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Insensitive – Copyright Implications of Jann Arden’s Stand

Twitter began to light up on August 7, 2014 when Canadian singer/songwriter Jann Arden (@jannarden) began to object, via a series of tweets, to the practice of Calgary radio station 90.3 AMP of playing shortened versions of songs. From a CBC news story on the matter, the station “essentially slashes Top 40 songs in half so the station can run 24 songs an hour instead of 12″; evidently 90.3 AMP is drawing on the work of Sparknet Communications, which provides “Quickhitz™ remixes”. Arden’s objections eventually culminated in her call to boycott the station for “butchering” and “disrespecting” artists and their work.

Arden’s tweets were sometimes profane and often humorous – here’s one that we’re comfortable reproducing on a suitable-for-families blog and which pithily summarizes her concerns with the practice:

For the record, I know of no such art gallery.

The initial reaction of experienced entertainment lawyers to the story should have been: How can I make money off of this? Just kidding! No, the reaction of experienced entertainment lawyers to the story should have been: figuring out the legal implications of what’s going on here is going to be complicated. For this post, rather than get too far down any convenient rabbit holes, we’re going to limit ourselves to considering whether Ms Arden might be able to assert a legal claim on the basis that shortening her songs constitutes an infringement of her moral rights in the musical compositions she has written.

(Throughout this discussion it needs to be kept in mind that there are (at least) two separate copyrighted works at play here when we’re talking about a “song” being shortened and broadcast: the musical composition and the recording of that musical composition. We’re going to focus in this post only on the musical composition aspect, and ignore moral rights relating to the performance as well as copyright considerations relating to the sound recording.)

At first it might seem obvious that Arden could assert a moral rights-based claim against the station. As Section 28.2 of the Copyright Act provides,

The author’s or performer’s right to the integrity of a work or performer’s performance is infringed … if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation … distorted, mutilated or otherwise modified

We can see two different elements are required for an infringement of a songwriter’s right to the integrity of their composition: there must have occurred (1) a distortion, mutilation or modification of the work which (2) has a prejudicial effect on the author’s honour or reputation. Shortening a song clearly counts as a “modification” of a work – but how would we determine whether it had a “prejudicial effect” on the songwriter’s honour or reputation? It’s a bit hard to say: of the limited number of moral rights cases which Canadian courts have considered, some (such as Snow v Eaton Centre (1982), 70 CPR (2d) 105, wherein sculptor Michael Snow successfully claimed infringement of his moral rights when the managers of the shopping mall in which his sculptures of ducks in flight were festooned with red ribbons to mark the Christmas season) indicate that the artist’s own views are to be given considerable weight so long as they were “reasonably arrived at”; others (e.g., Prise de Parole Inc v Guerin, Editeur Ltee (1995), 66 CPR (3d) 257) indicate that an aggrieved composer needs to provide objective, expert evidence which corroborates the prejudicial effect. In either case, it probably wouldn’t be too terribly difficult to get Ms Arden to testify that she feels that her reputation has been besmirched or to find multiple experts who could testify that shortening a song could result in reputational damage.

But there’s a complicating factor here: it’s quite possible that Arden has waived her moral rights in a manner on which 90.3 AMP could rely. To understand why that might be the case it is important to remember that Arden likely does not own all of the copyright in the compositions she has written. That’s because at least some of the copyright in the compositions and almost certainly all of the administration rights in the compositions have been assigned to a music publisher. In the publishing agreements that she signed with her music publisher, Arden would likely have been obliged to waive her moral rights – not only in favour of the publisher, but in favour of any licensee or assignee of the music publisher’s rights. And on that basis, 90.3 AMP might be able to raise a defence: they might be able to argue that they obtained a license (whether written or implied by a course of conduct) from the music publisher to reproduce, modify and otherwise make use of the composition, and that they enjoy the benefit of the waiver of moral rights which Arden signed in favour of the publisher. Without knowing the actual arrangements in place between the broadcaster and the publisher, it’s hard to say anything definitive – we would certainly welcome further insights in the comments from anyone familiar with the situation.

