On January 25, 2022, Neil Young posted a public letter addressed to his record label, Reprise Records, requesting immediate removal of his music from Spotify. Neil Young’s objective was to disassociate from the streaming service that provides a platform for comedian and actor, Joe Rogan, whose podcast, “The Joe Rogan Experience,” is currently Spotify’s most popular podcast. Allegedly, Joe Rogan signed a $100 million exclusive podcasting deal with Spotify in 2020. In his episodes, Joe Rogan has often criticized vaccine effectiveness and spread the idea that hospitals are financially motivated to falsely assign Covid-19 as the cause of deaths. Neil Young’s public letter, which was removed shortly after posting, stated, “I am doing this because Spotify is spreading fake information about vaccines—potentially causing death to those who believe the disinformation being spread by them.” He proceeded to declare, “They can have Rogan or Young. Not both.”
This tension arises in a period when private companies, like Spotify, are struggling to balance embracing differing opinions with protecting against Covid-19-related misinformation. In a statement on January 27, 2022, Spotify explained, “We have detailed content policies in place and we’ve removed over 20,000 podcast episodes related to Covid since the start of the pandemic.” Over 110 Joe Rogan episodes have been removed from Spotify for various reasons. Over forty were removed by Spotify in 2020 and 2021, including episodes with problematic guests such as Chris D’Elia, and conspiracy theorist, David Seaman. This week, Joe Rogan removed seventy episodes on his own accord, including episodes in which the podcast host used racially insensitive language. But none of his Covid-19 related episodes were removed.* Neil Young is not Spotify’s only critic with respect to the service’s misinformation policies. In fact, in an open letter issued to Spotify on January 10, 2022, a group of 270 scientists and healthcare professionals condemned Spotify’s promotion of “baseless conspiracy theories” and called for more specific action against misinformation.
Spotify’s discretionary choice to continue broadcasting Joe Rogan’s podcast cost the streaming service all of Neil Young’s music, save for miscellaneous live recordings.
Neil Young’s Inability to Remove His Music Independently
How much power did Neil Young have to effectuate the removal of his own music? Neil Young’s requests were legally meaningless without action by his record label, Reprise Records, which is owned by Warner Music Group. Like many artists, Neil Young does not have independent control over licensing rights to his music. Under United States Copyright Law, every song has separate ownership rights as a (1) musical work, and (2) sound recording. A musical work is a song’s underlying composition, including its lyrics. A sound recording is the combination of sounds fixed in a recording medium, such as a CD or digital file. Copyright owners of musical works and sound recordings own the work/recording’s rights to public performance and reproduction.
The underlying rights to a song recording are known within the music industry as a “master.” Often, artists will sign contracts with record companies, such as Reprise Records, in which the record label owns the masters and the artist benefits from an advance payment and a percentage of profits. Record labels subsequently grant licenses to streaming services, such as Spotify, to use the rights to sound recordings and musical works. The licenses required for Spotify to stream music include: (1) the sound recording digital performance right, (2) the musical composition performance right, and (3) the musical composition reproduction right (mechanical right). The right to public performance is implicated when songs are streamed on Spotify because a song is deemed publicly “performed” when a user selects the song and can immediately listen to it.
Fortunately for Neil Young, after requesting his music be removed from Spotify, Reprise Records quickly granted his wishes. But not all artists are equally lucky. For instance, in 2019, Big Machine Label Group sold the rights to all of Taylor Swift’s music to Ithaca Holdings. Taylor Swift had a poor relationship with the owner of Ithaca Holdings, but was stuck in a contract in which Ithaca Holdings profited off of her music. Relatedly, Kanye West has spoken out about record labels taking advantage of artists, tweeting, “When you sign a music deal you sign away your rights. Without the masters you can’t do anything with your own music. Someone else controls where it’s played and when it’s played.”**
Neil Young used his positive relationship with Reprise Records, and his musical legacy to make a statement about his disapproval of Covid-19 misinformation. But when artists do not independently own the legal rights to their music, as is often the case, such impactful decisions are not within their control. How much decision-making authority will artists in the future be willing to renounce?
* It is worth noting that the private actions of private entities such as Spotify do not implicate the First Amendment right to free speech. The First Amendment solely protects against government intrusion upon its listed liberties. Thus, had Spotify chosen to support Neil Young and exclude Joe Rogan from Spotify, this would not amount to a constitutional violation, but might carry social and economic repercussions.
**Kanye West was also criticized for hypocritically taking advantage of artists signed to his own record label, GOOD Music, but returned all musical rights to the artists.
Sources
17 U.S.C.S. § 106 (2021).
Annabelle Timsit, Spotify Says Joe Rogan Removed Podcast Episodes Amid Controversy Over Racial Slur, Washington Post (Feb. 6, 2022), https://www.washingtonpost.com/arts-entertainment/2022/02/06/spotify-joe-rogan-podcast-removed/.
Anne Steele & Gareth Vipers, Neil Young Demands Spotify Remove His Music Over Joe Rogan’s Vaccine Comments, Wall Street Journal,
https://www.wsj.com/articles/neil-young-demands-spotify-remove-his-music-over-joe-rogans-vaccine-comments-11643112990?mod=Searchresults_pos5&page=1 (Jan. 25, 2022).
Ben Sisario, Spotify is Removing Neil Young Songs After He Complains of ‘Misinformation’, New York Times, https://www.nytimes.com/2022/01/26/arts/music/spotify-neil-young-joe-rogan.html (Jan. 30, 2022).
Courtney Dec, The Rising Battle Between Music Artists and Record Labels, UB Law Sports & Entertainment Forum (Oct. 11, 2020), https://ublawsportsforum.com/2020/10/11/the-rising-battle-between-music-artists-and-record-labels/.
Eric Priest, The Future of Music Copyright Collectives in the Digital Streaming Age, 45 Colum. J.L. & Arts 1 (2021).
Jenny Gross, Neil Young Posts and Removes a Letter Demanding Spotify Remove His Music, New York Times, https://www.nytimes.com/2022/01/25/business/neil-young-spotify-remove-music.html?searchResultPosition=1 (Jan. 26, 2022).
Steven Asarch, Spotify Quietly Removed Over 40 Episodes of the Joe Rogan Experience Podcast, Report Says, Business Insider (Apr. 13, 2021), https://www.businessinsider.com/joe-rogan-experience-podcast-episodes-removed-spotify-2021-4.
Tiffany Hsu & Marc Tracy, On Podcasts and Radio, Misleading Covid-19 Talk Goes Unchecked, New York Times (Nov. 12, 2021), https://www.nytimes.com/2021/11/12/business/media/coronavirus-misinformation-radio-podcasts.html.
Tristan Bove, Neil Young Couldn’t Remove His Music from Spotify on His Own. Here’s Why., Fortune (Jan. 27, 2022, 6:58 PM), https://fortune.com/2022/01/27/neil-young-couldnt-remove-music-from-spotify-alone-music-label-heres-why/.
U.S. Copyright Off., Copyright Registration of Musical Compositions and Sound Recordings, Circular 56A, https://www.copyright.gov/circs/circ56a.pdf (Mar. 2021).
U.S. Copyright Off., Musical Works, Sound Recordings & Copyright, https://www.copyright.gov/music-modernization/sound-recordings-vs-musical-works.pdf (Feb. 2020).
U.S. Const. amend. I.