The Invisible Artists of Copyright Jurisprudence: Joint Authorship in Jazz Improvisation under Canadian Law

  • November 26, 2021

Rebecca Noble (University of New Brunswick)

[Intellectual property rights] approach … what may be called the metaphysics of law where the distinctions are … almost evanescent.
– Justice Joseph Story [1]
They teach you there’s a boundary line to music. But man, there’s no boundary line to art.
– Charlie Parker [2]

Charlie Parker jazz musician holding alto sax

OVERVIEW

The distinction between authorship and performance in music is a live issue in copyright scholarship. This is not surprising. Ephemeral and dynamic in nature, music lies in tension with the law’s desire for certainty. Music is complex, multi-dimensional, almost metaphysical.[3] For centuries, historians and philosophers and have wrangled with the depth of music’s operation. Herodotus observed how music was used by authorities to shape Egyptian youth.[4] The Ancient Greeks understood music as a mathematical system, educational cornerstone, and source of lawlessness.[5] Twentieth century American composer Aaron Copland called music the “most abstract” and “least fettered” art.[6] The difficulty of framing music persists today and has resulted in uneven copyright protection for certain genres. This paper explores how the legal distinction between authorship and performance impacts jazz improvisation in Canada.

Historically, the ambiguity between composer and performer was embraced.[7] Bach, Mozart, and Beethoven all incorporated improvisation, or spontaneous composition, into their performances.[8] As a result, a creative symbiosis flourished that produced rich and enduring work. Though Western classical music abandoned its emphasis improvisation,[9] the jazz tradition now carries the torch. Some connect the decline of improvisation in Western classical music and its emphasis on individual authorship, with the move to artificially separate composition from performance.[10] Further, early music copyright crystalized around Western classical music and written scores or “sheet music”. This history informs the law’s understanding of music. Today, copyright’s distinction between author and performer adversely impacts genres like jazz that encourage fluidity between these two creative roles. Performance and composition are often inseparable in the creative process, and as a result, difficult to ascertain.[11] When improvisation blurs this line, jazz musicians are impacted by copyright’s doctrinal distinctions.

Attributing authorship and allocating property rights is important for jazz improvisers. While musicians are entitled to performance rights under the Copyright Act (“The Act”),[12] authors can exploit economic rights through copyright ownership and moral rights protect non-economic interests.[13] However, authorship is not entirely understood. American copyright expert Jane Ginsburg notes the doctrine is surprisingly sparse despite the author’s central position as the “heart of copyright”.[14] Though scholarly attention has increased in recent years,[15] Canadian judicial treatment of authorship remains infrequent and its application is unclear. The uncertainty raises broader concerns. Understanding authorship helps track copyright’s paradigmatic goal to foster creativity,[16] which raises theoretical underpinnings that merit consideration. Ginsburg is not alone in calling for increased focus on authorship and some connect this inquiry directly to copyright’s legitimacy.[17] Accounting for authorship is important to disentangle it from the jazz performance paradigm and allocate rights to improvisers that better reflect copyright principles.

The blurred authorial-performer line further impacts jazz improvisers because Canadian copyright recognizes rights in “works of joint authorship”.[18] When multiple improvisers contribute to a musical work, discerning authorship is difficult. This task is complicated when creative processes involve spontaneous composition through improvisation. In my view, improvisation viewed through a compositional lens ought to attract authorship in addition to performance rights. Further, where multiple improvisers are involved, such performances may attract joint authorship.

Joint authorship has received considerable judicial attention in respect of popular music in the United Kingdom and others have analyzed jazz and copyright law in the American context.[19] This paper contributes by analyzing joint authorship in jazz under Canadian copyright, in light of recent doctrinal developments. Applying joint authorship to jazz improvisation, I build on previous scholarship relevant to other creative collaborations including film, literature, and software. These broader implications are important for Canadian lawyers because the modern creative landscape increasingly features widespread collaboration.[20]

This paper is organized in two parts. First, I situate jazz improvisation’s intersection with copyright law in its historical context with an overview of the jazz tradition, its performance practice, and Canadian copyright law. Next, I address leading joint authorship jurisprudence in Canada and the UK, referencing doctrinal infusion from the US. While jurisprudence on joint authorship is unsettled in Canada, the recent decision in Kogan v Martin[21] from the UK Court of Appeal offers doctrinal clarity. This could go some way to help recognize and incentivize jazz improvisation under copyright and offer greater legal certainty for other creative collaborations.

FROM THE THIRTEENTH AMENDMENT TO CARNEGIE HALL

To understand how Canadian law impacts jazz improvisation, one must recognize that copyright operates not in vacuum but a concrete social milieu.[22] Jazz remains inexorably tied to the historical struggle of Black musicians in the United States, which provides background for why copyright law does not recognize improvisation.[23] Systemic discrimination and devaluing Black artistic contributions are suggested, inter alia, as reasons jazz musicians historically received less protection under copyright law.[24]

Indeed, copyright’s intersection with jazz with cannot be dissociated from its historical context. Some argue that the way Black musicians “were routinely deprived of legal protection for creative works” is largely overlooked in the scholarship, leaving them the “invisible [artists] of copyright jurisprudence”.[25] The late Kellis Parker, esteemed Columbia University law professor and jazz trombonist, is one of few academics known to analyze jazz and law through a critical race lens. Parker brought attention to how historically African American communities improvised “rules” to navigate discriminatory law and social problems.[26]

Jazz has been called America’s “gift to the world”, amongst its great contributions to civilization.[27] Born in New Orleans at the turn of the twentieth century, jazz draws from the sounds of West Africa, Europe, and American folk music.[28] Less than eighty years after slavery was abolished, Duke Ellington[29] made his debut at Carnegie Hall in New York City.[30] The grandson of slaves, Ellington called the premiere of his orchestral jazz opus, Black, Brown, and Beige, a tonal “parallel to the history of the Negro in America”.[31]

In the 1940s, Black musicians developed a new jazz style called “bebop”. With its complex harmonies and rhythms, bebop “transformed jazz into a modern art form” and firmly grounded it in improvisation.[32] However, this music was not protected under copyright because it was not written down nor precomposed.[33] Contrafacts are jazz songs characteristic of the bebop style that juxtapose original melodies over existing harmonic structures.[34] These compositions allowed musicians to improvise melodies over popular songs, creating new works that attracted copyright protection.[35] This reflects the fact that under copyright law, melody is most readily recognized as protected expression.[36] Contrafacts sidestepped the need to obtain licences and streamed royalties back to jazz musicians.[37] In this way, bebop musicians created new property rights while developing an innovative style through improvisation. To stretch Professor Parker’s earlier remark, bebop musicians created their own “rules” around copyright.

This historical anecdote demonstrates how jazz musicians circumvented laws that did not recognize improvisation as protected expression. Stanford law professor, Mark Lemley says insufficient incentives for “radical improvers” of works enables authors of underlying works to “capture the value of … significant improvements made by others”.[38] Arguably, this point was recognized and mitigated to some degree by bebop musicians, precisely the kind of radical improvers Lemley imagines. If composers of underlying songs given new life by improvisers,[39] capture the full added value, then copyright law (then as now) does not adequately incentivize nor protect jazz improvisation.

Improvisation represents the bulk of creative expression in jazz but remains unprotected by copyright. And yet, contrafacts show that altering one variable (melody) fundamentally shifts property rights allocation. This highlights the malleable nature of intellectual property – invoking what Story J called the metaphysics of law.[40] Whereas traditional property rights tend to preserve the socio-economic status quo, intellectual property rights provide more egalitarian entry points insofar as such rights are constrained only by human imagination.[41] But of course, that is only partially true; the law must recognize value in that expression. Canadian copyright law does not recognize jazz improvisation as a valuable property interest, instead, perpetuating traditional notions of composition through the dominant paradigm of pre-existing works. This flows in part from a limited understanding of jazz improvisation.

