Day two of the HitPiece saga: Major artists involved, but were any laws broken?
Within a calendar day of making a notoriously terrible first impression, HitPiece has zapped its website back to life, smug and arrogant and going through the motions of being apologetic without actually taking any blame for angering artists.
On Tuesday night, any attempt to reach the company’s URL was met with an error message. Wednesday, this appeared:
Sure.
The company also said this.
To recap, HitPiece is accused by artists of all sizes — from independent solo acts and bands to Jack Antonoff, Deerhoof, Sadie Dupuis, and countless others and, by some accounts, even including Disney and Nickelodeon-supported artists — of uploading digital music files from services like Spotify and iTunes and offering those songs as NFTs, without ever contacting the vast majority of artists for permission or securing any kind of rights.
But that might be one of the legal boundaries the company was trying to test.
Let’s rewind a little
First, a little more about HitPiece, which is a brilliantly sinister name for a company that attempted this kind of action.
A long Twitter thread published Wednesday from The Human Fly, described on its account as “Pru – Jack – Jenny – Alex – Robert —— 5-piece making eclectic alt-folk from Philadelphia and New York. Powered by friendship, tweets by Robert,” explained some history on HitPiece. The company has been around for longer than some might suspect, co-founded by Rory Felton, “a legitimate music industry player. Via LinkedIn, he ran The Militia Group, a Sony Music acquisition, for 12 years. He’s also a former Billboard 30 Under 30 Exec.” Felton also published a “manifesto” in 2019 that basically lays out a rather sterile and commodified future for music: turning songs into products that are not judged to be good or enjoyable by fans but rather by AI, which “analyzes a song, pre-determines its quality — not audio quality, literally its performance, like decides how good the song is — and then streamlines it to A&R. Songs might be tossed out based on what corporate sponsors, or just corporations in general, might think of a song or its marketability.
The Human Fly links to another portion of the manifesto that includes “a vision in which he (Felton) would like artists to be primarily broken by and financed by brand partnerships. Imagine having to make artistic choices based on how Red Bull will react.”
Further, “I also think he views HitPiece as at least partially a grift of artificially inflating his own artists,” The Human Fly says. “He separately runs an artist management group called Felton and HitPiece has a LOT of ‘collaborations’ with those artists.”
The whole thread is worth reading and it’s kind of shocking in what it reveals about the guy behind the possible grift.
But that brings us back to the question:
Was what HitPiece did illegal?
Maybe not in the way some people are thinking, says “Parkside” Mike Renaud, president of Hidden Pony Records & Management.
Renaud has been working in the blockchain space for a year or so, which is both a short and long time to be involved with the little-understood but much-talked-about technology. He sees the potential for how blockchain can help artists and their fans create stronger relationships — including NFTs, although he’s less excited about musical or art-based NFTs than other potential applications.
“I’m interested in streaming services that are going to not only revolutionize how artists get paid but that can help fans earn wealth from interacting with the system,” he says. “That’s awesome. But then these guys come along and do what everyone was afraid of.”
The fear was that someone would take information publicly posted on a service like Spotify and monetize it without involving the artist at all, without permission.
“Their philosophy and what they’re testing, from what I understand, is the theory of copyright within an NFT,” Renaud says. “They’re going to claim they don’t own the MP3 or whatever’s in the NFT, it’s the NFT itself that they’re producing, so they’re not violating any copyright. Where they’re wrong, in my opinion, is that you can’t use people’s names and likenesses to sell anything without their permission. On top of which, they pulled information from Spotify and Apple and most record labels at the moment probably don’t contractually own the rights to their artists’ NFTs. People delivering to Spotify might have the right to deliver to Spotify, but no one was thinking of NFTs 10 years ago. No one knew what blockchain was 10 years ago.”
To boil this theory down: If HitPiece posted all these artists’ songs and entire catalogs to its website — including all Hidden Pony’s artists, like Jeremy Fisher and Moscow Apartment — it’s possible the company believes no copyright was infringed upon, especially if no NFTs were sold, meaning they were never actually created. But the use of someone’s likeness, their name and image, without their express permission, is likely illegal.
“In order to sue you have to prove damages. All these independent artists, it’s maybe a moral damage but it’s not proven yet they’ve made money from stealing stuff,” Renaud says. “The steal’s not there — it depends where they went. If they went ahead and minted people’s NFTs, and have people’s audio MP3s in it, I would think they’d be in trouble.”
Note: My invite to HitPiece and Rory Felton still stand. I’m more than happy to hear and publish your side of the story if you’re willing to share it. And if you’re an artist who found their catalog on HitPiece’s website without your permission, I want to hear from you too. Send a note to [email protected].
