Sunday 6th February 2022 Beijing, China - figure skaters Alexa Knierim and Brandon Frazier were dancing on ice to earn a Silver medal for Team USA.
Alexa Knierim and Brandon Frazier
Thursday 17th February 2022 Bakersfield, California, USA - lawyers acting for brothers Robert and Aron Marderosian, otherwise known as music duo Heavy Young Heathens, file a copyright infringement complaint with the United States District Court, Central District of California against Alexa Knierim, Brandon Frazier, US Figure Skating, broadcasters NBC, associated video on demand platform Peacock, and their parent company the telecommunications and media conglomerate ComCast Corp. for using their recording of "The House of the Rising Sun" without permission.
Wait - what can the Heavy Young Heathens possibly complain about, as their song was featured on TV as Team USA won an Olympic Silver Medal?
The problem that sports, like figure skating, and activities like fitness that use music as part of their routines have is that they are building their activities around the use of music that other people own.
Each individual music copyright owner can decide whether to permit a particular use of their music. Permission is granted for uses via license agreements, typically for financial remuneration – its how the copyright owners (artists and songwriters) make money from their work. Indeed the Heavy Young Heathens cite several other properly licensed exploitations of the track, like car commercials and film trailers.
In this case, the song in question “The House of the Rising Sun” is a traditional folk song that is out of copyright. So the Heavy Young Heathens acted on their copyrights in the master recording, their own version / interpretation of that song. If the song had still been in copyright, all the songwriting copyright owners would have also had a complaint.
The Heavy Young Heathens complained that the unauthorised uses of their track
“...cause great harm to the value of Plaintiffs’ command for such a well known piece of their recording catalog, and insults the integrity of their professional reputation.”
and
“Defendants did not have any license, authorization, permission or consent to use the Infringed Composition.”
They are seeking a trial by jury for damages. The penalty for copyright violations is up to $150,000 per incident. Multiple incidents are claimed as the clip of the performance was used many times.
So what should the Defendants have done?
For standard uses of music, like listening at home for personal enjoyment, and playing music in a public venue (“performing rights”) like the ice skating rink that Alexa Knierim and Brandon Frazier practised at and the ice rink in Beijing where they won their silver medal, music rights are easy to obtain – they are taken care of by streaming services and collecting societies respectively. Spotify gets permission from each recording artist and songwriter to license you to listen to music in private, and collecting societies get the permission to license venues so you can hear it in shops, bars, and other public spaces.
For non-standard uses, like performance sports and fitness, a number of rights (such as adaptation and choreography) are needed that are closely guarded by the copyright owners as they are essentially interpretations of their work.
The rights needed for performance sports and fitness are typically:
The marching arts have a slightly expanded set of requirements as they are making a custom arrangement of the music and distributing sheet music.
It is a complicated, lengthy and expensive process to identify the owners and gain each one’s permission:
This could be about to get a lot worse for US Figure Skating and the ISU...
Only one song has so far been cited, by one recording artist.
Figure skating rules were changed to allow the use of popular music for the PyeongChang 2018 Winter Olympics. The International Skating Union (ISU) and its National Federations are clearly keen to promote their sport, and quite rightly see the use of popular music as central to that.
However, it is also their responsibility to ensure that their athletes abide by law and the rules of their sport.
Even if they try to distance themselves from the infringement and place the responsibility on the skaters, those responsible for the sport governance at national and international level have facilitated and encouraged the use of unlicensed music by not having a proper framework to check that the music being used is correctly licensed, and an educational programme combined with effective enforcement of robust music guidelines. The illegal use of popular music has therefore potentially been widespread and unchecked over many years.
Sony Music sued USA Cheer, the International Cheer Union, and others involved in providing music for cheerleading for widespread copyright infringement of their music in the whole sport, for very substantial amount.
Copyright is a worldwide legal concept, this is not a US-only issue.
And although Sony Music is high profile, they are just one music rightsholder - ClicknClear already works with over 750 music rightsholders (including Sony Music) representing thousands of record labels and music publishers.
ClicknClear is here to help.
In a similar way to a streaming service or collecting society for the rights they deal with, ClicknClear is here to make the complicated process of getting the full set of music rights needed for all aspects of sports and fitness routines simple.
We work with hundreds of record labels and publishers, offering a huge catalogue of great music. We currently have around 500,000 tracks (and rapidly growing) available from established international superstars to emerging talent, with all necessary permissions from the relevant recording artists and songwriters to grant licenses with the rights needed for all aspects of a sport or fitness organizations activities at low pre-agreed fees.
We offer a range of licenses, from individual athletes or fitness instructors creating a music mix through to International Federation governance, and online and broadcast music rights to allow them to increase engagement, grow participation, and monetise their online VoD platforms.
We help with education, provide music guidelines, and have online tools that make it easy for competition organisers and national / international federations to monitor music license use and enforce those music guidelines.
Partnering with ClicknClear allows athletes, performers, sports, and fitness organisations worldwide to use music without fear of copyright infringement, and engage worldwide audiences and grow participation by confidently harnessing that special chemistry that happens when music and sport combine.
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