THE ONTOLOGY OF JAZZ

Improvisation resists simple explanation.[42] Though incorporated in many genres, the term itself may not accurately convey its full impact.[43] Conceptually, North Indian classical music is most closely aligned with jazz improvisation, and like jazz, Indian music is based on oral practice and teachings, “rather than by the notation method used in the West”.[44] As a result, improvisation in this setting eludes copyright’s notion of notated, pre-existing works. Further, because jazz improvisation departs from traditional composition methods, it does not attract legal protection and improvisers are unprotected against imitation and reproduction.[45]

Improvisation is the hallmark of jazz, its raison d'ĂŞtre. Improvisation is also understood as “creating music in the moment, where the act of performance is simultaneously an act of composition …”.[46] The spontaneous nature of improvisation does not mean it is any less logical than formal composition.[47] Lee Konitz,[48] one of jazz’s most sophisticated improvisers, said “[a]s improvis[ers] … we have the desire and obligation to play as logical, well-structured … and meaningful stream of notes as possible, that add up to a valid creation.[49] Bill Evans,[50] analogized improvisation to Japanese visual art:

[They] must paint on a thin stretched parchment …in such a way that an unnatural or interrupted stroke will destroy the line or break through the parchment. Erasures or changes are impossible. These artists must practice a particular discipline, that of allowing the idea to express itself in communication with their hands in such a direct way that deliberation cannot interfere.[51]

In this way, Evans likens the parchment paper in Japanese art with the improviser’s underlying harmonic and temporal frameworks. Further, he says jazz improvisation requires “collective coherent thinking … from all members to bend for the common result”.[52] Remarkably, this description invokes the traditional joint authorship test set out by the English court in Levy v Rutley.[53] In the judgment, Keating J said joint authorship requires collective labour “in furtherance of a common design”.[54] The conceptual symmetry between Evans and Keating J is striking, suggesting room for jazz’s abstract processes within copyright’s more rigid frameworks.

Jazz improvisation is generally collaborative which complicates assigning authorship.[55] While improvisers also perform alone, group improvisation remains the dominant practice. However, the collaborative nature of jazz improvisation may prove antithetical to property law’s core principle of exclusivity.[56] This observation was made in the context of classical music, where the author suggested emphasizing individuality above collectivity appears at odds with modern notions of proprietary copyright.[57]

In sum, jazz improvisation is a spontaneous but highly organized process, and one that defies binaries along the performer-composer axis, frustrating conservative notions of copyright. However, there may be sufficient congruity between the joint authorship doctrine and jazz’s creative processes for copyright law to accommodate improvisation as protected expression.

THE CANADIAN COPYRIGHT REGIME

Canadian musical copyright originates from English law. The Statute of Anne, 1709 was the first world’s first copyright act.[58] Initially, music was denied protection. In the seminal case of Bach v Longman,[59] Lord Mansfield held that the composer’s printed scores fell within the meaning of “books and other writings” under the Statute.[60] Thus, modern music copyright is inexorably tied to the classical music canon.[61] From the outset, copyright law favoured composition over performance.[62] This tension was litigated through the eighteen and nineteenth centuries,[63] and it was only after the advent of recording technology that performance was acknowledged as a distinct legal entity.[64] The law’s earliest interpretation of musical works persists to some extent today.

English law was adopted in Canada through Imperial legislation[65] initially before the first modern copyright statute came into force.[66] Under the current Act, copyright subsists in original, musical works.[67] Musical works are defined as “any work of music or musical composition, with or without words …”.[68] However, music is not defined under the Act. The Oxford English Dictionary defines music as “[t]he art or science of combining vocal or instrumental sounds with a view to beauty or coherence of form and expression of emotion”.[69] From this, improvisation easily satisfies the plain meaning of the statutory requirements for a musical work. That said, bringing jazz improvisation under the Act’s protection requires fixation in a tangible medium,[70] which means recording the performance. Further, protecting jazz improvisation as an independent work means distinguishing it from the underlying song.

There are two ways to view jazz improvisation as protected expression under the Act. The first is as a “derivative work”. In the American context it has been suggested that because jazz improvisation is based on underlying songs, it is derivative.[71] In contrast to the US Act, derivative works are not expressly provided for in the Canadian Act. The Supreme Court of Canada has said that Canadian law provides limited protection for control and creation of derivative works, and protection is not as broad as under American law.[72]

While in a creative sense, improvisation is derivative, there is no reason why it should not attract protection as an independent work under the Act. The preferable approach is to view jazz improvisation as a new transformation of the underlying work. Under the Act, musical arrangements are protected so long as they express substantial skill and judgment.[73] In further support of the argument that jazz improvisation ought to be considered a musical work under Canadian law, the leading multilateral copyright treaty,[74] to which Canada is a party, says: “[A]daptions, arrangements of music and other alterations of … artistic work shall be protected as original works without prejudice to the copyright in the original work”.[75] Thus, improvisation involves tandem rights: the right in the underlying song, and the right that flows from authorship in the new work created during performance.

As for who qualifies as an author, the term is not statutorily defined. Authorship has been interpreted to exist as the result of original expression.[76] Two rights flow from authorship. The Act says, “the author of a work shall be the first owner of the copyright therein”.[77] Ownership allows authors to exploit works for economic benefits. The second right secured through authorship is the moral right in the work. Authors’ moral rights are recognized under the Act.[78] Moral rights can be understood from natural law theory as an one’s inherent right to be recognized as their work’s creator. This idea has its genesis in the Enlightenment and the German idealism school that considered works an extension of their author’s soul, and thus, inseverable.[79] Thus, moral rights give authors the right to preserve their work’s integrity. In the jazz arena, this idea was famously demonstrated by guitarist Pat Metheny, who accused Kenny G of infringing Louis Armstrong’s moral rights by appropriating Armstrong’s music.[80]

Though moral rights protect non-economic interests, they implicate economic benefits as when an academic relies on authorship in an article to progress their career.[81] For improvisers, this idea suggests authorship may bolster artistic reputation because it recognizes improvisation as serious work, not merely divergence from the “real” composition. While jazz improvisers also compose through traditional methods, and as noted, improvisation attracts performance rights under the Act, there is no reason in law why improvisation itself should not attract protection.

Additionally, while copyright readily recognizes individual authors or composers,[82] there is no reason why collective creativity such as group improvisation should not attract equal protection. Under the Act, joint authorship is defined as:

[A] work … produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.[83]

For comparison and later discussion of English jurisprudence, the UK Copyright, Designs and Patents Act 1988 (“CDPA”) provides nearly an identical definition for joint authorship. The CDPA defines “a work of joint authorship” as: “[A] work produced by the collaboration of two of more authors in which the contribution of each author is not distinct from that of the other author or authors”.[84] From this, Anglo-Canadian courts have generally interpreted joint authorship to require collaboration between multiple authors, and significant, but indistinct, contributions.

AUTHORSHIP

Authorship is copyright’s “bedrock principle” yet it is not entirely understood.[85] Authors ground copyright law because they create property interests and may determine ownership.[86] As noted, the Act does not define author. Similarly, the US Act and Berne Convention are silent on authorship. While the CDPA defines an author as “the person who creates [a work]”,[87] the lack of statutory guidance on creation makes this definition of limited assistance.[88] Thus, applying authorship to jazz improvisation under Canadian copyright requires a review of academic and judicial interpretations.

