Figure Skaters’ Use of Copyrighted Music

As a life-long figure skater, I wanted to explore some application of IP law to the skating world for my final project and decided to focus on the copyright implications of skaters’ music selections. The music a skater chooses to skate to forms an integral part of their performance, with presentation being a major component of a skater’s score, and largely dependent on musical interpretation, timing, and “demonstration of engagement, commitment and involvement based on an understanding of the music and composition.”[1] Starting in the 2014-2015 season, singles and pairs skaters were allowed to use music with lyrics for the first time, opening up the options for many skaters to a wider variety of musical works by bigger artists with strong legal teams behind them who are motivated to protect their copyrighted works. Playing a piece of music while figure skaters perform in a show or compete at a competition constitutes a public performance of that work, which is a sole right of the copyright holder. In Canada, eight categories of use can constitute fair dealing: research, private study, education, parody, satire, criticism, review, and news reporting.[2] As this is an exhaustive list, sports performance cannot be considered a fair dealing exception to copyright infringement.

 

So, how is it that skaters are able to skate to copyrighted works? In a word, licensing.

All Skate Canada-affiliated clubs are required to pay registration fees to Skate Canada. A portion of that fee is remitted to “Entandem”, a joint venture between Re:Sound and SOCAN, to allow clubs to play copyrighted music during regular practice sessions.[3] Additionally, clubs are required to remit fees directly to Entandem for additional events such as ice shows or competitions.[4] The process gets a little bit more complicated when shows and competitions are broadcast on a larger stage.

Where broadcasting is involved, different types of licenses may also be required. Broadcasters pay blanket fees to performance rights organizations (such as SOCAN), and these organizations collect and distribute royalties to the artists who register with them.[5] There are often certain requirements for tracking and reporting which musical works have been used by the licensee to allow for appropriate distribution of royalties.[6] Sometimes, broadcasters must obtain synchronization rights, which allow for the musical works to be reproduced in conjunction with visuals and are typically secured from the artist and the record company.[7] Events such as the Olympics, however, are considered “live events”, so no synchronization license is required, and artists are paid via the blanket licenses.[8]

The Olympics has issued a fairly comprehensive guide for athletes on how to ensure the music they use complies with all applicable copyright laws.[9]  These include that the athlete must obtain the recording of their music from lawful and reliable sources, that they must provide details of the music they are using to the competition organizer and broadcasters (to allow for appropriate distribution of royalties by performance rights organizations), and that they must clear any adaptations of the music with the rights-holder of the music (more on this to follow).

 

Now, in practice, have artists ever claimed copyright infringement because of skaters using their musical works?

In 2022, following their silver medal win in the figure skating team event at the Olympics, and just before they were scheduled to compete in their individual event (where they would place 6^th), American pairs skaters Alexa Knierim and Branden Frazier were confronted with a lawsuit over their use of the musical duo Heavy Young Heathen’s version of “House of the Rising Sun” in their short program.[10] The duo claimed that they were not approached by Knierim, Frazier, US Figure Skating, or broadcast networks, and that “[t]hese violations 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.” The suit was eventually settled.[11] This response stands in stark contrast to Elton John’s response to Nathan Chen using his song to bring home the gold, tweeting, “Congratulations @nathanwchen for winning Gold skating to Rocket Man in the free skate finals in Beijing 🥇.”[12] I believe that situations like these show that sometimes just because you can assert a copyright infringement claim, it doesn’t necessarily mean that you should, and this might be something to consider when advising clients. While artists’ rights are undoubtedly important and deserving of respect, artists should be mindful of the business impacts of the ways they venture to protect those rights. Here, I think that the timing of the lawsuit reflected poorly on the band given its potential to affect the mentality of the athletes (from the band’s home country, no less) just before one of the biggest performances of their lives.

 

Even if a proper license is obtained, another way that artists can prevent skaters from using their musical works is through the assertion of moral rights. This makes it important for high-level skaters to consult with rightsholders prior to altering their musical works. Skaters are limited to a set program length and generally must fall within ±10s of that length. Further, they will often choose some kind of medley or composition of different pieces of music to add some variety to their program or to tell a story in a short period of time. Thus, editing of tracks is commonplace. This can pose problems for skaters as ss 14.1 and 17.1 of the Copyright Act give the author of a musical work and the maker of a sound recording, respectively, the right to the integrity of the work/performance.[13] Edits to a musical piece that are poorly made, or not in keeping with an artist’s vision for their works may thus constitute infringements of the artist’s moral rights.

