Zoe Keating

Zoe Keating

Claude Shade

Update, Jan. 29, 2:58pm: YouTube reached out to Billboard to clarify some of Keating's statements in this interview. You can read that here.

Zoe Keating wants control of her music. A cellist based in Northern California, Keating has tried to be an unstoppable force while running into an immovable object, YouTube. This isn't a story about streaming royalties. It's about Keating's desire to choose how and when she releases her music to the public.

 

Keating is an independent musician in the truest sense. She owns her masters and publishing rights, takes a hands-on approach in selling and distributing, and writes about her experiences in the record business, often revealing an unusual level of financial detail about her royalties and revenue streams. Her last blog post set off days of online commentary and started a debate on the rights of artists against the demands of a digital service. 

Last week, according to her account, Keating ran into a problem with YouTube. For over a year, she had been unsuccessfully attempting to negotiate some of the provisions of the licensing contract YouTube sent to her in fall of 2013. The royalties neither pleased nor bothered her. Instead, Keating balked at some of the terms. Under the terms of the contract, Keating would lose her ability to select the time and place she could release her music. YouTube also wanted her entire catalog.

This is where the story gets confusing. According to Keating, a representative assigned to her from YouTube told her she must sign the contract or her official YouTube channel would be blocked. In response, YouTube has said Keating is wrong about channel blocking.

Keating isn't the first to publicly complain about YouTube's demands. Last year independent labels were angered by the new licensing terms YouTube had offered -- but not for the same reasons. While Keating is concerned about control of her music, independent labels were most concerned about the contract's financial implications. Labels eventually worked out "a very good deal" that left neither side happy, according to an executive with knowledge of the talks.

This "he said, she said" argument is made more difficult by the nature of its subject. Content licensing contracts of this kind are complicated, and discussion of them is limited by non-disclosure agreements. The complexity of this particular conversation is heightened by its numerous moving parts: the basic YouTube service, the subscription service Music Key, the ContentID system that manages and identifies copyright owners' content, user-generated uploads and artists' YouTube channels.

But: meticulous note-keeping helps back up Keating's version of the story. As a music partner, Keating had a direct line to YouTube, rather than being intermediated through a distributor.

A partial transcription of the conversation with her YouTube representative, viewed by Billboard, shows Keating was told her existing YouTube "content" would be blocked and she would be unable to monetize user-generated videos (fan videos, family parties with her music in the background, etc.) that utilize her music -- about 9,700 of them had 250,000 views in December -- if she didn't sign the new licensing agreement. 

"Wow, that's pretty harsh," said Keating. "Yeah, it's harsh," the representative replied.

Semantics and word choice could play a role here. Keating says her YouTube channel will be blocked if she doesn't agree to the new terms. Google's publicist has said any creator that agrees to YouTube's Basic Terms of Service -- this is not a content licensing agreement for Music Key, its streaming service, but the agreement all uploaders must digitally sign -- "will always be able to share videos on YouTube," perhaps through a different and unmonetized account. The YouTube representative said Keating's existing YouTube "content," not specifically a channel, would be blocked. It's reminiscent of Bill Clinton's infamous statement to a grand jury during the Monica Lewinsky scandal, "It depends on what the meaning of 'is' is."

There's another wrinkle: Keating's catalog could be destined for Music Key whether or not she signs the contract. According to Keating's best understanding, if she signs the content licensing contract but doesn't upload her entire catalog as required by the new contract, any video uploaded to YouTube containing her music and matched by ContentID will be included in Music Key. If she doesn't sign, those user-uploaded videos would also go to Music Key.

Confused yet? 

Regarding the future of your YouTube account, it seems like there's a disconnect between what the YouTube rep told you and what YouTube is now saying. Is that true?

I see only a few options here. My transcript of my conversation with my YouTube rep is pretty clear. I've been negotiating with them for a year. I've been curious when they would make a decision and when they would allow me to change the terms I'm unhappy about, or if they would just force me. I never knew which way it was going to go until last week. I didn't know if they would actually negotiate with me or what. But I did make a transcript of the conversation and I was very specific about that question. So if I do not sign the agreement, what happens to my channel? And she said "Unfortunately it would be dropped."

When you say agreement, what is the agreement you're speaking about?

