Synchronizing Copyright and Technology: A New Paradigm for Sync Rights

Missouri Law Review Missouri Law Review

Volume 87 Issue 1 Article 6

Winter 2022

Synchronizing Copyright and Technology: A New Paradigm for Synchronizing Copyright and Technology: A New Paradigm for

Sync Rights Sync Rights

Michael P. Goodyear

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Synchronizing Copyright and Technology:

A New Paradigm for Sync Rights

Michael P. Goodyear

ABSTRACT

Embedded in a copyright owner’s musical work or sound

recording is the synchronization, or sync right, the exclusive right to

use music in sync, or in timed-relation, with audiovisual works.

Considerations about sync rights, one of the least discussed aspects of

music copyright, have come to the fore as the world has increasingly

moved from the real world to the virtual. The COVID-19 pandemic

has spurred thousands of activities and events to go online. With many

of these involving music, the shift to the virtual world has raised new

questions about the extent of sync rights.

Traditionally, sync rights were meant to require licenses for the

use of music in timed-relation to a film or television show. Charting

the historical trajectory of judge-made sync rights law, this Article

finds that courts have largely continued to confine sync rights to

movies, TV shows, and closely related media. At the edges, however,

courts have started to disagree and many newer forms of audiovisual

work media – such as streaming – have been unexamined, leaving

creators without proper guidance. To help draw some clarity, this

Article hopes to offer the first comprehensive overview of sync right

case law in decades. Drawing from these findings, this Article then

proposes utilizing a two-part test drawn from case law – (1) a

reproduction in an audiovisual work (2) with music played in timed-

relation – to limit the boundaries of sync rights and better achieve

balance between rightsholders’ rights and public access to works. In

particular, the timed-relation prong of this test has been largely

ignored, but revitalizing this intent-driven element could provide more

J.D., University of Michigan Law School (2020); A.B., University of Chicago (2016).

I would like to thank Todd Larson for his invaluable suggestions and insights into

music copyright. I would also like to thank Michael Modak-Truran for always

engaging in discussion on the topic of this piece and my other scholarship. Finally, I

thank the editors of the Missouri Law Review for their helpful comments and

suggestions throughout the editing process.

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96 MISSOURI LAW REVIEW [Vol. 87

useful and clearer analysis of sync rights and novel media in the

future.

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2022] A NEW PARADIGM FOR SYNC RIGHTS 97

TABLE OF CONTENTS

ABSTRACT… ............................................................................................. 95

TABLE OF CONTENTS ................................................................................. 97

I. INTRODUCTION....................................................................................... 98

II. THE PURPOSE OF COPYRIGHT .............................................................. 102

III. ADAPTABILITY OF COPYRIGHT LAW TO TECHNOLOGY ....................... 103

IV. MUSIC COPYRIGHT AND SYNC RIGHTS ............................................... 109

A. Musical Works and Sound Recordings .......................................... 109

B. The Synchronization Right ............................................................ 113

V. SYNC RIGHTS IN THE COURTS ............................................................. 117

A. Film, Television, and Commercials ............................................... 118

B. Video Games ................................................................................ 120

C. Karaoke ....................................................................................... 121

VI. COMPLICATIONS WITH NEW CONTENT INNOVATIONS ......................... 123

VII. RE-CRAFTING A MODERN SYNC RIGHT TEST .................................... 130

VIII. CONCLUSION .................................................................................. 136

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I. INTRODUCTION

The novel coronavirus disease 2019 (“COVID-19”) pandemic forced

the world to go virtual.

As offices laid empty and entertainment venues

remained shuttered,

society had to find remote ways to work, play, and

live. COVID-19 forced artists and audiences to adapt, with concerts,

plays, and other forms of entertainment going virtual,

leading to a surge

in streaming.

With the vast majority of live events on pause due to the

pandemic, streams on social media and video platforms such as Instagram,

YouTube, and Twitch have become vital for connecting musical artists to

their fans,

fitness enthusiasts to their instructors,

and trivia fanatics to

their pub trivia.

In just the first two months of the COVID-19 quarantine

in the United States, the streaming content sector grew by forty-five

percent.

