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The saga between YouTube beauty guru Michelle Phan and Ultra Records continues with a new counterclaim filed by Phan that seeks damages for lost ad revenue because of Ultra’s original suit against her.
The record company filed suit against Phan in July over her alleged unlicensed use of their music, including a track by Grammy-nominated DJ Kaskade. At the time, Phan told TMZ Ultra had given her permission to use their music, and that her videos “showcased [them] to an international audience.” Now she’s launching a counterclaim.
In it, Phan “contends that she received from Ultra, Ultra’s consent to use compositions and master recordings by Ultra artists.” Phan is seeking compensation for ad revenue lost due to the Ultra claims, and “under controlling law, Ultra cannot revoke its consent.”
According to her counterclaim, in 2009 Phan emailed with Jason Kilgore, Ultra’s Senior New Media Manager, who wrote in an email that Ultra was “more than happy to let [Phan] use this content.” She says for five years she used Ultra music and credited artists with links to their iTunes, and during that time Ultra dropped any Content ID claims against her videos, allowing her to monetize them. In 2014 the relationship turned sour, as the label’s General Counsel contacted Phan over the videos and issued a DMCA takedown on 12 videos, losing Phan potential revenue when YouTube complied with those notices.
The case will hinge on whether Ultra has the right to change its mind about the permission it grants, even after years of implicitly allowing the use to go on. One thing is clear: Phan intends to settle this dispute in court. The final line of her claim reads, “Michelle Phan hereby demands trial by jury of this matter.“
A former YouTube reporter for the Daily Dot, Rae Votta has more than a decade of experience in the digital and entertainment industries. Her work has appeared on AOL, Huffington Post, Out Magazine, Logo, VH1, Current TV, Billboard, and NYMag. She joined Netflix in 2016.