One other possible target of a claim might be Sparknet Communications itself (i.e., the folks who actually do the editing of the songs) – it’s not clear what arrangements, if any, they have in place with the music publishers who own and administer the songs which are being edited.

The Twitter storm over 90.3 AMP appears to have subsided over the last couple of days – whether this ends up being merely an insensitive (see what I did there?) breach of etiquette or the basis for a claim, whether on moral rights or other copyright grounds, remains to be seen.

Insensitive – Copyright Implications of Jann Arden’s Stand

Tariffpalooza 2014

Summer 2014. The living is easy; the Copyright Board is certifying tariffs at a furious pace.

As we noted back in May 2014 (Towards Certainty on Webcasting – Re:Sound Tariff 8 Certified), the Board certified Re:Sound Tariff 8, applicable to non-interactive and semi-interactive webcasters (although not immediately apparent from the wording of the tariff, the tariff is intended to apply to audio services such as Pandora and Songza). Re:Sound’s Tariff 8 is already the subject of an application for judicial review and has been the impetus for an ongoing public debate about the appropriateness of the license fees set by the Copyright Board (see Music Canada (including the press release linked at the bottom of that page) and Michael Geist for opposing views of the issue).

On July 26, 2014 the Board certified SOCAN Tariff 4 (Board decision; Tariff), which covers venues hosting live musical performances (including, helpfully, lip synching and miming). For further details regarding licenses for public performance of music at “live events”, see this post from March 2013.

Most momentous, though, was the certification by the Board on July 19 of SOCAN Tariffs 22.D.1 and 22.D.2 (Board decision; Tariffs) – these apply, respectively, to “online audiovisual services” and “user-generated content”, meaning they apply to the biggest of the big fish of the online world: YouTube, Apple, Netflix, Facebook, Yahoo! and internet service providers such as Rogers, Bell and Shaw. Barry Sookman and James Plotkin have both offered insightful posts about the newly-certified tariffs.

Herewith, an attempt to summarize how new SOCAN Tariff 22.D.1 (Online Audiovisual Services) works:

Revenue Source Year Royalty Notes
Per-program fees to end-users 2007-2010 1.7% minimum of $0.013 per program communicated
2011-2013 1.9% as above
Subscriptions to end-users 2007-2010 1.7% where free trial offered, min. monthly fee of $0.068 per free trial subscriber
2011-2013 1.9% where free trial offered, min. monthly fee of $0.075 per free trial subscriber
“Internet-related revenues” (see tariff for definition) 2007-2010 1.7% x A x B x (1-C) A = internet-related revenues
B = (i) the ratio of audiovisual page impressions to all page impressions, if available, and (ii) if not, 0.95 for a music video service, and 0.75 for any other service
C =(i) 0 for a Canadian service, and (ii) for any other service, the ratio of non-Canadian page impressions to all page impressions, if that ratio is available, and 0.9 if not
2011-2013 1.9% x A x B x (1-C) as above
If revenues are obtained from all three sources, the service must pay royalties in accordance with each formula, but when calculating “internet-related revenues”, can exclude fees charged to end-users in the first two formulas and related page impressions. A service with no revenues is obliged to pay $15.00 per year.

It should also be noted that the tariff imposes significant reporting obligations on those liable to pay royalties pursuant to the tariff.