By January 2021, 645 billion hours were watched per month on

Twitch, the largest streaming platform.

At the core of these streaming

industries is music.

See John Seabrook, Has the Pandemic Transformed the Office Forever, NEW

YORKER (Jan. 25, 2021), https://www.newyorker.com/magazine/2021/02/01/has-the-

pandemic-transformed-the-office-forever [https://perma.cc/93T6-AHWQ].

Id.; Laura Cooper, Live Music Is Back, but New York City Is Barely Rocking,

WALL ST. J., https://www.wsj.com/articles/live-music-is-back-but-new-york-city-is-

barely-rocking-11618246496 [https://perma.cc/P8AV-Y5MK] (last updated Apr. 12,

2021, 4:28 PM).

Alan Brandit & Jameson Tibbs, Music Licensing in the Video Streaming Era,

FAY SHARPE, https://faysharpe.com/music-licensing-in-the-video-streaming-era

[https://perma.cc/PKL5-4XMF] (last visited May 11, 2021).

Live Streaming Your Show: A 3 Step Copyright Guide, BARBERSHOP

HARMONY SOC’Y (May 19, 2020), https://www.barbershop.org/live-streaming-your-

show-a-guided-copyright-checklist [https://perma.cc/XZ94-HS86].

Gwendolyn Seale, Legal Issues in a Livestreaming World, LAW.COM (Jan. 8,

2021, 10:01 AM), https://www.law.com/2021/01/08/legal-issues-in-a-livestreaming-

world [https://perma.cc/PA2G-LFAR].

Christina Criddle, Coronavirus Creates Boom in Digital Fitness, BBC (Dec.

16, 2020), https://www.bbc.com/news/technology-55318822

[https://perma.cc/U22Y-X3UV].

Steven Melendez, From Bar Trivia to Fantasy Role Playing, Zoom Is the

World’s New Game Room, FAST CO. (Apr. 26, 2020),

https://www.fastcompany.com/90489339/from-bar-trivia-to-fantasy-role-playing-

zoom-is-the-worlds-new-game-room [https://perma.cc/KH7X-K4WC].

Seale, supra note 5.

Id.

See, e.g., Bijan Stephen, In Twitch’s Fight with the Music Industry, Streamers

Are Paying the Price, VERGE (Nov. 12, 2020, 3:50 PM),

https://www.theverge.com/2020/11/12/21562372/twitch-soundtrack-riaa-music-

youtube (noting that thousands of streamers use music).

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In the physical world, musicians, fitness instructors, and others

frequently had to contend with music copyright.

But with new forms of

media come new questions: “Can I perform a cover song on Instagram?”

“Can I upload a live broadcast of a radio show to YouTube?” “Can I record

my DJ set onto Twitch?” The combination of visual imagery with music

online raises an additional music copyright question: the synchronization

(“sync”) right.

Judges have interpreted the Copyright Act to give owners

of copyrights in musical works and sound recordings a sync right, an

additional sub-right deriving from the rightsholders’ exclusive

reproduction or derivative works right. This right gives copyright owners

the exclusive right to use music in timed-relation to, or in sync with,

audiovisual works.

The purpose of synchronization in media creation is to enhance an

audiovisual production by using underlying music to create a specific

effect or mood.

Synchronization can be a significant addition to a work,

adding a dynamic layer to an artist’s story.

Courts originally interpreted

sync rights to apply to movies, television shows, and commercials, which

specifically use certain songs at particular moments.

More recent

jurisprudence has not strayed far from these originally implicated media.

Yet more novel forms of media, such as on-demand or interactive

See, e.g., Joy Butler, Using Music In Your Work: Copyright Tips for

Companies, LAW360 (July 20, 2017, 11:39 AM), https://www.copyright.com/wp-

content/uploads/2017/07/Using-Music-In-Your-Work-Copyright-Tips-For-

Companies.pdf [https://perma.cc/H9PL-ULUH] (explaining how businesses can

obtain licenses to use music).