First, it is important to recognize authorship’s intimate connection with originality. As David Vaver notes, this does not mean the two are correlative because one does not imply the other; authors can be “unoriginal” when their effort is trivial.[89] On the other hand, international copyright scholar, Sam Ricketson makes an interesting counterpoint through the High Court of Australia’s judgment that said:

[I]n copyright law the two expressions ‘author’ and ‘original work’ have always been correlative: the one connotes the other … We find in the Oxford Dictionary … ‘author’ defined as ‘the person who originates or gives existence to anything’.[90]

Thus, there are different understandings of originality. One views originality on a continuum containing a point at which expression becomes “unoriginal”. The other sees originality as a binary insofar as the work is either copied from another source (and thus unoriginal) or it is not.

Further, there are two critical distinctions concerning authorship with respect to the idea-expression dichotomy and originality. First, the author is not the one with the idea, but the one who expresses the idea. This is because copyright protects expression not ideas, and the law distinguishes between someone who has ideas and those who express ideas. The latter is an author, the former is not. Separating ideas from expression is simple in theory, but often difficult in practice. This principle was analogized to “dressing up” an idea, where the clothing gives an unprotectable idea the required expression.[91] The Ontario Court of Appeal further clarified this point in a case involving a journalist and the estate of classical musician, Glenn Gould.[92] The Court held that Gould’s “oral utterances” to the journalist were mere ideas that were subsequently transcribed and converted to protected expression in a book.[93] Thus, the journalist was the work’s author.

The second distinction concerning originality states that authors are not those who simply execute a work in a mechanical sense. This speaks to Vaver’s point in respect of the unoriginal author. Though originality under copyright traditionally meant a work was not copied but “originated” from its author, this condition is necessary, not sufficient. In a judgment from the New Brunswick Court of Appeal, La Forest JA (as he then was), said while authors are those “who actually … compose a work”, he cautioned that authors “must not be equated to a mere scribe or amanuensis”.[94]

To illustrate, where a saxophonist performed from a jazz transcription book containing notated improvisations by another musician,[95] this expression would not attract copyright protection. While originating from the saxophonist, with sophisticated skill and creative interpretation, this reproduction would be “unoriginal”. This scenario is unrealistic in a professional setting but illustrates the concept. Such propositions and hypotheticals are unhelpful insofar as they do not say what determines valid authorship. Assuming there is fixed expression, it appears that authorship hinges on sufficient originality. As a result, the threshold for what constitutes authorial contribution remains contentious.[96] While this ambiguity offers flexibility in respect of creative processes like jazz improvisation, it creates uncertainty.

In CCH v Law Society of Upper Canada,[97] the Supreme Court of Canada articulated a “skill and judgment” threshold for originality. For a unanimous Court, McLachlin CJ said that originality “need not be creative, in the sense of being novel or unique. What is required … is an exercise of skill and judgment”.[98] Chief Justice McLachlin further qualified skill and judgment as an exercise that flows from practised ability and intellectual effort but not mechanical or trivial.[99] Again, this speaks more to insufficient originality than a precise legal criterion.

CCH is the current authority for originality in Canada. The decision clarifies the higher originality threshold of a “modicum of creativity” from American jurisprudence[100] is not the Canadian standard. While ostensibly taking a middle path approach and rejecting a higher originality standard, some maintain that CCH articulates a functionally identical standard.[101] This is because what distinguishes mechanical or trivial effort from protected expression involving skill and judgment, is some minimal creativity.[102] That said, any creative threshold, high or low, involves aesthetic judgments that the courts are ill-equipped to handle. As Holmes J famously wrote for the majority of the United States Supreme Court:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [art] outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation ... At the other end, copyright would be denied to [art] which appealed to a public less educated than the judge.[103]

The principle is widely acknowledged and compelling in theory. In practice, adhering to this proposition is more problematic, as I will return to later.    

Professor Vaver further argues originality is a contested idea in aesthetics because it “minimizes how much any work owes to its predecessors”.[104] This observation speaks to the proverbial shoulders of giants that hold up every field of human endeavour and the tradition of musical borrowing in Western classical and jazz traditions. Twentieth century masterpieces like Aaron Copland’s orchestral suite, Appalachian Spring[105] and John Coltrane’s jazz suite, A Love Supreme[106] unequivocally draw from prior sources.[107] But that does not diminish their aesthetic value and no jurist would deny these works copyright protection. Notably, the Copland piece is entirely notated and protected in its entirety, while Coltrane’s composition is largely improvised, leaving only a fraction of the overall work recognized under copyright.

Problems arise where the question of originality is close to the line. Perhaps the French courts put it best when they described originality as de gĂ©omĂ©trie variable or “shifting shape”.[108] Though a more conceptually satisfactory way to frame originality, this idea is vague as a legal criterion and antithetical to the law’s desire for certainty. In this sense, originality and creativity may frustrate legal boundaries. And yet, human creativity firmly anchors copyright law.[109]

To this point and critique of the CCH analysis, recent Canadian jurisprudence on authorship held that protected expression must indeed be creative. In Neugebauer v Labieniec, the Federal Court confirmed that authorship “conveys a sense of creativity and ingenuity”.[110] This statement not only imports a “modicum of creativity” from American law, but conflates creativity and inventiveness, a synonym for ingenuity, which is inaccurate. Neugebauer contains other analytical flaws which I will return to when I discuss joint authorship.

THE ROMANTIC GENIUS FALLACY

Canadian scholar Carys Craig discusses weaknesses in the authorship doctrine that are relevant to authorship in jazz improvisation. Craig challenges assumptions of possessive individualism embedded in modern copyright and argues its dominant notion of private property obscures creative practices.[111] In this way, Craig follows others who say that copyright “generally assumes a romantic vision of independent origination that sits uneasily with the realities of human creativity…”. [112] In the musical context, these embedded assumptions “are based on a vision of musical production as … independent and in some cases even reflecting genius”.[113] However, the romantic idea of the lonely genius is dated.[114]

Some of the most celebrated jazz improvisers are indebted to their collaborators in ways that cannot be easily parsed. John Coltrane is considered a musical genius. However, his signature sound in the landmark Coltrane Quartet would be unrecognizable without key contributions from McCoy Tyner, Jimmy Garrison, and Elvin Jones.[115] As Ginsburg notes, “… authors are not necessarily less creative for being multiple”,[116] a proposition underscored in Coltrane’s famous quartet, but also in light of two of music’s most famous joint authors, John Lennon and Paul McCartney. Arguably, Lennon-McCartney’s collaborative work during the Beatles era was more creative than their respective solo careers.

French philosopher Michel Foucault said it would be helpful to know “how the author became individualized in a culture like ours; the status we have given that author…”.[117] Craig and Ginsburg both cite Martha Woodmansee and Mark Rose’s scholarship, which reveals the “extent to which the modern concept of the author as the sole independent creator of an original work is profoundly ideological and historical”.[118] Mark Rose links the difficulty in applying copyright principles to concrete cases with the “persistence of the discourse of original genius…”.[119] In all likelihood, jazz improvisation easily satisfies any creative threshold in authorship. Without question the presumed skill and judgment standard under CCH, and almost certainly the higher American threshold. However, the romantic genius fallacy is closely tied to the creative “mastermind” theory in originality, which is relevant for assessing joint authorship in jazz improvisation.

JOINT AUTHORSHIP

The modern creative landscape is one of group collaboration.[120] Notably, collaboration in joint authorship does not require equal contribution from each author. Indeed, collaboration frequently involves individual contributions that are difficult to parse. Recall that under the Act, each author’s contribution must not be distinct. This criterion distinguishes joint works from “collective works” like poetry anthologies, which contain distinct authorial contributions.[121] While joint authorship contributions must not be distinct, they must be “significant”.[122]

The judicial task of characterizing authorial contributions as significant yet indistinct, poses a tricky conceptual problem. The analysis is necessarily fact driven and requires qualitative and quantitative assessments, as articulated by Canadian caselaw.[123] However, characterizing musical contributions in jazz improvisation in this manner is difficult, if not impossible. Further, if an author’s contribution is deemed “significant”, how is it also indistinct? According to jurisprudence, it appears the more significant each individual contribution is, the more embedded within the work it becomes, and thus, sufficiently indistinct. For instance, commenting on whether the putative author’s contribution to a screenplay was indistinct, Meade J said it infused the entire film and “trying to separate [each contribution] would be like trying to unmix purple paint into red and blue”.[124] This visual analogy best illustrates the concept of joint authorship and the difficult analysis courts engage.

