Updated: A New Twist on Artist Consent Provisions: Protect Your Right to Say No to @mcdonalds ads on pirate sites
A recent blog post on The Trichordist has sparked some debate about how much artists can control advertising on pirate sites that rip off their work. This post will consider contract rights that artists have and how these rights to approve advertising can achieve that end. A particularly important topic raised by Ari Emanuel at the recent D10 conference.
It has long been accepted practice in talent agreements to give artists consent rights over how their recordings are used in commercials, certainly during the term of the artist agreement and after the term if the artist is recouped. Even if the artist is unrecouped, there are some categories of advertising that are verboten and that list has grown over the years–certain drug products, so-called “feminine” products, political advertising, tobacco advertising, alcohol, and a few others. A comparable provision relates to motion picture, television and videogame licenses based on the rating of the movie, show or game.
These clauses are contractual reactions to artists who do not want to be associated with certain products or the creations of others who invoke certain behaviors that the artist finds offensive and at odds with their brand. Another way to look at these provisions is that they sound like “moral rights” (especially the right of “integrity”) but are expressed in a private contract right as opposed to a public law proscription.
While particular provisions may vary, these contract rights represent years of table pounding by artist representatives who came before, and are now pretty standard gives, so standard that they are often in the first draft of a recording agreement.
What is now becoming alarmingly common (as we noted here on MTP recently), unlicensed song lyric sites rip off a song’s lyrics (violating the songwriter’s copyright interest and undermining the value of the “lyric reprint rights” and sheet music rights of the songwriter). These illegal sites wrap song lyrics in equally illegal photographs of the artist and often have links to videos that the artist may have voluntarily placed on YouTube. (It seems that YouTube is the only video site these people link to.)
So far, this may sound like an unauthorized fan site, right? Except that in every case we have looked into, Google has reportedly indexed over 500,000 pages at each of these sites and the sites boast of hundreds of thousands of lyrics in a searchable index. Does this look like a fan site?
Another way sites like Lyrics007 differ from most fan sites is that they sell advertising–lots of advertising.
According to Webdetail.org, “Lyrics007.com has an estimated value of $ 999,354 USD and receives about 432,594 pageviews per day. The site has Google Pagerank of 5 and ranked # 2,433 in the World based on Alexa traffic ranking. This domain is currently hosted by SoftLayer Technologies with IP address of 220.127.116.11 on the server that is located in United States. With nameservers: dns7.hichina.com dns8.hichina.com. And has Adsense Publisher ID: pub-0919305250342516.”
In order for the site to publish advertising, the site must have a deal with an adserving company. In the cases we have seen so far, the adserving companies publishing advertising on these pirate sites ultimately resolve back to a Google address through AdChoices (which Google joined reluctantly it seems) and Doubleclick, owned by Google. (Ad Choices is an industry group that some think was put together to avoid regulation but which actually does a pretty good job of masking where a particular ad is coming from at least on a quick review.) AdChoices is an icon and brand that’s associated with a process rather than a particular adserving company, several companies use it. However, if you hover over the “AdChoices” icon, you can see a link–that link is pretty convincing evidence of who is serving the ad. Try hovering over AdChoices ads on Lyrics007–all the ones I tried it with resolve back to Google or Doubleclick (owned by Google). Try the same thing on Yahoo! or MSN.com (two other users of AdChoices) and you will see the link resolves to a Yahoo address or to a MSN or Microsoft address. So–and stay with me here–even if you see an AdChoices logo you can still make a very educated guess as to who is actually serving the ad to the pirate site–and making the money, of course. In this case, if Webdetails is right, it’s actually easier because we already know the site’s Adsense publisher ID (which is how Google knows who to pay their share of ill gotten gains…I mean advertising revenue).
And then of course you can look at the source code on the page which also tells you the AdSense publisher ID:
So Google indexes the pages, includes the pages in search, then drives traffic from search to these illegal sites where they sell advertising based on CPMs derived from traffic that Google drives to the site.
The advertising published on these sites is not low end or shady products–Google advertises its own Google Play music service as well as brands like McDonalds, Levi’s, Macy’s and Google’s own Chrome web browser. When the fan sees advertising of quality products like these on a website, it adds to the “legitimacy” of the site because the fan–rightly–says to themselves that it must be OK or McDonalds wouldn’t be advertising there.
So how does this phenomenon relate to artist consent over advertising? As you can see from the screen captures on these lyric sites (and the same is true for many other pirate sites), advertisers are connecting their brands to the artist’s name and the title of the song the artist recorded and probably wrote or co-wrote. This is not very different from using the artist’s name in the actual advertisement itself or an “implied endorsement” of the product. While there’s not much the artist can do to actually stop Fortune 500 companies from profiting from piracy (directly in the case of the adserving company), the artist can refuse to do business with the offending company and point out to whoever will listen how the company’s shortcomings let to the juncture.
In an even more complex example, one blog found that Brandi Carlisle’s new album was being advertised on a pirate lyric site. I don’t believe for a second that Brandi Carlisle or her label had any idea that the ad would show up on the pirate site. They probably have a deal with Google to advertise the record, and Google decided to serve the ad to publishers in their network and could care less whether the ad shows up next to lyrics from a song by another artist that were ripped off.
It would not be a very big leap for artists to include in their recording agreements and touring agreements a provision that prohibits the record company or tour promoter from advertising the artist or a tour with the artist on websites that promote illegal activities. (See the screen capture below with an ad for the Warped Tour.) A further step more appropriate to the touring context would be to prohibit the tour from taking sponsorships from companies like McDonalds, Verizon and Levis that advertise on pirate websites, knowingly or unknowingly.
Will all artists have the leverage to negotiate these provisions? No, they won’t. But 50 years ago only a very small handful of artists had the power to control their music being used in commercials–now practically all do.
When artists stick together, eventually they get justice.
PS For an important and eye opening discussion of the rights of advertisers to control how their brands are used by companies like Google, see Harvard Business School Professor Ben Edelman’s excellent piece “Toward a Bill of Rights for Online Advertisers“
If you want to call McDonalds you can reach them at:
McDonalds Global Communications
Office: (630) 623-3678 Facsimile: (630) 623-8843
Heidi Barker Vice President firstname.lastname@example.org