See, e.g., REGISTER OF COPYRIGHTS, COPYRIGHT AND THE MUSIC

MARKETPLACE 55–56 (Feb. 2015) (describing the sync right as deriving from either

the reproduction right, the derivative works right, or a combination thereof). The

reproduction right is the right “to reproduce the copyrighted work in copies or

phonorecords.” 17 U.S.C. § 106(1). The derivative works right is the right “to prepare

derivative works based upon the copyrighted work.” 17 U.S.C. § 106(2).

See Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 193 (D. Mass.

2009) (defining the sync right).

Theodore Z. Wyman, Enforceability of Synchronization Rights and Licenses

in Copyrighted Music, 84 A.L.R. FED. 2D 345, § 2 (2014) (“Creators of media such as

motion pictures, television programming, TV or radio advertisements, video games,

and karaoke tracks often seek to enhance their productions by synchronizing

underlying music with their audiovisual images for specific effect.”).

See Matt Block, When Should You Consider Sync, SONGTRUST,

https://blog.songtrust.com/when-should-you-consider-sync [https://perma.cc/RA9L-

LBC2] (last updated Apr. 9, 2020) (“[S]ync is an art form that can add a dynamic layer

to an artist’s story while also providing a significant revenue stream.”).

See ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62 n.4 (2d Cir.

1996) (abrogated on other grounds by Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010))

(“Most commonly, synch licenses are necessary when copyrighted music is included

in movies and commercials.”).

See infra notes 196–222 and accompanying text (describing the evolution of

sync right case law).

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streaming or recorded classes or concerts, also seem to implicate the sync

right as they qualify as audiovisual works.

As the only wholly

unregulated part of music copyright,

sync licenses – negotiated

permission to sync a copyrighted work without infringing it – can prove

an enormous burden to prospective creators and new types of media.

Yet despite the potential hurdles that sync licensing can create for

new technology and innovations, little attention has been paid to sync

rights by either courts or legal scholars. Fewer than two dozen cases have

addressed sync licenses with more than a fleeting mention.

Extant

See Calvin R. Nelson et al., Legal Implications of Syncing Copyright Music

with Other Content, LEXOLOGY (July 27, 2020),

https://www.lexology.com/library/detail.aspx?g=4ce6ee91-2404-455a-8f9e-

d4deecdae617 [https://perma.cc/2KMF-ENA2] (describing sync license issues for

streaming video games and fitness classes).

See infra notes 116–29, 154–66 and accompanying text (discussing the

licensing landscape for musical works and sound recordings, including the various

available compulsory licenses).

Joseph Storch, Stephanie Morrison & Jack Bernard, Synching Your Teeth

into Copyright Law: Legal and Practical Considerations for Public Performances of

Video and Photos Synchronized to Copyrighted Music, 15 NAT’L ASSOC. COLL. &

UNIV. ATT’YS 1, 9 (May 8, 2017) (noting that obtaining sync licenses can potentially

involve high costs and may require creators to change the songs they use if the price

is untenable); What Is a Synchronization License?, EASY SONG LICENSING,

https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-

synchronization-

license.aspx#:~:text=Challenges%20of%20obtaining%20synchronization%20license

s,and%20reject%20the%20license%20outright (last visited June 2, 2021) (“Note that

synchronization licensing can be challenging because, by law, synchronization rights

holders maintain total control of their works when it comes to video. This means they

can set any fee, take all the time they need, and reject the license outright.”).

See generally Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 194

(D. Mass. 2009); ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62–63 (2d

Cir. 1996) (abrogated on other grounds by Salinger v. Colting, 607 F.3d 68 (2d Cir.

2010)); Woods v. Bourne Co., 60 F.3d 978, 987 (2d Cir. 1995); Agee v. Paramount

Comm’ns, Inc., 59 F.3d 317, 322 (2d Cir. 1995); Buffalo Broad. Co. v. ASCAP, 744

F.2d 917, 920 (2d Cir. 1984); Downtown Music Publ’g LLC v. Peloton Interactive,

Inc., 436 F. Supp. 3d 754, 760 (S.D.N.Y. 2020); Beastie Boys v. Monster Energy Co.,

983 F. Supp. 2d 338, 347 (S.D.N.Y. 2013); Freeplay Music, Inc. v. Cox Radio, Inc.,

404 F. Supp. 2d 548, 552 (S.D.N.Y. 2005); Ohio Players, Inc. v. Polygram Records,

Inc., No. 99-civ-0033, 2000 WL 1616999 at *5 (S.D.N.Y. Oct. 27, 2000); Bourne Co.

v. Walt Disney Co., No. 91 Civ. 0344, 1992 WL 204343 at *4 (S.D.N.Y. Aug. 7,

1992); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 579 n.3 (6th Cir.