In 2018, Canadian figure skater Kevin Reynolds shared in a since-deleted Instagram post that he was forced to abandon his free program using Joe Hisaishi’s music from Ni no Kuni due to some kind of dispute with a copyright holder. Although no further information was given, there was speculation in the skating world that this may be due to the famous Studio Ghibli composer’s protectiveness over the integrity of his works.[14] Yuzuru Hanyu reportedly had to go to great lengths to seek special permission from Hisaishi to allow him to combine two of his compositions for his World-Championship-winning free program in the 2016-2017 season.[15] Wiseau Studio, LLC et al. v. Harper et al. set out that “Moral rights involve a consideration of both the subjective views of the plaintiff and objective evidence. Moral rights are not, and cannot be, determined solely on the feelings or opinions of the creator of a work.”[16] Therefore, if a moral rights action were brought against a skater who was licensed to use a work, there must be some objective assessment that the changes to the work would be prejudicial to the artist claiming the moral right infringement. That being said, skaters wanting to steer clear of any potential litigation should be mindful of how they are editing musical works and should recognize that it may be prudent to seek the approval of the original artist before making significant changes.

 

While these kinds of cases may be rare, they could have serious ramifications for skaters potentially having to re-choreograph in the middle of competition season as their music selections are so integral to their performance. The way that musical artists enforce their copyright interests against figure skaters and those who broadcast the sport has the potential to greatly change the way that figure skaters can continue evolving the sport and pushing creative boundaries.[17] Perhaps another fair dealing category should be considered to allow the creativity of skaters (and other those involved in other artistic sports) to flourish without fear of potentially prohibitive licensing regimes.

 

 

[1] ISU Communication 2558 <https://www.isu.org/figure-skating/rules/fsk-communications/31153-isu-communication-2558/file>

[2] Copyright Act, RSC 1985, c C-42, ss 29, 29.1, 29.2.

[3] “Reminder: Club and Skating School Music Use (Entandem)” (last visited 26 April 2024), online: Skate Canada <https://noticeboard.skatecanada.ca/2022/01/21/reminder-club-and-skating-school-music-use-entandem/>.

[4] Ibid.

[5] “How Do Musical Artists Get Paid When Skaters Use Their Songs at the Olympics?” (29 Mar 2018), online: IPWatchdog <https://ipwatchdog.com/2018/03/29/musical-artists-get-paid-when-skaters-use-their-songs-olympics/id=95117/>.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] “Music in Sport” (last visited 26 April 2024), online: Olympics <https://olympics.com/athlete365/games-time/music-in-sport/>; “Music in Sport – Guidance for Athletes” (2021), online (pdf): Olympics <https://olympics.com/athlete365/app/uploads/2021/04/MIS-Educational-Material-Final-Version-2021.pdf>.

[10] Blake Brittain, “Musical duo Heavy Young Heathens sues figure skaters, NBC over Olympic song use”, Reuters (17 February 2022), online: <https://www.reuters.com/legal/transactional/musical-duo-heavy-young-heathens-sues-figure-skaters-nbc-over-olympic-song-use-2022-02-17/>

[11] Blake Brittain, “Olympic skaters and NBC settle with musicians over song use”, Reuters (22 July 2022), online: <https://www.reuters.com/legal/litigation/olympic-skaters-nbc-settle-with-musicians-over-song-use-2022-07-22/

[12] Elton John, (10 February 2022), online: Twitter <https://twitter.com/eltonofficial/status/1491766323575201792>

[13] Copyright Act, supra note 2, ss 14.1, 17.1.

[14] “Kevin Reynolds’ music copyright problem (is there a precedent for this?)” (last visited 26 April 2024), online: Figure Skating Universe <https://www.fsuniverse.net/forum/threads/kevin-reynolds-music-copyright-problem-is-there-a-precedent-for-this.104648/>

[15] “The world of “figure skating music” spun by sound designer Keiichi Yano (Part 1)” (4 July 2017), online: Victory Sports News <https://victorysportsnews.com/articles/4441/original> (translated from Japanese).

[16] Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504 (CanLII) at para 203.

[17] See Vanessa E Richmond, “Skating On Thin Ice: The Intellectual Property Ramifications of a Figure Skater’s Public Performance” (2016) 20:2 Marquette Intellectual Property L Rev 299. Available at: <http://scholarship.law.marquette.edu/iplr/vol20/iss2/3>.