With that in mind, jazz improvisation appears to satisfy the broad criterion concerning collaboration. During improvisation, jazz improvisers rely heavily on each other. In a jazz quartet for example, the drummer adds rhythmic drive, the bassist grounds harmony, the pianist provides melodic and harmonic support, while the saxophonist plays off all three musical cues. The collaborative interplay during improvisation requires coordinated effort in pursuance of a deliberate, “common design” or goal: the performance.

Determining significant, but indistinct, contributions is more difficult. This is because to assess each musician’s contribution within the performance, it is necessary to consider individual parts in isolation but cognizant of the unified work. To use the visual analogy, the task is characterizing substantially red and blue hues within the “purple” work, to determine whether each colour is sufficiently blended, or indistinct. While musicologists and expert witnesses can assist jurists, the inherent subjectivity and conceptual gymnastics involved, sheds light on why joint authorship has perplexed Canadian courts.

Canadian literature says the Act’s “definition is exhaustive and the concept of a work of joint authorship is limited to the statutory definition”.[125] However, Canadian jurisprudence has strayed from the Act. This interpretive divergence has historical roots. The joint authorship doctrine in the common law tradition traces back to the late 1800s, when Levy addressed joint authorship in respect of a play.[126] The English court said the plaintiff’s contribution failed to establish joint authorship because there was no preconcerted joint design, or deliberate collaboration. For the court, Byles J said to decide otherwise would create uncertainty, because parties might not be aware of a plurality of authors.[127] Concurring, Keating J said, “… though it may not be necessary that each should contribute the same amount of labour, there must be a joint labouring in furtherance of a common design”.[128] In the main, Levy has established the idea of deliberate collaboration towards a common design, with significant, but not necessarily equal contributions, as hallmarks of joint authorship.[129]

The UK courts have further interpreted Levy to mean subjective intention is irrelevant for joint authorship. American caselaw evolved differently. In Childress v Taylor,[130] the Federal Circuit Court interpreted the meaning of “joint work” under the US Act. For comparison and clarity, the statute provides: “A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”.[131] In its decision, the Court said the statute’s limited wording made “relevant only the state of mind regarding the unitary nature of the finished work”.[132] Under this interpretation, the US Act’s meaning appears in harmony with the UK and Canadians Acts. However, under a purposive interpretation, the Court said Congress would not have contemplated this limited inquiry to extend joint authorship without the mutual intent of each contributor to “regard themselves as joint authors”.[133] Thus, American jurisprudence expanded the traditional Levy test to require intent.

In Neudorf v Nettwerk Productions Ltd,[134] the British Columbia Supreme Court relied on Childress to deny the plaintiff drummer joint authorship in four songs by Canadian musician Sarah McLachlan. Reaching this conclusion, Cohen J noted there was little Canadian law to guide interpretive meaning of “collaboration” in the Act’s definition of joint authorship.[135] As a result, he looked to American law. Even though the Canadian Act is silent on intent, Cohen J concluded that common law and statutory definitions of joint authorship in the US, UK, and Canada all confirmed intent was required for collaboration.[136] 

In reaching his decision, Cohen J appears to rely on Montague Smith J’s concurring judgment in Levy, which said, “Here … [t]here seems to have been no agreement originally that they should be joint authors”.[137] Justice Cohen interpreted Levy to stand for the proposition that joint authorship requires prior agreement, or some degree of mutual intent, between authors.

In one of Neudorf’s more problematic passages for jazz improvisation, Cohen J discarded a broader approach to assessing creative collaborations. The rejected theory emphasized the dynamic nature of collaboration and cautioned against focusing too narrowly on individual contributions because it obscures the creative process.[138] In rejecting this approach, Cohen J said it “requires neither that the putative joint author contribute original expression, nor that the parties intend to collaborate”.[139] However, the basis for this justification is dubious. Authorship, as a prerequisite for joint authorship, requires original expression. Thus, joint authorship cannot extend to someone who does not contribute original expression. What Cohen J was merely saying is that intent is necessary for collaboration.

Neudorf established the idea that subjective intent to co-author musical works is a condition precedent for collaboration. This is wrong in law and does not reflect creative practice. The intention to collaborate towards a “common design” is distinct from the intention to form joint authorship under law. There may be instances where author to intend to co-author a piece of music, but that speaks to formality rather than substance. Evidence of indistinct contributions with a view to create a unified work will sufficiently demonstrate collaboration, and thus, satisfy the statutory definition for joint authorship. Interestingly, given the mirror joint authorship provisions in the UK and Canadian Acts, English courts have considered and rejected Neudorf on multiple occasions.[140] For example, in Hodgens v Beckingham, Jonathan Parker LJ suggests the Neudorf decision went beyond the Act’s wording and was policy driven.[141] However, Neudorf was the leading authority on joint authorship in Canada until the Federal Court revisited this issue in Neugebauer v Labieniec.[142]

The authorship dispute in Neugebauer involved a Polish-language book commissioned by the Applicant, who collaborated with a translator to write about his childhood experiences during the Holocaust. Awarding joint authorship, Simpson J said the expanded test from Neudorf had not been treated at the appellate level and as a result decided not to follow it. However, while Simpson J’s decision expressly rejects the expanded American test, her analysis relies on mutual intent to some extent. Awarding the translator joint authorship in the book, Simpson J concluded that “the parties intended that their contributions be joined in furtherance of a common design”.[143] Some suggest this decision does not adequately resolve the role of mutual intention in joint authorship nor unpack the modern application of the traditional test in Levy.[144] The combined result of Neudorf and Neugebauer is uneven application of joint authorship in Canadian jurisprudence.

Today, there are two approaches to joint authorship in Canada – in theory. In the joint decisions I have analyzed post-Neugebauer, one authorship claim failed on the idea-expression dichotomy,[145] one failed on substantial contribution but suggests mutual intent may or may not be required,[146] one judgment appears to endorse both Neudorf and Neugebauer in obiter without applying either,[147] and one cites Neugebauer but inexplicably applies Neudorf.[148] In the only post-Neugebauer decision involving music and joint authorship, the Federal Court did not refer to Neudorf, Neugebauer, nor any Canadian caselaw. Instead, Rennie J in Pinto v Bronfman Jewish Education Centre,[149] engaged the joint authorship analysis entirely from a statutory and treatise perspective. Although the joint authorship analysis is cursory, its avoidance of current doctrinal confusion is noteworthy. In deciding the putative composer was a joint author, Rennie J strictly relied on the statutory definition with guidance from literature.[150] John McKeown previously noted, in the context of authorship and musical collaboration:

… where two persons collaborate in composing a comic opera … the opera is a work of joint authorship and neither can acquire copyright independently of the other … The contributions of each joint author need not be equal and different portions of the work may be created by different individuals.[151]

Justice Rennie’s analysis reflects a strict understanding of joint authorship and one more faithful to The Act. While the facts in this case did not require a rigorous analysis, Rennie J’s approach suggests statutory fidelity may provide the most obvious and clear path to analytical clarity.  

