The video “‘70 youths of African appearance’ rampage through Fair etc etc etc” opens with a graphic of a bearded man in sunglasses with a cigar hanging out of his mouth. A name flashes on screen: Colin Flaherty. Flaherty is a prolific YouTuber and writer who chronicles violence by African Americans, which, he claims, is a much greater social problem than violence against African Americans. Quick cut to live footage of Flaherty himself, similarly sunglassed, bearded, and lighting a cigar as he narrates the 13-minute video—a mash-up of news clips and cell phone footage, each of which he represents as evidence of “a large-scale episode of black mob violence.”
You might or might not have noticed the snippet of music playing behind the intro—set to a tune that sounds like the theme song for a villainous cartoon clown. The same track appears before many of Flaherty’s videos, including “Greatest Hits: Madison goes after the worst of the worst — THEY ARE ALL BLACK” and “GREATEST HITS – Proctor & Gamble talks about black lives matter. Fantasy vs Reality edition.” While uncredited in the videos, which have a total of more than 32,000 views, Flaherty told me that the musical track was “Comic Intro” and said that he had purchased it from AudioJungle, one of the largest of the dozens of royalty-free music marketplaces online.
As online video has boomed, so has the demand for inexpensive background music. The royalty-free stock music industry has grown to meet that demand and has tailored itself to serve a clientele of video producers and other media makers who need content that’s cheap, reusable, and free of legal strings. Through these platforms, a professional quality track costs as little as a fancy cup of coffee.
Today, millions of cheap tracks can be purchased from massive marketplaces that serve as the middleman between buyers and artists. It’s a quick way for a talented musician to make a small buck. But there’s a hidden cost: You lose control over where your work ends up. In hundreds, if not thousands, of cases, a tune becomes the backing track to hate speech or violent videos. Often such use violates the license the buyer agrees to when purchasing the track. But nobody reads the licenses—and, more importantly, no one enforces them.
The creator of “Comic Intro” is Gae47, aka Gaetano Malaponti, a 52-year-old, semi-retired, UK-based piano teacher and composer. He occasionally makes tracks to sell as royalty-free stock music. While he knew that using a platform like AudioJungle meant that his tracks could end up in a wide variety of places, he didn’t expect one of those places to be racist videos.
Malaponti was uncomfortable talking about Flaherty’s use of “Comic Intro” and would only comment by direct message on Twitter. After all, he has no say in where his music ends up once it’s sold through AudioJungle. He’s a musician, he says, not a businessman. “I have no control over where it goes or who uses it.”
Even when musicians sell royalty-free tracks directly, rather than through a larger marketplace, they rarely know where their music ends up—especially if they aren’t credited. According to Eric Schwartz, Content Insights Manager at Envato, which operates Audiojungle and other content marketplaces, purchasers are encouraged to credit musicians whenever possible. But, as with many royalty-free licenses, credit isn’t required. That makes it tough for artists to track use of their creations. While image search is fairly advanced today, you can’t Google a melody. If the composer’s name isn’t in the credits, the best chance many have of finding their work is by stumbling on it during a YouTube binge.
In the case of “Comic Intro,” the omission of a credit worked in Malaponti’s favor. He wouldn’t want people to know that one of his pieces was being used to promote Flaherty’s message. That could falsely imply he agrees with it.
AudioJungle does include a stipulation in its music licenses that “...you can’t use the Item in connection with defamatory, obscene or demeaning material, or in connection with sensitive subjects.” In fact, Flaherty’s original YouTube channel was shut down by YouTube at the end of August 2017 for violating its Community Guidelines (a move that was unrelated to the research for this piece). Since then, Flaherty has complained on Twitter about being censored—and redistributed many of his videos through a new YouTube channel.
You might think Flaherty’s “Comic Intro” video—with its violent scenes taken out of context and its racist message—would trigger AudioJungle’s license prohibition. AudioJungle doesn’t seem to see it that way. The company wouldn’t comment specifically on Flaherty’s case, but it does not require customers to report how they use purchased content. Its focus, according to a statement sent by Schwartz “is on making it easy for customers to find and buy what they are looking for.” If Audiojungle learns of a breach of any part of the license, Schwartz says it could trigger “the termination of a user’s account.” But pursuing such an outcome (and any associated legal costs) fall on the author/artist’s shoulders.
Other stock music marketplaces like Shutterstock Music, Pond5, and TunePocket also have clauses in their licensing agreements meant to curb the use of tracks in content that is objectionable. But Mik Seliver, creator of TunePocket, a small producer-centric marketplace built on a subscription model, is realistic about enforcement. Every license he sells directly to a buyer, he says, “comes with clear terms that outline how my clients can use the music,” and the marketplaces he sells through, like TunePocket, “have similar clauses in their agreements.” But, he adds, while “technically it’s enforceable,” you would “probably need to invest in a good lawyer to enforce it.” According to Seliver, royalty-free music is “a mass production market,” and his focus, he says, “is pretty much on the bottom line. Certainly not on enforcing the licensing terms.”