It's YouTube's Music Services agreement. I'm a "music partner."

The only thing I can think of is why over all these months has the YouTube rep been telling me that? Especially because whenever I would ask her the questions, she would say, "Let me go find out." And she would go and ask her boss and come back to me [with], "Yeah, that's true." The whole thing took months and months and months because every time I asked a question she had to go find out. So there was never a time when it was just her telling me this. Even when we had a conversation last week, she was like, "OK, we're coming around to our last few partners here and we have to get you up to service or you're not participating."

You felt the interpretation, or how it was explained to you, was coming from the higher ups and not from your YouTube rep? 

Absolutely. That's been clear. I first got the contract [on] September 27, 2013. I had to sign an NDA to even hear about it. I started looking at the contract and there were a few paragraphs that I had some issues with. And I asked my rep in October [2013] -- I asked her if I could just strip those out. I didn't care about the pricing, which I thought was lousy but that's not my main issue. I was fine with signing everything but the content catalog commitment and the exclusivity issue, where I wasn't supposed to release on any other comparable service before releasing on YouTube.

So you asked for changes to those specific clauses, the issues you had with it?

I said I would sign the contract today if we just took out those clauses. And she replied, "No, it's all or nothing." It was not negotiable. 

I didn't hear about anything for a while. I don't know if she was talking to her people. It wasn't until spring of 2014 that my rep got in touch with me again and said she would like me to have a meeting. So I had a phone meeting with a bunch of people. Vivien Lewit [Director of Music Partnerships, YouTube] was one of them. Dan Abel [Music Partnerships Manager at YouTube]. They wanted to hear my concerns because they didn't understand them. 

At no point had any of this been like contentious. It was like, "You know, this doesn't really work for me and let me tell you why." They said, "Tell us how your world works." And then they wanted to hear why I had problems with the provisions. And that was the end of it. I didn't hear anything the whole summer, anything until a week ago.

My agreement says my entire catalog will be available to YouTube. Even if I don't upload it, it still becomes part of Music Key if users upload it.


Did you get any indication from them they would consider changing those clauses, or was this just a conversation to understand your concerns?

The only thing that was offered to me was -- my rep told me, she said, "We understand your concerns about these provisions. Google is not going to police them." She said, "You can sign the agreement and we're not going to police it."

Are you talking about the exclusivity?

Yeah. That was back in spring. My lawyer, I asked him what he thought about that and he said he didn't think it was a great idea to sign with a major corporation where you specifically do not intend to do what the terms say.

A week ago, when my rep contacted me -- I had considered at the time, "Well, maybe I'll just sign it and I won't give them all my content and I'll still continue to do iTunes exclusives. [My rep] said last week that basically… "The content you uploaded will be blocked." So that's my channel, right? This is if I don't sign the agreement. "But anything we can scan and match from other users will be matched in ContentID. You can track it but you won't be able to participate in revenue sharing."

So if users upload songs of mine and put my information in the description, they would identify it as mine and include it as part of ContentID. The other part of this is say I participate and sign the agreement, and I only upload five songs to ContentID. They will still continue to take in user content, because I'm a music partner. My agreement says my entire catalog will be available to YouTube. Even if I don't upload it, it still becomes part of Music Key if users upload it.

Yeah, it's not about royalties at all. It's about my right to control my catalog.


If users upload anything with your music, it becomes part of ContentID?

Yeah. If they can identify it from the description, the metadata or audio file as mine, it becomes part of ContentID, yes. Say I upload five songs to Music Key. That means I also have those five songs in ContentID. And then she says, "However," and this is the new part, "if a user uploads a songs I have not uploaded, and the user identifies it as my song, because the agreement says they'll have my whole catalog, they're allowed to put that into Music Key."

So either you put it in Music Key or, potentially, a user puts it in Music Key indirectly?

Right. Because participating means my music catalog is part of YouTube. That sort of lack of control really, really, really bugs me.

This looks like you're concerned about control. Royalties are not the issue here, or maybe not the main issue?

Yeah, it's not about royalties at all. It's about my right to control my catalog. Whenever you talk about that people say, "Well, it's all up there for free anyway," this is another distinction I make. I'm not on a major record label. I've never had a problem with file-sharing/piracy. That's not something that's been a problem for me. I mentioned this at my blog. It's one thing for individuals to upload my music all over the Internet. It's a whole other thing for a corporation to force me to.

