A ruling in the Norwegian Supreme Court has set a potentially dangerous precedent regarding rights ownership when tracks are created collaboratively online and across borders, which may allow labels in Norway to claim ownership of recordings made by artists with whom they have no contractual relationship.
One of the artists involved in the case has told CMU that he believes the ruling "has dire consequences [for the] protection of artists' rights in Norway, Scandinavia and beyond and should worry any artist that is working with Norwegian labels and musicians".
The ruling relates to a dispute over three tracks created collaboratively by two musicians - Netherlands-based Noam Ofirand Norway-based Fredrik Øverlie - which were then released by the latter's Norwegian label Mutual Intentions.
The collaboration began on Instagram after Øverlie posted an initial 'melody sketch' and suggested Ofir provide a bass line. Ofir ultimately delivered recordings that were incorporated into three tracks on an album released by Øverlie and his label.
After release, discussions began regarding rights and royalties. It was agreed that Ofir had co-written the three songs so was due songwriter royalties. But there was an ongoing dispute over performer royalties and also who owned the rights in the recordings that Ofir had sent to Øverlie, resulting in legal action. It was the latter dispute that made it all the way to the Supreme Court.
Norwegian copyright law says that it’s the 'producer' that has the right to commercially exploit a sound recording. The country’s Copyright Act doesn't define what is meant by producer, but in the Supreme Court ruling judge Erik Thyness concludes that "the producer of sound recordings is the person who undertakes, in the sense of organising and bearing the costs of, the production of the recordings".
However, that definition still results in ambiguities regarding rights ownership in the context of the modern music business. If a recording is made during a formal session in a studio, then it is easier to identify who organised the recording. But, of course, it’s now common for artists to produce music in their own home studios and/or using their own kit, as Ofir did.
This meant that the Supreme Court had to decide who had organised the recordings made by Ofir. He argued that he made those recordings "at his own risk”, with no instructions from or contractual obligations to Mutual. Which, he added, made him the producer in the context of copyright law.
Mutual, however, argued that the collaboration between Ofir and Øverlie was its project, initiated by Øverlie’s original melody sketch. Therefore - while Ofir was a songwriter, performer and sound engineer on the project - he didn't organise anything, and therefore is not a producer
The Supreme Court this week sided with the label. Judge Thyness states in the ruling: "In my view the sound recordings were made by Ofir as an integral part of his role as composer and artist in a project that was initiated, organised and paid for by Mutual, and that this must lead to Mutual having the rights as producer pursuant to ... the Copyright Act".
The ruling has been welcomed by record industry trade body IFPI, which supported Mutual in court. However, it has created some concern within the music-maker community given that it arguably sets a precedent in Norway that, where artists collaborate online - including across borders - any label connected to one of the collaborators can assume ownership over recordings made by another without any formal contractual relationship in place.
Steffen Asmundsson, a legal advisor to IFPI Norway, told CMU: "The Supreme Court’s decision clearly states that producer’s rights belong to the party who takes the initiative and the responsibility for the first fixation. Ofir, in this case, contributed creatively and has received full rights and compensation as composer and artist”.
“However, his own recording was an integrated part of this” and his role in relation to the recording was “nothing more than that of a regular sound technician”, Asmundsson added. “This does not entitle him to any rights as producer in a situation where he only contributed to Øverlie’s project planned as a release on the record company Mutual Intentions".
Meanwhile, Ofir told CMU: "I am deeply disappointed by the decision of the Norwegian Supreme Court. Not only is the verdict riddled with factual and legal mistakes, the judges completely disregard music industry standards, testimonies of world-famous experts and international precedents”.
“This decision”, he continued, “beyond the personal implications on me, has dire consequences on protection of artists' rights in Norway, Scandinavia and beyond and should worry any artist that is working with Norwegian labels and musicians".
