In what lawyers are calling an unusual case, a Montreal hip-hop recording artist has successfully sued in small claims court in Québec over a takedown notice from three record labels.
In Whyte Potter-Mäl c. Topdawg Entertainment Inc.
, Montreal musician Jonathan Emile, as he is known, sought damages of $15,000 from the record labels after one of his songs was taken down from YouTube and SoundCloud for two months after the defendants had issued a takedown notice due to alleged copyright infringement.
The defendants — record labels Topdawg Entertainment Inc., Interscope Records and Universal Music Group — did not defend, and the Court of Québec’s small claims division ordered $5,000 in “moral and material damages” (damage to reputation, loss of income) payable to Jonathan Emile.
Noel Courage, a partner at Bereskin & Parr LLP who specializes in intellectual property, suggests the case is unusual. “I’ve … never noticed a case where someone sued over a takedown notice,” he told Legal Feeds.
“There are examples of people striking back against record companies,” he says, such as last year’s case in which Pennsylvania mother Stephanie Lenz won a case against Universal Music, which had sent a takedown notice to YouTube after Lenz posted a video of her toddler son dancing to a song by Prince. But he said he had never heard of an artist getting a takedown notice and suing.
“The Court seemed to say that the takedown affected the moral rights of the musician’s work or performance,” he adds. “Moral rights are the musician’s rights to the integrity of a work. These rights can be infringed if the work is modified without consent, and prejudices the musician’s reputation or honour. This is the first I have heard of the use of moral rights in response to a web music takedown.”
Erin E. Best, an associate and trademark agent at Stewart McKelvey in St. John’s, concurs. “I fail to see how this is properly framed as an infringement of the songwriter’s moral rights,” she told Legal Feeds by email. “Generally, moral rights come into play when a work is altered or used in a way that offends the morals of the creator. In this case the song in its entirety was taken down from the site . . . Perhaps the defendants’ allegations of infringement, if untrue, harmed the plaintiff’s reputation, but that is not an infringement of the plaintiff’s moral rights. Maybe a defamation action could be considered in those circumstances.”
Best, too, says she has never seen a case like this. “I have had cases where I reported an alleged [copyright] infringement to a social media site and successfully requested that the infringing work be removed. I have also had cases where I contested an alleged infringement and successfully had the work reinstated on the site. I have never seen a case like this one where the alleged infringer successfully sued the party who reported the infringement.”
She believes the defendants may appeal the decision “because the Judge seems to think that the defendants took down the song themselves” from YouTube and SoundCloud. If the defendants merely reported the alleged infringement to the site and the site took the song down, “then the plaintiff’s claim would be against the site, not the defendants. Such a claim against the site is unlikely to succeed if the plaintiff agreed not to sue, or to adhere to the site’s policies when he accepted the terms and conditions associated with the use of the site.”
The decision does not set “a strong precedent, because it’s a low level of court,” says Courage. However, “it may give companies pause before giving takedown notices.”