Skating on Thin Ice: The Music Copyright Minefield Behind Olympic Performances
Amidst all the ups and downs, excitement and disappointment, regional rivalries and bust-ups at the Milan Cortina Olympics there appeared, somewhat out of the blue ice, rearing its ugly head – music copyright!
Not just one but three Olympic skaters got themselves in trouble with their choice of music for their attempted gold-winning performances.
The most prominent of these was US figure skater Amber Glenn; who chose to free skate to the music of Canadian artist Seb McKinnon, who produces music under the name CLANN. McKinnon took to social media to object to the use of his song “The Return”.
Next up was Russian figure skater Petr Gumennik who had to change the programme for his performance two days before the start of the competition because he did not have permission to include music from “Perfume: The Story of a Murderer” (a psychological thriller movie). He then hoped to be able to use the music he had used in the previous season which came from the film “Dune” but was unable to get clearance for that in time either. Finally, he did manage to get clearance with the inclusion of the work “Waltz 1805” by Edgar Hakobyan.
Then a race against time by Spanish skater Tomas-Llorenc Guarino Sabate who had to obtain approval for the music to his short programme set to a medley from the animated film “Minions”. He had been performing the programme all season only to be told that Universal Studios was going to refuse its use during the Winter Games. In the end though, in this case, Sabate managed to get the approval he needed at the last minute.
Why is this seemingly now such a big issue?
Until 2014 music copyright had not been a problem in figure skating since the International Skating Union (ISU) barred music which included vocals and generally classical music was used which was out of copyright.
After 2014, there did not seem to be any major issues until the 2022 Beijing Olympics when Heavy Young Heathens who had recorded “House of the Rising Sun” objected to the American skaters Alexa Kneirim and Brandon Frazier using their recording for their programme. This led to the ISU offering to help skaters avoid copyright claims. However, as we have seen the copyright issues have not gone away.
Of course the performance of music in public places causing copyright issues is not restricted to ice-skating. Donald Trump came in for a lot of stick when he used Sinéad O’Connor’s famous “Nothing Compares 2 U” recording at his political rallies and the late O’Connor’s estate attempted to prevent Trump doing so.
So what are the legal issues?
Whilst the position varies between the US, UK and indeed Italy in some respects, we must first look at what rights are involved generally in all jurisdictions.
Putting it simply there are two copyrights involved:
- The copyright in the songs themselves; and
- The copyright in the sound recordings embodying those songs.
First, looking at the public performance of songs (compositions), they are generally owned by music publishers rather than writers since the songwriters will have assigned the rights in those compositions to music publishers. As music publishers want to monetise exploitation of those compositions as much as possible, even if they could (which is debatable) stop the performance of those compositions at political rallies or the Olympics, they will generally not do so unless the songwriter concerned has a contractual right to stop it or is a big enough name for them to care about.
In the UK the compositions for public performance are administered by PRS for Music. Generally, they will grant blanket licences for the public performance of compositions be they political rallies, sporting events or restaurants and bars.
In the US, the relevant performing right societies are ASCAP and BMI who administer the public performance of compositions. And in Italy, SIAE is the main Italian copyright collecting society licensing music for public events.
Turning to the position in relation to copyright in the sound recordings, these are generally owned by artists’ record companies. Although there may be a few examples where artists have retained or bought back their sound recordings generally it is the record companies who are in charge here. There is a major difference in the US and the UK. In the US generally the public performance of sound recordings has no copyright protection so that the record companies, even if they wanted to, could not stop their public performance at political rallies or sporting events.
In the UK and other European jurisdictions, there are so-called “neighbouring rights” which protect the public performance of sound recordings. These are administered in the UK by Phonographic Performance Limited (PPL) and generally PPL will grant blanket licences.
However, PPL’s public position is that they will not grant a licence for public performance of sound recordings at political rallies without the “rights holders” consent. This presumably means the record companies. Although in the UK, the performing artist still receives royalties from the public performance of their recordings so perhaps PPL will take note of their sensibilities. If in fact PPL seek only the record companies’ consent then that will normally be forthcoming unless they have an artist objecting who has enough sway (generally where they are earning the record company millions of pounds and do not owe them millions of pounds!) to bring about the prevention of the public performance of the sound recordings concerned.
In Italy, the equivalent of PPL which collects royalties on neighbouring rights on behalf of record labels is SCF, which licenses the public performance of the sound recordings they administer.
Turning back to the specifics of the problems encountered at this year’s Winter Games, whilst it seems clear that figure skaters need to obtain permission for the music they use, the process is not straightforward.
One additional headache is that performing right societies differ from territory to territory as to whether they can grant the necessary licences. In some jurisdictions an athletic performance choreographed to a piece of music such as skating is a “dramatic public performance” and the performing right society cannot grant licences for that; which would mean seeking the music publishers’ direct consent.
The key thing which skaters and other athletes (and their management teams) and speakers at political events, whose performance incorporates music, need to take on board is not to leave things to the last minute. It may take time to get the necessary proper clearances.
Spencer West can assist in steering clients through this complex minefield to avoid copyright infringement or last minute dramas.