In Removing Neil Young’s Music, Spotify Didn’t Need to Listen to the Artist, but Did Have to Heed His Label

Entertainment law experts explain why the takedown request had to come from Warner Records. Other artists inclined to follow his lead in protesting the platform Spotify has given Joe Rogan might not have as much clout with their labels.

spotify Neil Young, canadian rock musician , July 28, 2014. Photo by: Erwin Elsner/picture-alliance/dpa/AP Images
Erwin Elsner/picture-alliance/dpa/AP Images

How did Neil Young get Spotify to remove his entire catalog from the service? Not by taking it up with the service directly; the service had no obligation to give his personal wishes the time of day, although the DSP is not about to put its head in the sand when an important artist is publicly going on the anti-Spotify warpath. Rather, Young convinced his longtime label, Warner Records, to be the one to plead his case to the service, at which point there was little doubt that the rocker was going to get his way.

“Whoever holds the rights to the sound recording should be able to have the records removed from the DSPs, including Spotify,” says leading entertainment attorney Dina LaPolt. “Usually, that is the label, not the artist. Most labels will respect their artists wishes if they feel strongly about something, but ultimately if the label owns the record, it’s their decision.”

So as the question arises of which artists might want to follow Young’s lead and ask to have their music removed, too, in light of Spotify continuing to be the home base for Joe Rogan’s campaign to provide COVID misinformation, there’s not much they can do it about unless the heads of the labels they’re signed to agree to take it to the mat with the DSP. And not many artists may have the 500-pound-gorilla status to convince their record companies to forego the surest source of recorded-music income going into the future.

Still, there are examples of other artists who’ve done what Young has, obviously for different reasons, pre-Rogan — most notably when Taylor Swift had “1989” withheld from the service. (She eventually was satisfied enough with Spotify’s terms to put that and all her future albums back on the service.) Even as big an artist as Swift wouldn’t have been able to make that ask without her future archenemy, the Big Machine label, backing her at the time. But does that mean that any label can ask any DSP to take down any artist’s work on a whim, or without a very solid explanation? No.

Jeff Liebenson of Liebenson Law, who serves as president of the International Association of Entertainment Lawyers, laid out for Variety exactly how these scenarios play out under the existing licenses the labels have with DSPs like Spotify, Apple Music, YouTube Music and Tidal. Without knowing exactly how the contracts read, it would be difficult to know just how much leeway Spotify would have for resisting a takedown request. But in this case, clearly, it made sense to quickly accede.

Says Liebenson, “Neil Young is signed to the Warner Records label, which is part of Warner Music Group. Warner Music Group has an agreement with Spotify under which it licenses the rights to its catalog of sound recordings, including Neil Young. Warner Music Group would have the right to require Spotify to take down certain recordings. This right is subject to negotiation, so the devil is in the details of the contract about what can be taken down.”

The issues often tend to be purely contractual, but sometimes, as in this case, can be more philosophical. “Typically,” says Liebenson, “the takedown right applies when a label has lost its rights to a recording, if it is subject to a third party claim, or if the label has a bona fide issue with the artist or there is some artist sensitivity.”

Where a label would run into quick resistance is if it asked to withhold some artists’ music but not others’ as part of a renegotiation ploy, or arbitrarily playing favorites between services.

As Liebenson says: “The contract also may state that this takedown right cannot be exercised in an attempt to frustrate the purposes of the agreement (i.e., by taking a large advance from Spotify and then engaging in unwarranted withdrawals of significant portions of the catalog).

“So here it seems that Neil raised this, as he should, with his label,” Liebenson continues, “and Warner Music Group then notified Spotify that it was exercising its takedown right. Spotify then would be legally obligated to takedown Neil’s recordings, unless it addressed his concerns.  Spotify decided under the circumstances that it preferred to continue offering the (Rogan) podcasts that Neil finds so objectionable, so it took down his recordings from the service.”

If labels can make a successful case to have individual artists removed from streaming services, can they also do that with radio stations or chains? No, because record companies don’t have any kind of formal deal with radio at all, and even the performing rights organizations that do have no say in picking-and-choosing or putting restrictions on anything that gets played.

“The difference with radio, of course,” says LaPolt, “is that a songwriter’s performance rights are typically licensed to BMI or ASCAP, who then in turn give blanket licenses out to stations. And due to the government consent decrees, BMI and ASCAP can’t restrict a station’s right to a particular part of their catalog; it’s licensed as a whole. But that is not the case with the rights to the sound recordings; those rights are licensed in a free market. And for interactive streaming, you have to license both the composition and the sound recording.”

The respect and legacy that Young has affords him some privilege that most other artists wouldn’t enjoy in asking their labels to demand their music be removed from the biggest distribution platform in the business. It’s generally understood in music that if you’re not on Spotify, you might as well be invisible, even with several prominent comparable DSPs hosting their wares, none of which have paid a podcaster $100 million to give out information that arguably endangers lives. But Young is a fairly special case in that much of his audience still prefers physical media, and he probably stands to make more in a short tour than he would from years of streaming royalties. Moreover, he’s the only major artist who has successfully directed his fan base to his own paid streaming service devoted solely to his work, Neil Young Archives. Most of all, maybe, he’s such a highly esteemed gadfly that he could make both Spotify and his label fairly miserable if either didn’t pay heed to his wishes (although there’s no indication Warner put up any resistance).

He’s being widely hailed in the music industry as a hero for making his stand. And you don’t have to look far to find anecdotal evidence of plenty of subscribers taking a cue from Young and canceling their Spotify subscriptions in favor of other services. But will this ultimately amount to more than a tiny trickle in the overall scheme of things? Could Spotify ever possibly cancel Rogan and risk the wrath of the entire right-of-center part of the country? And will younger artists with more to lose than Young be able to convince their labels they can forego a key revenue stream, in the interest of registering a righteous protest?

Young has already been hailed as an actual hero in the battle between principles and going along with the program. Whether he may be a general without an army is yet to be seen.