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.

Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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