Recent judicial treatment of joint authorship in Canada illustrates the current doctrinal confusion. In Seggie c Rooftop Games Inc,[152] the Quebec Superior Court considered joint authorship in respect of a computer program. Justice Roy referred to joint authorship principles, referencing Neugebauer directly but noting, “there is a line of case law that also considers whether or not the parties had a common intention to create a work of joint authorship to be relevant” [translation].[153] Justice Roy denied authorship due to lack of intention.[154] Although the decision does not cite Neudorf, Roy J’s analysis implicitly relies on the expanded test.

THE MASTERMIND THEORY

Judicial deference to the “ultimate arbiter” or creative decision-maker in determining joint authorship perpetuates power imbalances and favours conservative recognition of authorship.[155] A leading example from American caselaw involved a plaintiff who argued his collaboration with filmmaker Spike Lee on the movie Malcolm X entitled him to joint authorship.[156] Because Lee had ultimate discretion and control over the final product, the court denied the plaintiff’s claim. This decision was criticized for its deference to senior collaborators which some fear may “distance copyright from its core justification: incentivizing and rewarding authors”.[157]

The American approach can be compared with two English cases. In Hadley v Kemp,[158] the High Court considered joint authorship in the band “Spandau Ballet”. The plaintiff argued his improvised saxophone solo on the hit song, True was a significant contribution and warranted joint authorship. Justice Park held the solo was merely a “matter of performance … just the sort of thing which any accomplished professional saxophonist would have provided”.[159] In this way, Park J distinguished original expression generally, from original expression in joint authorship, suggesting a higher bar for originality in joint authorship than individual authorship. Further, the idea that others would have contributed something of similar quality to the plaintiff’s solo is beside the point. As Holmes J said, copyright law is not concerned with aesthetic quality.

It seems Park J concluded the plaintiff was a “mere scribe” mechanically exercising the solo with instructions from the “mastermind”, or true author. Park J’s analysis in Hadley was challenged, notably by Richard Arnold, who now sits on the Court of Appeal, who said, “the correctness of Park J’s analysis is open to serious doubts”.[160] In his role as barrister, Arnold critiqued Park J’s double standard for originality. Arnold said there was no reason in law why the criterion of originality should not be applied equally to joint and individual authorship.[161] This judicial inconsistency has been observed by others.[162]

Arnold’s critique provides support for protecting jazz improvisation in Canada. If a short improvisatory segment in the popular music context ought to attract copyright protection under the CDPA, surely extended improvisation under the jazz paradigm merits protection under the Canadian Act. Further, Arnold noted a third party could copy the plaintiff’s saxophone solo and there would be no remedy.[163] This concern was raised with respect to recorded jazz because improvisation is vulnerable to unauthorized transcriptions.[164]

In Brighton v Jones,[165] another joint authorship case decided by Park J, the plaintiff was denied authorship because one author had “final say”. The analysis is problematic for different reasons than Hadley. The fact that one author ultimately controlled what was included in the final product does not foreclose joint authorship, but rather goes to ownership quantum. This point is underscored by multiple joint authorship cases in the UK.[166] Of the six decisions awarding joint authorship I have analyzed, only one allocated equal ownership.[167]

Hadley and Brighton best illustrate the traditional dichotomy between authorship and performance. The analyses separate musical expression into valid authorship and the unoriginal “mere performer” who simply executes. However, Judge Learned Hand previously challenged this idea when he said:

… the performer has a wide choice, depending upon [their] gifts, and this makes [their] rendition pro tanto quite as original a ‘composition’ as an ‘arrangement’ or ‘adaption’ of the score itself …[168]

Similarly, the jazz improvisor is “… more than a competent carpenter who renders audible another person’s creation. She is a creator is her own right…”.[169] Further, the approach in Hadley and Brighton is difficult to justify in the jazz context where group improvisation allocates creative decision-making equally, manifesting a strongly democratic ethos.[170] While creative and administrative leadership roles exist in the jazz context, improvisation itself generally resists these imbalances. Thus, the mastermind theory has little basis in jazz. Additionally, the recent landmark decision in Kogan v Martin signals that Hadley and Brighton are no longer good law.

A NEW PRO-COLLABORATION FRAMEWORK?

Kogan v Martin concerned the screenplay for, “Florence Foster Jenkins”. The film portrays a flamboyant New York socialite, who loved music and aspired to become an opera singer despite her notoriously terrible voice. The authorship dispute arose between ex partners who collaborated on the screenplay during their romantic relationship. The defendant was a professional screenwriter while the plaintiff was an opera singer. The central issue was whether the plaintiff’s contributions to the screenplay entitled her to joint authorship. At first instance, HHJ Hacon decided in favour of the defendant.[171] The decision underscores judicial propensity to defer to the ultimate arbiter.[172] Because the defendant was a professional screenwriter and exclusively responsible for the actual writing, the judge discounted the plaintiff’s contributions.

The Court of Appeal took a different approach. Rejecting the lower court’s narrow understanding of joint authorship, Floyd LJ outlined a new principled framework for joint authorship, closely tied to the statutory wording.[173] At retrial, under the new joint authorship test, the judge concluded there was an understanding that the defendant would “hold the pen”, but the couple knew they were “on a path towards a screenplay” or common design.[174] The court distinguished this understanding from mutual intent to create joint authorship, rejecting the intent requirement. Thus, the plaintiff’s contributions “infused the entire film” attracting authorship.[175]

The Court of Appeal’s decision in Kogan is important because it helps clarify much of the doctrinal uncertainty I have outlined. Establishing a pro-collaboration theme at the outset, the opening paragraph of Floyd LJ’s judgment consists of just one sentence that reads: “[t]his is the judgment of the court to which all its members have contributed”.[176] Lord Justice Floyd said though joint authorship must be assessed as a unitary concept, it helps to break down each statutory requirement into four main elements: collaboration, authorship, contribution, and non-distinctness.[177]

Kogan speaks to the importance of assessing collaboration before individual contribution, emphasizing that creative context matters.[178] The decision underscores the nature of protectable subject matter as critical in determining collaboration. Here, the film’s subject matter, including the New York music scene and opera world, was relevant because the screenplay was meant to be performed, not read. This meant that the plaintiff’s non-textual contributions, including character and performance elements, added substantially to the film. In this way, the Court of Appeal’s decision attempts to oust latent problems in the joint authorship doctrine, including the romantic genius fallacy and mastermind theory.[179] The Court of Appeal’s approach is similar to Rennie J’s approach in Pinto, insofar as fidelity to statute. Canadian courts ought to take this lead, incorporating flexibility from the Kogan framework and its pro-collaborative ethos, with a return to first principles and Canadian statutory requirements.

CONCLUSION

Authorship embodies fundamental copyright principles that remain controversial, particularly where default creative practices are collaborative.[180] I have presented the primary jazz performance paradigm as a dynamic process, with interplay between improvisers’ dual roles as performers and composers. Because of the law’s desire for certainty and tendency to see musicians in binary authorial-performer roles, there must be legal flexibility vis-Ă -vis joint authorship that accounts for idiosyncrasies of jazz performance but with some degree of consistency. Otherwise, valuable creative practices may elude traditional notions of music copyright, resulting in undervalued creative expression and unpredictable litigation.

Copyright’s crystallization around musical expression vis-Ă -vis Western classical music impacts modern copyright’s intersection with jazz today. Though the body of joint authorship cases in Canada is limited, the doctrine’s application is inconsistent, and at times, contradictory. Going forward, increased scholarly attention to authorship in Canada may elucidate conceptual hurdles the persist in joint authorship cases. While the landmark decision in Kogan offers clarity in the face of prevailing doctrinal confusion, its implications for joint authorship in Canada remain to be seen.

Bringing jazz improvisation under copyright’s ambit must consider potentially adverse impacts on the creative process itself, and the possibility that legal protection may not add value.[181] Similarly, the complex logistics of assigning rights to jazz improvisers may not be justified.[182] Examining these concerns would add to my discussion, for jazz and other music genres, with insight for other creative collaborations. Such inquiry must consider whether the mutual intent requirement is upheld or dismissed in Canadian law. As noted, recent decisions on joint authorship suggests the intent requirement remains equivocal in Canada.