The bulk of income comes from my core fans.


How important is it for you and your career to have that kind of control, to determine where and when you want to sell something?

I think when you have a smaller artist like myself, the bulk of income comes from my core fans. The ones who, when I release something, they pay $100 for it on Bandcamp. I will always release everything first on Bandcamp for my core listeners, and they will pay what they for it on that service. Then I upload it to iTunes. I think that having control over what people call windowing, for me, is actually much more important than it is for a large artist.

I look at my numbers every year. There are [fans] I call them the whales, the people who pay $20, $40, $50, whatever for an album at Bandcamp. Those are the ones that keep me going. Maybe they still will. But I feel like it's my decision to be exclusive in that way. 

What would it actually mean in dollars and cents and promotion value if you just put nothing on YouTube and left it as best you could?

Meaning there would be nothing by Zoe Keating on it?   

I think that having control over what people call windowing, for me, is actually much more important than it is for a large artist.


Your music might still be uploaded, right? But you would not be participating in YouTube. Would it make a big difference?

I'm not sure. I think it would if it were part of the Music Key. I don't want it to be part of Music Key. Maybe it would just be there as music videos [uploaded by users]. The actual revenue I get from ContentID is very small. That's not a reason to do it, I think. I mentioned on my blog that every month I get a quarter of a million Pandora spins that nets me about $325. YouTube is far, far less than that for the same number [of streams].

How would you compare the way your relationship with Apple compared to Google? What is it like dealing with those two companies?

Apple is very different. I have been very lucky in that whenever I have any questions or issues with the service or the uploading software or whatever, they're very prompt, they're very clear, they're very thorough. I can always get a human. My YouTube rep is usually there. But she and I only discuss contractual things. Whenever I've had any technical issues often they've been completely unresolvable because the software backend is something is so wonky. I have kind of a techie background and I feel like I can kind of make my way around it, but I don't know how those record label people do it. It's not simple.

I'm just doing what I've always done.


In your experience, do you think iTunes is more artist-friendly than YouTube?

When it comes to contractual issues, it's not secretive. The deal is very clear. The same percentage is true for every one. I got a little bit of a sense from the YouTube discussion last year that maybe some artists or some entities might be getting better deals than others. I wasn't sure about that. So it's true that iTunes is take it or leave it. Thirty percent, right? They take 30, you take 70. It's very -- that's all it is. Take it or leave it. But I actually feel it's kind of reasonable. The Google percentage is not as good.

Why did you write that blog post? Was it to get YouTube's attention or was it to spread the word to other artists about what you were going through?

I'm just doing what I've always done. A long time ago I starting writing. It seems like my position is often kind of unique. I don't fit in a bucket. I just starting writing about my experience as an independent artist both because that's always what I've done. I talk about my life and what's going on. And also it is a way to talk to other artists who might not hear it from any other source. I want them to get it from an unbiased source. I'm not trying to sell them anything.

Every time you write about something like this you get a ton of attention. Probably all around the world. I'm sure you see the articles and who covers this.

It's a surprise to me. It's a huge surprise. All I'm doing is saying the truth.

There's a lot of fear out there.


Back to the contract. So if you want to upload anything to your Zoe Keating channel, you have to sign this agreement, otherwise it's blocked. Now, YouTube says it wouldn't be blocked, but you've been told that otherwise?
 

Yeah. If I don't sign the new version of the agreement -- right now I'm under a version of the agreement I signed several years ago -- if I don't sign the new version of the agreement my channel will be blocked. If I do sign the agreement, my channel will not be blocked.

And if you do sign the agreement, your channel will not be blocked and you will be effectively fully participating in Music Key because you will have to upload your entire catalog, right?

Yeah. The rep said she's been offering some workarounds for the holdouts.

Have any of the holdouts contacted you?

No. I sort of had an idea that other artists in my position would contact me and we could be together, you know? But very few people do. I don't know if -- well, I have a better idea now. A lot of artists don't manage their own materials. And the people that do manage it for them, they don't want to burn any bridges. There's a lot of fear out there.

You say Google has so much power that people would rather not cause any problems?

Yeah, I think so. Nobody's said that to me, but that's my impression.