The recent British Columbia Supreme Court decision of Neudorf v. Nettwerk Productions Ltd., et al.,  B.C.J. No. 2831 (B.C.S.C.) emphasizes the importance that Canadian courts are now willing to place on the intention of the parties in determining whether a work will be considered to be jointly authored.
The plaintiff, musician Darryl Neudorf, sought a declaration of co-ownership in four songs which appeared on Sarah McLachlan's 1988 album, "Touch", claiming that his contributions to the melodies, harmonies and rhythms of four songs which appeared on the record entitled him to be considered as a joint author and therefore, co-owner, of the works in question. The evidence established that the plaintiff met the traditional test of joint authorship (the contribution of substantial material for the purpose of carrying out a common design) in one song, entitled "Steaming", because he was able to show that he actually dictated exact notes to McLachlan, which notes were in fact left unaltered in the final recording of the song. For the remaining three songs at issue, the plaintiff was unsuccessful in meeting the threshold test, having contributed only "suggestions" and guidance.
In assessing whether the plaintiff's contributions to the defendant's works were such that the plaintiff and defendant McLachlan could be considered to be joint authors, Cohen, J., following the American joint authorship case of Childress v. Taylor, extended the traditional joint authorship test by adding the element of the intent of the parties to act as joint authors. The court ruled that in order for the plaintiff to be considered a joint author of the works in question he must satisfy each of the following tests:
Did the plaintiff contribute significant original expression to the songs?
did each of the plaintiff and the named author intend that their contributions be merged into a unitary whole?
did each of the plaintiff and the named author intend the other to be a joint author of the songs?
On the evidence, the court found that neither Neudorf nor McLachlan had intended to be joint authors of the songs in question. While finding that Neudorf and McLachlan intended to merge their respective contributions into one song, the fact that no evidence was presented about splitting song-writing credits, and the fact that Neudorf was given no co-writing credit in the liner notes, established that there was no intention that the parties be joint authors of the songs. Accordingly, the plaintiff's action was dismissed with regard to all four works.
While the decision is currently under appeal, it appears that song-writers and other authors in collaborative situations should now carefully consider memorializing the terms of their collaboration during the creative process and documenting their respective contributions.
The contents of this publication are intended for informational purposes only and should not be construed as legal advice or legal opinion, which can be rendered properly only when related to specific facts.
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