2007); Bridgeport Music, Inc. v. Still N The Water Publ’g, 327 F.3d 472, 481 n.8 (6th

Cir. 2003); House of Bryant Publ’ns, LLC v. A & E Television Networks, No. 3:09-

0502, 2009 WL 3673055 at *9 (M.D. Tenn. Oct. 30, 2009); Leadsinger, Inc. v. BMG

Music Publ’g, 512 F.3d 522, 527 (9th Cir. 2008); Maljack Prods., Inc. v. GoodTimes

Home Video Corp., 81 F.3d 881, 885 (9th Cir. 1996); Kihn v. Bill Graham Archives,

LLC, 445 F. Supp. 3d 234, 253 (N.D. Cal. 2020); EMI Ent. World, Inc. v. Priddis

Music, Inc., 505 F. Supp. 2d 1217. 1221 (D. Utah 2007).

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scholarship on sync rights is even more lacking, with the most detailed

discussions of sync rights coming from student notes. In 1986, Lewis

Rinaudo Cohen provided an overview of the sync right and offered a

reconsideration of it that would weaken music publishers’ claims to re-use

fees and purportedly create better balance between movie producers and

music copyright owners.

Most of the case law on sync rights occurred

after Cohen’s article was published, however, and it would be three

decades until an academic article directly focused on sync rights would be

published again.

More recently, Nicholas Thomas DeLisa argued in

favor of a compulsory license system for sync licenses and Hannah

Skopicki suggested requiring sync licenses for hologram performances.

More practice-focused articles provide analyses of the existing law,

but

do not suggest how courts should modernize their jurisprudence to address

substantial audiovisual innovations.

This Article hopes to achieve two goals that substantially build on the

limited pre-existing sync right scholarship. First, it offers a thorough

examination of all existing case law on sync rights, providing a much-

needed update to Cohen’s 1986 work. Second, it proposes revitalizing the

evaluation for sync right infringement by parsing a two-part test – the use

must (1) be a reproduction in an audiovisual work and (2) play the music

in timed-relation to moving images – from the case law and giving

requisite weight to the “timed-relation” prong, which has been almost

completely ignored by courts and commentators alike. This test serves the

purpose of copyright by balancing the interests of copyright owners with

public access to new creative works, much in the same vein as other

judicial and legislative adaptations to novel technological innovations.

In Part II, this Article lays out the purposes of copyright, which

provide the overarching guiding principles for copyright law. Part III then

discusses how courts and Congress have historically achieved this purpose

in the face of novel technologies, always keeping an eye towards a balance

between copyright owners’ rights and public access. After establishing

these background considerations, Part IV provides an overview of music

recording rights, and then addressing sync rights specifically. Part V then

analyzes existing sync rights case law to provide an authoritative overview

See Lewis Rinaudo Cohen, Note, The Synchronization Right: Business

Practices and Legal Realities, 7 CARDOZO L. REV. 787, 805–14 (1986).

Id.

Nicholas Thomas DeLisa, Note, You(Tube), Me, and Content ID: Paving the

Way for Compulsory Synchronization Licensing on User-Generated Content

Platforms, 81 BROOK. L. REV. 1275, 1301–12 (2016); Hannah Skopicki, Comment,

Pixelated Poltergeists: Synchronization Rights and the Audiovisual Nature of “Dead

Celebrity” Holograms, 70 AM. U. L. REV. F. 1, 22–29 (2020).

See, e.g., Storch, Morrison, & Bernard, supra note 20, at 1 (providing an

overview of when and how to obtain a sync license).

