable, BUT THEY DON'T OWN IT. So if you're upset about the MySpace situation ask yourself this: if MTV wanted to use your music in a National add campaign for little to no money, would you say, "yes?" If you would, then you have nothing to fear with MySpace.

WOULD THEY STEAL IT EVEN IF THEY COULD?

A third and final thing to think about is that even if MySpace could legally claim they owned your music just for posting it on their site, would they do it? While no one knows the mind of another, I think I can say with reasonable certainly that they would not. The ill will it would create would utterly destroy the $100 Million dollar value of the overnight sensation.

MySpace was recently bought my Rupert Murdock. Rupert is a pretty smart guy. While his taste or style is something that you are free to criticize, this does not change the fact that like most Billionaires, Rupert likes a nice profit and probably does not feel like throwing $100 Million out the window. Because, $100 Million here and $100 Million there-- pretty soon we're talking about real money. Even one lawsuit about this matter would spread like a massive virus. The tastemakers would abandon MySpace and all that would be left would be the families posting photos of their kids and the child molesters who want you to be their "friend."

END NOTE: MySpace responded to the controversy eliminating all doubt about assignment of copyrights. They amended the user agreement with, "MySpace.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, 'Content') that you post to the MySpace Services. After posting your Content to the MySpace Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose."

Nuf said. Post away!!!

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