In a ruling dated December 5, 2023, the Supreme Court made a landmark decision regarding producer rights under Section 20 of the Copyright Act. CMS Kluge, represented by Attorney Steffen Asmundsson and Attorney Morten Smedal Nadheim, assisted IFPI Norway and FONO, two industry associations for record companies acting as interveners during the appeal proceedings in the Supreme Court. The record company and industry associations were fully supported in the judgment.
The Court concluded that a musician who recorded self-composed single tracks using his own equipment did not possess producer rights to his recordings. Instead, all producer rights belonged to the record company that had initiated, facilitated, and funded the record release. The musician's contribution was primarily of a creative nature, and he had already received compensation for his rights under Sections 3 and 16 of the Copyright Act. The audio recordings were made as an integral part of his role as composer and artist and were a subsidiary consequence of this artistic work.
In the previous judgment from the Court of Appeal, the musician was granted producer rights to his own recordings as well as co-ownership of the producer rights to the master tape. The basis for this was that the musician himself made the recordings using his own equipment. The Supreme Court set aside this decision and clarified that the 'producer of audio recordings' under Section 20 is the one who oversees, in the sense of initiating, facilitating, and bearing the costs of producing the recordings. Someone who merely records or produces physical copies does not hold producer rights.
The judgment signifies an important clarification of who holds producer rights to single tracks in a release involving multiple contributors, especially where the various contributions are recorded separately and transferred for mixing and finalization as a master tape for release. Consequently, the producer rights for both individual single tracks and the final master tape will in most cases lie entirely with the record companies when they take the initiative and bear the financial risk of the release. Contributors may have their expenses covered and receive standard fees for their work making the recordings, but they will not obtain producer rights under the Copyright Act.