Jazz musician Charlie Parker once stated that music has no boundaries.[183] Indeed, music is constrained only by imagination and operates in complex ways that have never been fully articulated. However, the legal distinction between authorship and performance impacts jazz improvisers because it imposes concrete limitations on their rights. As a result, the impact of copyright law on jazz’s legacy as a valued performance art must be questioned.

ENDNOTES

[1] Folsom v Marsh, 9 F Cas 342 at 344 (CCD Mass 1841).

[2] American Jazz Saxophonist (1920-1955), as quoted in a 1949 Down Beat magazine interview: J D Considine, “The Sound and Myth of Charlie Parker at 100” (10 January 2020), online: Down Beat.

[3] Arthur Schopenhauer, Die Welt als Wille und Vorstellung, Book 3 § 52 (Munich: Deutscher Taschenbuch Verlag, 2008) 339-41.

[4] Curt Sachs, The Rise of Music in the Ancient World East and West (New York: Norton, 1943) at 254.

[5] Donald Grout & Claude Palisca, A History of Western Music, 6th ed (New York: Norton, 2001) at 2-5; Plato, The Republic – Book IV, Benjamin Jowett trans, 3rd ed (Oxford: Oxford University Press, 1908) at 424c.

[6] Aaron Copland, Music and Imagination (Cambridge, MA: Harvard University Press, 1952) at 7.

[7] Mira Sundara Rajan, Moral Rights: Principles, Practice and New Technology (Oxford: Oxford University Press, 2011) at 364.

[8] Arthur Mendel, Christoph Wolff & Hans T David, eds, The New Bach Reader: A Life of Johann Sebastian Bach in Letters and Documents (New York: Norton, 1999) at 8; Robert Levin, “Improvising Mozart” in Gabriel Solis & Bruno Nettl, eds, Musical Improvisation: Art, Education, and Society (Champaign, IL: University of Illinois, 2009) at 143. Oscar George Theodore Sonneck, Beethoven: Impressions by His Contemporaries (Mineola, NY: Dover, 1927) at 15, 22-31; Robin Moore, “The Decline of Improvisation in Western Art Music: An Interpretation of Change” (1992) 23 Intl Rev Aesthetics & Soc Music 61 at 62-63, 79 [Moore].

[9] Derek Bailey, Improvisation: Its Nature and Practice in Music (London: Da Capo Press, 1992) at 29-38 [Bailey]; Andrew Kania, “All Play and No Work: An Ontology of Jazz” (2011) 69:4 J Aesthetics & Art Crit 391 at 393-394.

[10] Olufunmilayo B Arewa, “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context” (2006) 84 NC L Rev 547 at 611 [Arewa 2006], citing: Moore, supra note 8 at 79.

[11] Andreas Rahmatian, Copyright and Creativity: The Making of Property Rights in Creative Works (Cheltenham, UK: Edward Elgar, 2011) at 191.

[12] Copyright Act, RSC, 1985, c C-42, s 15(1) [The Act].

[13] Ibid, ss 14,1(1), 28.2; See also: Daniela Simone, “Kogan v Martin: A New Framework for Joint Authorship in Copyright Law” (2020) 83:4 Mod L Rev 877 at 877 [Simone 2020].

[14] Jane Ginsburg, “The Concept of Authorship in Comparative Copyright Law” (2003) 52 DePaul L Rev 1063 at 1064 [Ginsburg].

[15] Scholarship on this issue has increased in recent years: see eg, Carys J Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright (Northampton, MA: Edward Elgar Press, 2011) [Craig 2011]; Daniela Simone, Copyright and Collective Authorship (Cambridge: Cambridge University Press, 2019) [Simone 2019]; Neerav Srivastava “Romance and Fiduciary Relationships between Joint Authors and/or Co-Owners of Copyright” (2020) 32 IPJ 249 [Srivastava].

[16] Ginsburg, supra note 14 at 1068.

[17] Simone 2019, supra note 15 at 63, 69, citing: Lionel Bently & Anne Barron, “Discontinuities between legal conceptions of authorship and social practices: What, if anything, is to be done?” in M van Eechoud, ed, The Work of Authorship (Amsterdam: Amsterdam University Press, 2014) at 237; Anne Barron, “Copyright and the Claim of Art” (2002) 4 IPQ 368 at 399.

[18] The Act, supra note 12, s 2.

[19] See eg, Jonathan Z King, “The Anatomy of a Jazz Recording: Copyrighting America’s Classical Music” (1990-1991) 40 Copyright L Symp 277 [King]; John R Zoesch III, “Discontented Blues: Jazz Arrangements and the Case for Improvements in Copyright Law” (2006) 55 Cath U L Rev 867; [Note] “Jazz Has Got Copyright and that Ain’t Good” (2005) 118:6 Harv L Rev 1940; Stephen R Wilson, “Rewarding Creativity: Transformative Use in the Jazz Idiom” (2003) U Pitt J Tech L 7 Pol’y [Wilson]; Warren Shaw “Copyrighting Improvising Music” (1982) 32 Copyright L Symp 109 [Shaw]; Marshall J Nelson, “Jazz and Copyright: A Study in Improvised Protection” (1971) 21 Copyright L Symp 35.

[20] See eg, Daniela Simone, “Recalibrating the Joint Authorship Test: Insights from Scientific Collaborations” (2013) 26 IPJ 111; Simone 2019, supra note 15 at 1.

[21] Kogan v Martin, [2019] EWCA Civ 1645 per Floyd LJ [Kogan CA].

[22] K J Greene, “Copyright, Culture & (and) Black Music: A Legacy of Unequal Protection” (1998) 21 Hastings Comm & Ent LJ 339 at 358-59 [Greene].

[23] Wilson, supra note 19 at 6.

[24] Greene, supra note 22 at 356-57.

[25] Greene, supra note 22 at 340.

[26] Columbia Law School, “The Legacy Project: Professor Kellis E. Parker” (last visited 3 April 2021), online: Columbia Law School; Jayson Blair, “Kellis E. Parker, Law Professor and Activist, Dies at 58” (16 October 2000), online: The New York Times.

[27] Along with the United States Constitution and baseball, see: Ken Burns, “Preface” in Geoffrey C Ward, Jazz: A History of America’s Music (New York: Alfred A Knopf, 2000) at vii.

[28] Ibid at 2-35. Also, see AndrĂ© Hodier’s classic treatise: Jazz: its Evolution and Essence, David Noakes (trans) (New York: Grove Press, 1956).

[29] Edward Kennedy “Duke” Ellington (1899-1970): American jazz composer, arranger, and band leader.

[30] Carnegie Hall Icons, “Duke Ellington: Pianist, Composer, and Band Leader” (last visited 3 April 2021), online: Carnegie Hall.

[31] Ibid.

[32] Candace G Hines, “Black Musical Traditions and Copyright Law: Historical Tensions” (2005) 10 Mich J Race & L 463 at 482-83.

[33] The current American and Canadian Acts now recognize works as “fixed” in a tangible medium the moment they are recorded, see: The Act, supra note 12, s 3(1.1). However, improvisation is not recognized as a distinct work notwithstanding its fixation.

[34] Barry Kernfeld, ed, The New Groove Dictionary of Jazz, 2nd ed, (Oxford: Oxford University Press, 2002).

[35] David H Rosenthal, Hard Bop: Jazz and Black Music 1955-1965 (New York: Oxford University Press, 1992) at 12.

