Tuesday June 29, 1999

Sarah McLachlan trial could set precedent in copyright law

PAUL GRANT - CBC Radio Arts

VANCOUVER - Lawyers for singer Sarah McLachlan and producer Daryl Neudorf were back in court yesterday in Vancouver. Neudorf is suing McLachlan for song writing credit and a share of royalties from her first album, recorded more than 10 years ago. Since then, McLachlan has become an international star and the focal point of Lilith Fair, the all-female music tour.

The case is attracting national attention not only because of Sarah McLachlan's fame, but also because of the legal precedents it may set.

Sarah McLachlan was 20 years old when she recorded the song Sad Clown and seven others on her debut album Touch. Daryl Neudorf claims he co-wrote four of those songs, including Sad Clown.

On the album cover Neudorf is given credit for pre-production, coordination and production assistance. McLachlan even thanks him for inspiration. But nowhere is he given credit for co-writing.

It all comes down to a question of his word against hers. "What is the act of authorship?" says Jennifer Conkie, McLachlan's lawyer. "As opposed to all the other kinds of things musicians do in a jam session. That's a debated topic, I think in the industry and certainly in the law."

In the superheated atmosphere of the recording studio, time is money. Songs are fine-tuned on the spot, and suggestions may come from producers or other musicians. The question is, where does collaboration end and co-writing begin?

"Usually there is an agreement in writing before they start to do work on a project," says Jonathon Simkin, Daryl Neudorf's lawyer. "And that deals with everything from the royalty paid to how are we going to deal with the possibility that the producer might do some song writing."

But when Touch was recorded, no such contracts were signed. Now the two parties are asking the court to sort it all out.

Glen Bloom, a partner with the Ottawa law firm of Osler, Hoskin and Harcourt, and president of the Intellectual Property Institute of Canada, says in cases where there is some collaboration, the question of ownership of a song can be elusive.

"If it's a producer," he says, "who's suggesting some approach to certain bars of the music, that may not be sufficient to give the producer any claim to rights. But if there are individuals who are collaborating in the song itself that may be sufficient."

Sarah McLachlan thanks Neudorf for inspiration on the jacket of her album Touch. But nowhere is he given credit for co-writing.

Canada's copyright act came into effect in 1924, and is based largely on the law in the United Kingdom. But there have been few cases involving joint authorship. The judge in the McLachlan case, Justice Bruce Cohen, doesn't have a lot of Canadian precedent to guide him in his decision.

Glen Bloom says that makes the case particularly important since "there's not a great deal of jurisprudence in Canada that identifies the criteria for authorship." The McLachlan case, he adds, "probably will provide some intelligence in that area."

Closing arguments are expected to wrap up by mid-week but because of the complexity of the case, it may be months before a decision is made.