“These violations cause great harm to the value of their command for such a well known piece of their recording catalog, and insults the integrity of their professional reputation.”
— Heavy Young Heathens lawsuit
“We have no information, just because we were trying to stay focused on our competition.”
— Brandon Frazier, figure skater
The modern digital landscape has certainly changed the world for musicians, athletes and television networks. And the intersection of those worlds has produced a legal clash arising from the 2022 Winter Olympics.
In the past, the music world was, frankly, simpler. Performers earned pay from the recording, record sales and live performance dates related to the music they sold. Every album or single that walked out of a record store earned them money. Every ticket sold for a live performance was cash in their pocket. Songwriters and lyricists earned residual rights when their songs were played live or on the radio. Television provided a new medium when it came along, but no real, substantial change in the nature of the marketplace.
But the internet, and then streaming music services, added substantial new wrinkles. Suddenly, there were ways for people to share music that they had not purchased. There were new platforms, like YouTube, where people who do not own the rights to music can upload it, and there were new ways to share music on phones and via apps. It became more complicated to track and control those music rights.
Over the past several years, musicians, music companies and music groups have fought back against those encroachments — shutting down file sharing services, solidifying rights tracking over apps, and tagging music with digital rights signatures that help stop pirating.
Those streaming services and expansions to the entertainment world haven’t exactly helped NBC when it comes to its multi-billion dollar purchase of Olympic broadcasting rights either. On the positive side, I was able to watch every second of Norwegian curling live via the Peacock app — with or without commentary. But on the negative side, competition from a thousand other networks, apps, cable channels and streaming services meant that Olympic television ratings cratered this year.
So, it could not have pleased NBC at all to find that they were unwittingly on the wrong end a copyright infringement claim that arose from music played not by them, but by members of the U.S. Olympic figure staking team during the team event short program in Beijing. The skaters in question, Alexa Knierim and Brandon Frazier, performed their routine to the 2016 Heavy Young Heathens cover of the traditional folk song “House of the Rising Sun” that originally appeared in the trailer for the remake of the film “The Magnificent Seven.”
The lawsuit was filed shortly after the televised performance, and while the Olympics were still underway in China. The performance had already helped the U.S. Olympic team take the silver medal (a recognition that might yet be elevated to gold, given the ongoing investigation into Russian skater Kamila Valieva’s positive drug test). The skaters told reporters that they were aware of the suit, but that Team USA officials were handling it and they had no comment. NBC, likely unaware of the licensing issues surrounding the music they were broadcasting as part of their coverage, followed the advice of their lawyers and pulled all clips of the performance from their online archives.
This is a lawsuit that is highly likely to be resolved by the parties with a negotiated payment for the rights to the music (plus some limited damages and legal fees) and a promise not to infringe on the group’s music again. But the episode serves as a reminder of just how easy it has become to infringe on copyright when recordings of music, television shows, movies and other media are so readily available online and so easy to use, edit and redistribute.
There is, of course, a Fair Use doctrine in the United States, but that complex analysis is not swayed by whether the use profits the rights violator or not. There is an exception for educational use, but few copyright violators are making educational use of the protected material.
Olympic gymnasts in 2024 in Paris will likely be more careful about licensing their music, and NBC will certainly tread lightly when it comes to ensuring that rights have been secured before broadcasting the music attached to floor routines. But this incident serves as a reminder to everyone that the recording artists, record companies and songwriters are watching for violations and willing to take legal action to protect their rights.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.