[36] While underlying harmony generally does not attract copyright protection, at least one court has found as a matter of law, harmony can be the subject of copyright. See: Tempo Music Inc v Famous Music Corp, 838 F Sup (2d) 162 at 168-69 (NY 1993), where the estates of Duke Ellington and Billy Strayhorn, one of the most notable joint composer collaborations in jazz history, argued this point.

[37] King, supra note 19 at 308.

[38] Mark A Lemley, “The Economics of Improvement in Intellectual Property Law” (1997) 75 Tex L Rev 989 at 1022-23.

[39] King, supra note 19 at 285.

[40] Folsom, supra note 2.

[41] Greene, supra note 22 at 387.

[42] Bailey, supra note 9 at 64.

[43] Ali Akbar Khan & George Ruckert, The Classical Music of North India: Volume One – The First Year’s Study (New Delhi: Munshiram Manoharalal Publishers Ltd, 2012) at 283.

[44] Ravi Shankar, “On Appreciation of Indian Classical Music” (last visited 3 April 2021), online: The Ravi Shankar Foundation.

[45] King, supra note 19 at 310.

[46] Larisa Mann, “If It Ain’t Broke … Copyright’s Fixation Requirement and Cultural Citizenship” (2011) 34:2 Colum J L & Arts at 205 [Mann].

[47] King, supra note 19 at 312.

[48] Lee Konitz (1917-2020): American jazz saxophonist.

[49] Andy Hamilton, Lee Konitz: Conversations on the Improviser’s Art (Ann Arbor: University of Michigan Press, 2007) at 111.

[50] Bill Evans (1929-1980): American jazz pianist.

[51] Miles Davis, Kind of Blue, CD (New York: Columbia Records, 1959) [liner notes].

[52] Ibid [emphasis mine].

[53] Levy v Rutley, (1870-71) LR 6 CP 523 at 977, where Keating J (concurring) said of joint authorship, “… there must a joint labouring in furtherance of a common design” [emphasis mine] [Levy].

[54] Ibid.

[55] Mann, supra note 46 at 209.

[56] Mann, supra note 46 at 209-211.

[57] Dawn Leung, “Did Copyright Kill Classical Music” (2014) 3:2 Ariz St U Sports & Ent LJ 138 at 140.

[58] 8 Anne c 21 (UK). Formally named: An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the Times therein mentioned.

[59] Bach v Longman, (1777) 98 Eng Rep 1274 (KB), 2 Cowper 623 (1777).

[60] Ibid at 624.

[61] Arewa 2006, supra note 10 at 550.

[62] Paul ThĂ©berge, “Technology, Creative Practice and Copyright” in Simon Frith & Lee Marshall, eds, Music and Copyright, 2nd ed (New York: Routledge, 2004) at 140.

[63] Derek Miller, Copyright and the Value of Performance 1770-1911 (Cambridge: Cambridge University Press, 2018) at 57.

[64] Ibid at 15.

[65] Ratified by the Canada Copyright Act, 1875, 38-39 Vic c 53, cited in SC 1876.

[66] Sunny Handa, Copyright Law in Canada (Markham, ON: Butterworths, 2002) at 54-55, citing: Copyright Act, SC 1921 1 & 2 Geo V, c 24 (UK).

[67] The Act, supra note 12, s 5(1).

[68] The Act, supra note 12, s 2.

[69] William R Trumble et al, eds, Shorter Oxford English Dictionary on Historical Principles, 5th ed (Oxford: Oxford University Press, 2002).

[70] ThĂ©berge v Galerie d’Art de Petit Champlain Inc, 2002 SCC 34 at para 25 per Binnie J [ThĂ©berge]; Grignon v Roussel, (1991) 38 CPR (3d) 4 (FCTD) at paras 3, 11; Canadian Admiral Corp v Rediffusion Inc, [1954] 20 CPR 75, 1954 Ex CR at 86 per Cameron J.

[71] King, supra note 19 at 293.

[72] Théberge, supra note 70 at paras 70-73 per Binnie J.

[73] John S McKeown, Fox on Canadian Law of Copyright and Industrial Designs, 4th ed (Toronto, ON: Carswell, 2012) at 9:8(a) [Fox], citing: Wood v Boosey (1868), 9 B & S 175, where the arranger of an orchestral opera score was the work’s author.

[74] Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 UNTS 22 (revised 24 July 1971).

[75] Ibid at art 2(3).

[76] Neudorf v Nettwerk Productions Ltd, [1999] BCJ No 2831, 3 CPR (4th) 129 at 18 [Neudorf].

[77] The Act, supra note 12, s 13(1).

[78] The Act, supra note 12, ss 14.1(1), 17.1(1).

[79] Daniel J Gervais, “The Purpose of Copyright Law in Canada” (2005) 2:2 UOLTJ 315 at 319, 322.

[80] Tony Whyton, Jazz Icons: Myths and the Jazz Tradition (Cambridge, UK: Cambridge University Press, 2013) at 57-81. While Metheny’s argument was used in a non-legal sense, it illustrates the concept.

[81] Srivastava, supra note 15 at 256.

[82] Simon Frith & Lee Marshall, “Making Sense of Copyright” in Simon Frith & Lee Marshall, eds, Music and Copyright, 2nd ed (New York: Routledge, 2004) at 18.

[83] The Act, supra note 12, s 2 [emphasis mine].

[84] Copyright, Designs and Patents Act 1988, c 48 (UK) s 10(1) [emphasis mine] [CDPA].

[85] Alan L Durham, “The Random Muse: Authorship and Indeterminacy” (2002) 44 Wm & Mary L Rev 569 at 571, citing Feist Publications Inc v Rural Telephone Service Co, 449 US 340 (1991) at 347.

[86] Craig 2011, supra note 15 at 11; Under The Act, s 13(1), authors are first in line to claim ownership.

[87] CDPA, supra note 84, s 9(1) [my emphasis].

[88] Ginsburg, supra note 14 at 1069.

[89] David Vaver Copyright Law at 73-74 [Vaver Copyright].

[90] Sam Ricketson, “Common Law Approaches to the Requirement of Originality” in Catherine Ng, Lionel Bently & Giuseppinna D’Agostino, eds, The Common Law of Intellectual Property: Essays in Honour of Professor David Vaver (London: Hart Publishing, 2010) at 229 [Ng et al], citing: Sands & McDougall, (1917) 23 CLR 49.

[91] Donoghue v Allied Newspapers Ltd, [1938] 1 Ch 106 at 109.

[92] Gould Estate v Stoddart Publishing Co, [1998] OJ No 1894, 80 CPR (3d) 161 (ONCA) per Finlayson JA.

[93] Ibid at para 23.

[94] John Maryon International Ltd v New Brunswick Telephone Co Ltd, [1982] NBJ No 387, 141 DLR (3d) 193 (NBCA) at para 144.

[95] For eg, The Charlie Parker Omnibook contains 60 of Parker’s notated improvisations and is widely used as an educational tool for technique and harmony.

[96] Vaver Copyright, supra note 89 at 75.

[97] CCH v Law Society of Upper Canada, 2004 SCC 13.

[98] Ibid at para 16.

[99] Ibid at para 16.

[100] Feist Publications v Rural Telephone Service, 499 US 340 (1991) per O’Connor J.

[101] Daniel J Gervais, “Canadian Copyright Law Post-CCH” (2004) 18 IPJ 131 at 139.

[102] Ibid.

[103] Bleistein v Donaldson Lithographing Co, 188 US 239 (1903).

[104] David Vaver, Intellectual Property Law, 2nd ed (Toronto: Irwin Law, 2011) at 103 citing, generally: Lior Zemer, The Idea of Authorship in Copyright (London: Routledge, 2007).

[105] Aaron Copland, Appalachian Spring (first presented at the Library of Congress, Washington DC, October 1944) –awarded the 1945 Pulitzer Prize for Music: The Pulitzer Prizes, “1945 Pulitzer Prizes” (last visited 3 April 2021), online: Pulitzer.org.

