January/February, 2000

Publication title: Words & Music, vol. 7, Iss. 1, pg. 6
Place: Unknown
Writer: Unknown

Co-writers? The case of Neudorf vs McLachlan

In a well publicized case, Darryl Neudorf brought a lawsuit against Sarah McLachlan, Nettwerk Productions Ltd., and related companies, asking that he be named a co-writer of several works on McLachlan’s Touch album. Last December, the Honourable Mr. Justice Cohen of the Supreme Court of British Columbia rendered a decision in the lawsuit.

The Court ruled that Mr. Neudorf was not entitled to share the copyright in any of the songs in question. He was, however, entitled to judgment against Nettwork for money due to him for the services that he performed.

The decision is of particular interest to SOCAN members because it analyzes the law relating to co-authorship of musical works. The Court ruled that “a contribution of significant original expression to parts of a musical work, other than just the lyrics, melody, or chords, can give rise to a claim of co-ownership of copyright in a musical work” but only if the contribution was made “pursuant to a common design.” In other words, some form of shared intent is needed.

After reviewing cases that discuss “joint authorship,” the Judge posed three questions as a test of joint authorship:
– Did the Plaintiff contribute a significant or substantial enough original expression to the songs?
– Did each of the Plaintiff and McLachlan intend that their contributions be merged into a unitary whole [i.e. a single song]?
– Did each of the Plaintiff and McLachlan intend the other to be a joint author of the songs?
In some cases, the Court found that Mr. Neudorf had made an original contribution, for example, titles, but that this was not “significant or substantial enough.” In fact, the Court found that Mr. Neudorf had not contributed “significant or substantial enough” original expression to any of the songs with the exception of “Steaming.”

In respect of “Steaming,” the Court found that Mr. Neudorf had made a sufficient original contribution and that both he and McLachlan intended that his contribution would be merged into the song. However, the Court ruled that Neudorf was not entitled to co-ownership of the copyright in “Steaming” because neither he nor McLachlan considered or intended him to be a co-writer.
To arrive at this decision, the Court found that there were no discussions between McLachlan and Neudorf regarding the splitting of songwriting credits and that Neudorf did not raise the issue until many years after the release of Touch.