Tariff 22.D.2 (User-generated content) is, thankfully, much simpler to summarize:

Year Royalty Notes
2007-2010 1.7% of “relevant revenues” “relevant revenues” means all revenues generated by all visits to watch pages on a site by end users having Canadian IP addresses,
irrespective of whether the content that is subject to those visitscontains any musical works or other audio content or any musical works in the repertoire of SOCAN, including membership,
subscription and other access fees, advertising, product placement, promotion, sponsorship, net revenues from the sale of goods
or services and commissions on third-party transactions, but excluding:
(a) revenues generated from the transmission of pay content;
(b) revenues that are already included in calculating royalties
pursuant to another SOCAN tariff;
(c) revenues generated by an Internet-based activity that is subject to another SOCAN tariff;
(d) agency commissions;
(e) the fair market value of any advertising production services
provided by the user; and
(f) network usage and other connectivity access fees. A service with no relevant revenues is obliged to pay $15.00 per year.
2011-2013 1.9% of “relevant revenues” as above

Thus far, SOCAN Tariffs 22.D.1 and 22.D.2 appear not to have generated anywhere near the uproar that Re:Sound Tariff 8 has – but whether these tariffs will be the subject of judicial review remains to be seen. As with all matters relating to online uses of music in Canada, service providers are advised to consult with an expert.

Tariffpalooza 2014

You’re Getting Sued for What? An E&O Odyssey (Pt 13)

This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by “errors and omissions” (E&O) insurance.  The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia.  These posts will point to actual lawsuits which have been filed against producers and distributors for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.

(I should note for regular readers of the Signal that the fact that we have published three installments in the “You’re Getting Sued for What? An E&O Odyssey” series in the last twenty-four hours is purely coincidental. It’s not our fault that so many interesting lawsuits have been filed recently. We swear.)

As reported by the National Post, a Montreal-based artist is suing the producer and broadcaster of the television series 30 Vies – on the basis that footage of a graffiti tag on a building which is incorporated into the opening credits of the series constitutes copyright infringement. The lawsuit evidently seeks $45,000 in damages on the basis that the producer and broadcaster, without permission from the artist, “forged, modified, mutilated and broadcast the work” for commercial purposes. As reported by the Post, “an image in which the tag appears below the show’s spray-painted title was reproduced on promotional billboards for the show’s first and second seasons.”

Although it is not perfectly clear from the news report, it appears that the artist in question is asserting not just an infringement of his copyright, but also infringement of his “moral right” to be protected against use of a work “in association with” a product so as to prejudice the artist’s reputation.

The extent to which graffiti needs to be “cleared” (i.e., the subject of a license or digitally smudged so as to be unrecognizable) for use in film and TV projects is a recurring one for producer’s counsel and giving advice to clients requires some consideration of the specific graffiti. As noted in the news report about the 30 Vies suit, it can be difficult to film in urban environments without catching at least some graffiti on-screen. The mere fact that the original painting of the graffiti might have been illegal is not a defence to a claim for infringement – it is not a condition for copyright protection that a work be “legal” (though a judge might be convinced to award only nominal or very low damages for infringement).

A more productive line for defending a copyright claim might be to force the platintiff to demonstrate that they are in fact the author and owner of the “artistic work” they are claiming has been infringed. Depending on the nature of the graffiti in question, it might be plausible to argue that the “work” lacks the requisite “originality” to warrant copyright protection (the more the graffiti is a mere “tag”, the less likely it will be to have the necessary originality). The viability of the “incidental inclusion” defence is contested, particularly in the context of dramatic productions, so it’s an open question whether it could plausibly be argued (see this post for further discussion of “incidental inclusion”). Another possibilty is to argue that whatever the use, it is de minimis and therefore not properly the subject of a legal claim – regrettably, Canadian courts have been less than forthcoming on the viability of de minimis defences in copyright actions so, again, this would be a somewhat novel approach (see this post for some further general discussion of the de minimis defence).

Of course, in the E&O context, both producers and insurers generally want to avoid the filing of a claim in the first place, rather than trying to strategize about how to defend against one which has already been filed. When it comes to graffiti, the only sure-fire way to avoid an E&O concern is to either entirely avoid filming it or to have the production’s art department create their own “graffiti” – though whether either of those options is entirely palatable will be left to the producer and their creative vision.

