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Eric Swetsky's legal column published in Marketing Magazine, July 2001
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The Sarah McLachlan case
When relationships hit a sour note
There was a time when Sarah McLachlan was not famous. In the 1980's, she was a mere teenager in Halifax. After graduating from high school, she enrolled in a Halifax art school, playing in a Nova Scotia band on the side. Terry McBride, then in his twenties, was a principal in Nettwerk Productions Ltd., a British Columbia based record company. In 1987, McBride was in Halifax touring with the group "Skinny Puppy," and he offered McLachlan an on-the-spot five-album recording contract with Nettwerk.
McLachlan then moved to BC at the age of 19, and began working with Nettwerk on her first album, "Touch." The rest, as they say, is all history. Today, McLachlan is an accomplished song-writer and international recording artist, with an abundance of Grammy and Juno awards to bedeck the mantle over her fireplace.
She will also be memorialized forever in the Canadian law reports with her recent successful defence to allegations by Darryl Neudorf that, among other things, he co-authored some of the songs on Touch.
The McLachlan case is similar in some respects to a United States case that concerned the hit Broadway show "Rent," and it is worth looking at that case first since the BC judge in the McLachlan case relied heavily on the legal precedent that the judge in the Rent case himself relied on.
The idea for Rent came from the imagination of Billy Aronson who, along with Jonathan Larson, developed the show. When Aronson and Larson amicably parted company on the project, Larson in conjunction with the New York Theatre Workshop continued the play's evolution. An Off-Broadway production followed, and everyone recognized that while much work was needed to bring the play to Broadway, the potential was there.
For a fee of $2,000, Lynn Thomson was hired by the New York Theatre Workshop to work with Larson as a dramaturg. In the summer and fall of 1995, the two worked together "intensively," and a "radically transformed" version of Rent followed. Thomson later went to court, claiming that she was a co-author of the play. As an aside, Larson died a few months before opening night, never living to see his dream reach Broadway.
Thomson claimed that she contributed themes, plot elements, structure and specific language. The judge said that to be a co-author, there must be more:
"the parties must each understand that each one of them has an interest in the joint product…a right to share in the proceeds, a right to control the work, a right to be recognized as the author…there must be an intent that there be a sharing of…ownership and authorship."
The judge decided against Thomson in that all the evidence showed that Larson considered Thomson as a dramaturg only. From this evidence the judge inferred that Larson never considered, and never therefore intended, Thomson to be an author.
In Sarah McLachlan's case, Neudorf was hired by Nettwerk to assist on the Touch project, and he worked closely with McLachlan. Neudorf claimed that he made musical arrangements in the form of melodies, harmonies, rhythms, song structure and instrumental arrangements.
The BC judge hearing the case concluded his rigorous legal analysis by stating:
"In my opinion, the common-law definition of joint-authorship, the statutory definitions of joint authorship in Canada, England and the United States, and the judicial interpretation of the statutory definitions, all confirm that mutual intent is a prerequisite for a finding of collaboration."
The BC judge accepted that there were important policy reasons to require an intention since it ensures, among other things, that an author is not denied their sole copyright interest in a work simply because another, such as an editor or researcher, rendered assistance.
The BC judge noted that intention to co-author "'does not turn solely on the parties own words or professed state of mind (and that there must be) a more nuanced inquiry into factual indicators of ownership and authorship, such as how a collaborator regarded herself…in terms of billing and credit, decision-making (among other things)'".
The judge examined what the intentions of McLachlan and Neudorf were by looking at how each described Neudorf's role. At trial, McLachlan said that Neudorf helped her put songs down on tape, helped her to work with musicians on their parts and offered many suggestions, which she said she occasionally followed. But she said she never thought she was writing songs with Neudorf.
Neudorf described his role at trial as nurturing McLachlan's abilities as a song-writer, teaching her some things about song-writing, teaching her aesthetics, collaborating with musicians, developing material and having it prepped and ready to go into the studio.
From this and other evidence, the court concluded that whatever role Neudorf and McLachlan did play in their work together, neither regarded each other as joint authors, and that Neudorf therefore was not in law elevated to the status of a co-author.
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