As a lifelong musical theatre fan, my current obsession is Mozart, the Rock Opera (the “Musical”).[1] I recently came across some incredible Fanart that got me pondering all the copyright issues between fanart and the original Musical.
The Musical is French, with no official adaptions to other languages. Yet, some very talented Chinese fans have translated the songs into Chinese, recorded their versions, laid the audio over the original video, and shared them on a video site in China.[2] The work was incredible! It conveyed the same meaning as the original songs while incorporating various Chinese slang, idioms, and cultural references. It even rhymed with the original French lyrics, and, at various parts, the Chinese phrases almost sounded like the original French words! It was not a literal, mechanic translation; it was a beautiful piece of literary work sung by talented voices.
This is ripe with all sorts of copyright issues: the copyright in the Fanart, whether it is copyright infringement, whether it could be saved by fair dealing, the moral rights in the original Musical, and so on. Let us set aside the conflicts of law issues and assume all this took place in Canada.
There should be little doubt that copyright subsists in the original Musical. It is a mixture of dramatic work, literary, and musical work under the Copyright Act.[3] Given the scripts and the taping, there are plenty of fixations surrounding the Musical.[4] It was very much an original work in which the composers and the lyricists exercised their musical and literary skills and judgment as SCC required.[5] Premiering in 2009, it is well within the copyright term of 70 years.[6]
However, is there a copyright in translation created by the fans? Or is it a copyright infringement? Before we dive in, it is helpful to acknowledge the many elements in the fan-created videos: 1) the literary element – the translation of the lyrics, 2) the audio element – the fan singing the Chinese version, 3) the visual element – the original video recording of the Musical.
With regards to the literary element, Copyright Act s 3(1)(a) provided that copyright owners had the right to produce any translation.[7] This seems to suggest that the fans had infringed on the copyright with the literary element. But on the other hand, was that fan-created Chinese version a “translation” within the definition of the Copyright Act or is it an original work in itself? For example, one of the songs was originally titled “Penser l’impossible (Thinking the impossible),” the fan’s version was titled “鼎新革故 (Reform and innovate).” “Thinking the impossible” is rather different from “reforming and innovating.” However, both phrases conveyed Mozart’s father’s sentiments of feeling limited by his patron prince and wanting to think and do things differently. The fan versions consistently convey the same underlying meanings as the original lyrics while displaying distinct surface differences. They could arguably be considered separate songs even when viewed side by side. Some might argue that since fan versions maintain the same general meaning as the original lyrics, they cannot be considered original works. However, this holds true for many songs in various genres, which often explore common themes like love, heartbreak, and self-discovery. These themes can be thought of as akin to “genres” in themselves. Expression of ideas attracts copyright protection, not ideas themselves.[8] Furthermore, it is an incredible feat to rhyme Chinese with French or make Chinese sounds like French. While these efforts aim to make the Chinese version resemble the original more closely, they also entail significant talent and labour. Penalizing the creators of the Chinese fan version for this additional work seems unjust when it elevates the Chinese version to a new level of creativity and awesomeness. Given how much skills and judgment were exercised, the Chinese version would very likely meet the originality test[9]. If copyright law is about balancing the public interest in the encouragement and dissemination of works of the arts and obtaining a just reward for the creator per Théberge, I think the literary element to the fan versions should be granted their own original copyright, as that would encourage more works of arts and these fan versions also help disseminate the original Musical.
Now, it is highly likely that the final product constitutes copyright infringement as the audio element used the original music and the visual element was the original video. Nevertheless, do the fan-created Chinese versions fall under fair dealing? It could fall under research, private study, and education. These Chinese versions provided different perspectives and helped me understand the original French songs better. Are they fair under CCH? I’m inclined to say so. The purpose was creative and celebratory; the creators received only “likes” and zero financial gains (the site has no ads). Regarding the character of the dealing, the videos were uploaded onto the site for streaming, and viewers could not download the tracks, which points towards being fair as well. In terms of the amount, the creators used the entire song because that is required to meet the purpose. There are no alternatives to the dealing, and the work would benefit from further public dissemination – it could be more popular. The effect of the dealing is predominantly positive. The Chinese versions help make the popular musical even more popular and accessible to non-French speaking Chinese people, which would likely boost ticket sales if they tour again in China.
Additionally, there might be an issue with moral rights – the original authors have the right to the integrity of the work per s 14.1(1)[10]. These fan-created Chinese versions, at the very least, modified their work, and the original authors might not like that for all sorts of reasons. But should injunctions be granted, it would be a loss to all the viewers who “liked” the videos. Also, with the advent of AI, things might get even more complicated. What if, instead of singing the Chinese versions themselves, the fans used AI celebrity voice generators to make it sound like the original cast was singing the Chinese versions? That seems to be another major moral rights issue. In a recent US case on AI, a federal court judge dismissed visual artists’ copyright infringement claims against Stability AI for using their images to train the AI.[11] But how much of that would be applicable to such AI voice generator? A key difference would be that whereas Stability AI used a huge set of images to train their AI, such a voice generator specifically uses the voice of an individual. Moreover, would this make the work more original or less? Theoretically, the more it sounds like the original cast, the less original it gets. However, the fans singing the songs themselves would likely be far less effortful than inputting relevant audio into a given AI generator and then tuning the AI voice. It echoes my earlier point – it feels wrong to penalize creators for more effortful work.
[1] https://www.youtube.com/watch?v=OfdnnheqQcw&t=3324s
[2] https://www.bilibili.com/video/BV1Dp4y1g74M/?spm_id_from=333.788&vd_source=5b277db980dc5fb3176801188da88c31
[3] R.S.C. 1985, c. C-42, ss. 2 “literary work”, “dramatic work”, “musical work”. [Copyright Act]
[4] Canadian Admiral Corporation Ltd. v. Rediffusion Inc., 1954 CanLII 712 (CA EXC), [1954] Ex CR 382.
[5] CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339. [CCH]
[6] Copyright Act, supra note 3, s 11.1.
[7] Ibid, s. 3(1)(a).
[8] Kenrick v Lawrence (1890) L.R. 25, Q.B.D. 99.
[9] CCH, supra note 5
[10] Copyright Act, supra note 3
[11] Andersen v. Stability AI Ltd., 23-cv-00201-WHO (N.D. Cal. Oct. 30, 2023)
Communications Law