You’re Getting Sued for What? An E&O Odyssey (Pt 13)

You’re Getting Sued for What? An E&O Odyssey (Pt 12)

This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by “errors and omissions” (E&O) insurance.  The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia.  These posts will point to actual lawsuits which have been filed against producers and distributors for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.

As reported by The Hollywood Reporter‘s entertainment law blog, Hollywood, Esq., the producers, distributors and broadcasters of the television series Southland are being sued by the family of a deceased individual whose autopsy photo is used in the opening credits montage of the show. The mother and daughter of the deceased individual claim that, as a result of the photo’s use, they have suffered “anxiety, anger, hopelessness, fear and distrust of authority” along with “physical and emotional discomfort, injury and damage,  apprehension, psychological trauma, loss of dignity, nightmares, loss of trust”.

The lawsuit raises an important practice point. Often when assessing whether the use of a photograph would infringe the rights of a third party, lawyers will focus on issues relating to the rights in the photograph: copyright in the photograph, copyright or trade-mark rights in any materials depicted in the photograph and personality rights attached to any individual depicted in the photograph. The lawsuit is a good reminder to also consider whether the use of the photograph could intersect with the rights of not only the people in the photograph, but with the rights of a third party: is the photograph being used in a way which could give rise to a defamation claim (e.g., a photograph of a person’s face is being shown to someone to see if they will identify the person depicted as having committed a crime) or to a more remote claim for trauma (such as that contemplated by the Southland lawsuit).

You’re Getting Sued for What? An E&O Odyssey (Pt 12)

You’re Getting Sued for What? An E&O Odyssey (Pt 11)

This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by “errors and omissions” (E&O) insurance.  The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia.  These posts will point to actual lawsuits which have been filed against producers and distributors for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.

Giving E&O “clearance” advice is usually a mix of substantive legal analysis (“does the proposed inclusion of this famous person’s image in this movie violate their publicity rights?”), practical risk assessment (“this is a film which seventeen people will see – how is the famous person going to find out about it?”) and instinct (“that famous person has a reputation for aggressively protecting their interests”). Producers, their lawyers and the lawyers of the E&O insurer often engage in a bit of hemming and hawing about how to handle a particular situation, and the final decision can come down to a frank financial judgment: the deductible on your E&O policy is $25,000 – are you willing to pay that amount if someone files a claim just because you think that including this possibly-violative image is critical to the “artistic” merit of the project?

Over time, most entertainment lawyers develop a bit of a sixth sense about what is and what isn’t advisable when it comes to E&O clearance (e.g., anything involving Disney, Coca-Cola or the Elvis Presley estate should be authorized). Sometimes, though, things just come out of a clear blue sky:

Manuel Noriega sues over ‘Call of Duty’ video game

Yup. 80-year old imprisoned former Panamanian strongman Manuel Noriega has filed a lawsuit in Los Angeles County against the publishers of Call of Duty: Black Ops II, one of the most successful videogames of the last few years, on the basis that one of the “missions” in the game requires players to capture an on-screen villain depicted as Noriega. Based on news reports, the lawsuit appears to allege defamation and infringement of Noriega’s right of publicity.

One can just imagine the discussions which took place about whether there was any risk in including Noriega’s image in the game (“dude, he’s 80 years old and he’s in prison in Panama - what’s he gonna do, sue us?”). For what it’s worth, I think an awful lot of entertainment lawyers I know would have counselled their client that there was risk in using Noriega’s image, but it was probably a pretty low practical risk. There are certainly defences which can (and will) be raised against the lawsuit (free speech being the most obvious; truth, lack of malice or fair comment as a defence to the defamation claim; the untenable nature of Noriega’s claim to be entitled to a share of the profits) – but it’s always best to avoid having to be dragged into court in the first place (which would certainly be the preference of the defendant’s insurer). Ultimately, just because a risk is awfully low doesn’t mean it doesn’t exist. I’m looking forward to dragging out the “Manuel Noriega sued for using his image” story in future discussions with clients.

You’re Getting Sued for What? An E&O Odyssey (Pt 11)