[106] John Coltrane, A Love Supreme, CD (New York: Impulse! Records, 1965) – considered one of the greatest jazz albums of all time.

[107] Copland uses an 1848 Shaker song, Simple Gifts; Coltrane borrows in part from the 1952 song, Bernie’s Tune, and some say he draws heavily from “slave spirituals”, see: Kellis E Parker, “The Business of Music” (1999-2000) 2:2 Intl Jazz Arch 36 at 36.

[108] Ginsburg, supra note 14 at 1081.

[109] Ginsburg, supra note 14 at 1092.

[110] Neugebauer v Labieniec, 2009 FC 666 at 36, affd 2010 FCA 229 [Neugebauer].

[111] Craig 2011, supra note 15 at 11.

[112] Carys Craig “Out of Tune: Why Copyright Needs Music Lessons” in Courtney B Doagoo, Mistrale Goudreau & Madelaine Saginur, eds, Intellectual Property for the 21st Century (Toronto: Irwin Law, 2014) at 48; See also: Peter Jaszi, “Contemporary Copyright and Collective Creativity” in Martha Woodmansee & Peter Jaszi, eds, The Construction of Authorship: Textual Appropriation in Law and Literature (Durham, NC: Duke University Press, 1994) at 29; Martha Woodmansee, “Genius and the Copyright” in Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia University Press, 1994) at 35-39, 52-53.

[113] Arewa 2006, supra note 10 at 551.

[114] Srivastava, supra note 15 at 263.

[115] Together, Coltrane (1926-1967), Tyner (1938-2020), Garrison (1934-1976) and Jones (1927 - 2004) formed this influential group from 1962-1965, subsequently known as the “Classic Quartet”.

[116] Ginsburg, supra note 14 at 1065.

[117] Michel Foucault, “What is an Author” in Paul Rabinow, ed, The Foucault Reader (New York: Pantheon Books, 1984) at 101.

[118] Craig 2011, supra note 15 at 12; Ginsburg, supra note 14 at 1065.

[119] Craig 2011, supra note 15 at 21.

[120] Craig 2011, supra note 15 at 12; Srivastava, supra note 15 at 263.

[121] The Act, supra note 12, s 2.

[122] Neudorf, supra note 76 at para 59; Cameron Hutchison, Digital Copyright Law (Toronto: Irwin Law, 2016) at 55.

[123] Neudorf, supra note 76 at para 46.

[124] Kogan v Martin, [2021] EWHC 24 (Civ) at para 323 [Kogan Retrial].

[125] Fox, supra note 73 at 17:2.

[126] Levy, supra note 53 at 977.

[127] Levy, supra note 53 at 977.

[128] Levy, supra note 53 at 977.

[129] Alison Firth, “Music and co-authorship/co-ownership” in Andreas Rahmatian, ed, Concepts of Music and Copyright: How Music Perceives Itself and How Copyright Perceives Music (Cheltenham, UK: Edward Elgar, 2015) at 146.

[130] Childress v Taylor, 945 F (2d) 500 at 507 (2nd Cir 1991) [Childress].

[131] Copyright Act, 17 USC § 101 (1976).

[132] Childress, supra note 130 at 507.

[133] Childress, supra note 130 at 507.

[134] Neudorf, supra note 76.

[135] Neudorf, supra note 76 at 68.

[136] Neudorf, supra note 76 at paras 68, 71, 88.

[137] Neudorf, supra note 76 at para 67, citing: Levy, supra note 53 at 977 [Cohen J’s emphasis].

[138] Neudorf, supra note 76 at para 61.

[139] Neudorf, supra note 76 at para 63.

[140] Kogan CA, supra note 21; Brighton v Jones, [2004] EWHC 1157 (Ch) [Brighton]; Hodgens v Beckingham, [2003] EWCA Civ 143 [Hodgens].

[141] Ibid (Hodgens) at para 53; cited with approval in, Martin v Kogan, [2019] EWCA Civ 1645 at para 49.

[142] Neugebauer, supra note 110.

[143] Neugebauer, supra note 110 at para 43 [emphasis mine].

[144] Richard Stobbe, “What Qualifies as Joint Authorship in Software” (2016) 32:1 CIPR 25 at 32-33.

[145] Andrews v McHale, 2016 FC 624 per Southcott J.

[146] Atlantic Canada Regional Council of Carpenters, Millwrights, and Allied Workers v Marine Environmental Training Institute Ltd, 2014 NSSC 64, at paras 21, 24.

[147] Waldman v Thompson Reuters Corp, 2012 ONSC 1138. The main point at issue was certifying a class action.

[148] Seggie c Rooftop Games Inc, 2015 QCCS 6462 [Seggie].

[149] Pinto v Bronfman Jewish Education Centre, 2013 FC 945.

[150] Ibid at paras 136-39.

[151] Ibid at para 138 citing: Fox, supra note 94 at 13.

[152] Seggie, supra note 148.

[153] Seggie, supra note 148 at para 59 [emphasis mine].

[154] Seggie, supra note 148 at paras 60, 67.

[155] Srivastava, supra note 15 at 263.

[156] Aalmuhammed v Lee, 202 F (3d) 1227 (9th Cir 2000).

[157] Simone 2019, supra note 15 at 66. See also: F J Dougherty, “Not a Spike Lee Joint? Issues in Authorship of Motion Pictures Under US Copyright Law” (2001) 49 UCLA L Rev 225.

[158] Hadley v Kemp, [1999] EMLR 589.

[159] Ibid at 591.

[160] Richard Arnold, “Are Performers Authors?” (1999) 21:9 EIPR 464 at 468 [Arnold].

[161] Ibid at 467.

[162] Daniela Simone 2020, supra note 13 at 886, citing: Lionel Bently, “Copyright and the Death of the Author in Literature and Law (1994) 57 MLR 973 at 981.

[163] Arnold, supra note 160 at 468-69.

[164] King, supra note 19 at 279.

[165] Brighton, supra note 140.

[166] See: Bamgboye v Reed, [2002] EWHC 2922, where the plaintiff joint author was awarded 33% ownership; Stuart, supra note 185 at 463 where the plaintiff drummer was awarded joint authorship with 25% ownership; and Brown v Mcasso, [2005] EWCA Civ 1546 per Neugeberger LJ, where the plaintiff who contributed rap lyrics was awarded joint authorship and 10% ownership.

[167] Hodgens, supra note 140. The other cases ranged from 10% to 40%.

[168] Capitol Records Inc v Mercury Records Corp, 211 F (2d) 657 at 664 (2nd Cir 1955), per L Hand J (dissenting).

[169] King, supra note 19 at 324.

[170] See eg, Jonathan A Beyer, “The Second Line: Reconstructing the Jazz Metaphor in Critical Race Theory” (2000) 88:3 Geo LJ 537 at 552 where the author suggests the “jazz republic” metaphor references an ideal Platonic community in which the needs of individuals and the community are balanced for the greater good.

[171] Kogan v Martin, 2017 EWCH 2927 IPEC at para 85.

[172] Simone 2020, supra note 13 at 879.

[173] Kogan CA, supra note 21 at para 53.

[174] Kogan Retrial, supra note 124 at 313.

[175] Kogan Retrial, supra note 124 at para 417 (awarding 20% ownership share in the copyright).

[176] Kogan CA, supra note 21 at para 1 [my emphasis].

[177] Kogan CA, supra note 21 at para 30.

[178] Kogan CA, supra note 21 at paras 33, 109.

[179] Simone 2020, supra note 13 at 891.

[180] Simone 2020, supra note 13 at 876.

[181] Mann, supra note 46 at 207.

[182] King, supra note 19 at 317.

[183] Parker, supra note 2.