James Sully, a music and entertainment lawyer with a client list that includes artists like Sam Smith, says that music libraries, another term for the marketplaces, are “financially driven rather than creatively driven.” Enforcement of the license “is an economic matter as well as a matter of time.” Taking legal action against a misuse of a track is expensive. “A lot of people who create library music,” he adds, “don’t have the wealth or the desire to instruct a law firm to act on their behalf.”
Even if artists do know where their tracks are being used, there isn’t a lot they can do to keep their music from becoming the backing track for messages of hate, or to stop such use after the fact.
Does it matter? Malaponti believes that “Comic Intro” doesn’t add much to Flaherty’s videos, and it’s only a few seconds of sound. But music orchestrates our emotional responses to visual content. A 2009 study found that even just short excerpts of musical stimuli designed to sound “happy” or “sad” shape what emotions the subjects saw in a neutral face. Happy music resulted in happier reads, and vice versa. While Malaponti’s track is described on AudioJungle as a “short, comical piece,” its ominous tone has the potential to trigger negativity and anxiety when paired with violent imagery. That means access to the track could make the content of a hate video more powerful.
But companies like AudioJungle say it’s unreasonable to expect them to track the dissemination of millions of audio files, many of which will be used multiple times by each individual purchaser. They have a point. Actively monitoring an individual shopper is difficult given the scale of the business. Facebook and Twitter have spent the last few years mired in a struggle over how to monitor and flag hate-filled rhetoric while honoring free speech. These platforms have huge amounts of data about their users; stock music marketplaces don’t. (Once a buyer downloads a royalty-free track file, a process that requires minimal personal information, their formal relationship with the marketplace is over.)
This desire to make the buying process as simple as possible is repeated across the industry. The Pond5 marketplace holds 500,000 music tracks, in addition to 700,000 sound effects, over 8 million videos, and over 12 million photos, vectors, illustrations, and PSD’s. When you’re working at that scale, says CEO Jason Teichman, “content travels, and where it travels you can’t always anticipate.”
Still, some distribution platforms have found ways to take a stand. Airbnb has refused to host alt-right protesters, and companies like Stripe, Paypal, Google, and Squarespace have pulled services from purveyors of alt-right ideologies. Meanwhile, the stock music markets and the royalty free tracks’ creators are allowing themselves to pocket payments from hate-mongers—because, it seems, it’s just too hard to do anything else.
There are some ways to keep tabs on audio and video content. YouTube offers a tool called Content ID to track copyright video and audio content, so rightsholders can be compensated. This system could be applied, in a sort of “off-label” use, to help markets and creators patrol unseemly sources who use their music. AudioJungle launched support for this use of Content ID in 2015. (Their policy is no longer available on their website, but information on how to register tracks with Content ID, which are then managed by the author, is available in the AudioJungle Help Center.)
But until marketplaces like AudioJungle crackdown on users breaking their license agreements, documentation can only go so far.
James Opie, an Australian artist who releases free tracks under the name Nihilore using the Creative Commons Attribution License, has also found his music somewhere he’d rather not have it. One of his pieces, “Bush Week,” is in YouTuber Matthew Drake’s video, “Eternal Victims: The Psychology of Jewish Subversion in America | Paul Gottfried.” Unlike Malaponti, he’s credited in the video description and, unlike AudioJungle, the Creative Commons license terms don’t include morality-based criteria.
“If the content is merely ‘objectionable,’ then I’ll just ignore it and try not to call attention to it’s existence,” Opie says. But, “if I found my music in something that was actually illegal,” or in a video that promotes violence, “then of course I’m going to report it.” That’s how Flaherty’s channel found it’s final end: It was deleted because it promoted a message that YouTube deemed to be unfit for their platform. Flagging a video on YouTube doesn’t guarantee it will be taken down, but it does mean someone at YouTube will review it.
For now, until royalty-free music marketplaces translate their written moral standards to real tangible action, punting to YouTube is one of the only ways artists like Malaponti and Opie will see tangible action. That’s because the risk of affiliation with hateful messages is the weaker side of an ethical argument—money is money, no matter where it comes from or what it’s tied to.
Clarification at 4:00 p.m. on 11/17/2017: This story was updated to note that TunePocket is a small, subscription marketplace. It was also updated to remove TunePocket from a sentence calling for companies to crackdown on license violations.