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of the state of the law. After explaining the status quo, Part VI addresses

the historical understanding of sync rights and how novel media forms

have presented new, unanswered complications about where sync rights

begin and end. Finally, Part VII offers a solution to this problem, drawing

inspiration from historical adaptations of copyright to new technologies

while advocating for the simple but effective solution of officially

establishing a two-part test for sync right infringement that has effectively

already been cited by courts, with a particular eye to the timed-relation

prong that has long been relegated to the shadows of infringement

analyses.

II. THE PURPOSE OF COPYRIGHT

From the start, copyright has had to balance public access to works

with protecting the rights of copyright owners.

The goal of copyright, as

articulated by the U.S. Constitution, is “[t]o promote the progress of

science and useful arts, by securing for limited times to authors and

inventors the exclusive right to their respective writings and

discoveries.”

By giving creators a package of exclusive rights, “they are

given an incentive to create.”

This incentive leads to a proliferation of

creative content, which ultimately, according to this theory, will enrich

public welfare in the United States by achieving progress in the sciences

and arts.

While these incentives are an important part of copyright law, the

overarching purpose of copyright is to promote the spread of knowledge

and technology.

Renowned authority on copyright law Melville Nimmer

concluded that the “primary purpose of copyright [i]s not to reward the

author” but promote creation.

The Supreme Court has similarly

Skopicki, supra note 24, at 10.

U.S. CONST. art. I, § 8, cl. 8.

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 477 (1984)

(Blackmun, J., dissenting).

JULIE COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 7–8

(4th ed. 2015). This rationale stretches back to at least the Statute of Anne, an early

British copyright law in the eighteen century from which modern U.S. copyright law

descends. Id. at 24–25; Shyamkrishna Balganesh, The Uneasy Case Against

See Malla Pollock, What Is Congress Supposed to Promote?: Defining

“Progress” in Article I, Section 8, Clause 8 of the United States Constitution, or

Introducing the Progress Clause, 80 NEB. L. REV. 754, 809 (2001) (concluding from

a linguistics study that the term “progress,” as used in the Intellectual Property Clause

of the Constitution, refers to disseminating knowledge and technology); see also

Stewart v. Abend, 495 U.S. 207, 228 (1990) (recognizing that “dissemination of

creative works is a goal of the Copyright Act”).

1 MELLVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §

1.03[A] (2021).

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concluded that promoting access is the ultimate goal of copyright.

If the

purpose of copyright is to encourage learning

and progress,

a policy

emphasis on public access is a logical conclusion.

Thus, access to newly generated knowledge and expression is just as

important as protecting the incentivizing rights of copyright owners. As

articulated by a group of law professors in the Copyright Principles

Project, “[a] well-functioning copyright law carefully balances the

interests of the public and of copyright owners.”

Courts and Congress

have strived to strike a balance between the two interconnected but often

competing interests of protection and access.

Particularly with new

technological advancements, it is important to periodically reevaluate

extant copyright law to determine if this balance is met.

III. ADAPTABILITY OF COPYRIGHT LAW TO TECHNOLOGY

change. This adaptation is exemplified by how Congress gave more types

of works copyright protection over time.

The original Copyright Act of

1790 only protected maps, charts, and books.

But over the course of the

nineteenth century, prints (1802),

music (1831),

dramatic compositions

(1856),

photographs (1865),

and works of art, including paintings,

drawings, statues, and models (1870) were included within the ambit of

While the inclusion of photographs showed how copyright

could be expanded to include novel types of works, this trend accelerated

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)

(“[P]rivate motivation must ultimately serve the cause of promoting broad public

availability of literature, music, and the other arts.”); see also Abend, 495 U.S. at 228

(“[D]issemination of creative works is a goal of the Copyright Act.”).

COHEN ET AL., supra note 2929, at 24–25. The Statute of Anne explicitly stated

this. Id.

U.S. CONST. art. I, § 8, cl. 8.

Pamela Samuelson et al., The Copyright Principles Project: Directions for

Reform, 25 BERKELEY TECH. L.J. 1175, 1181 (2010).

See, e.g., infra Part III.

See generally Pamela Samuelson, Evolving Conceptions of Copyright Subject

Matter, 78 PITT. L. REV. 17, 21–27 (2016) (discussing the historical evolution of

(tracing the expansion of copyrighted subject matter in the United States during the

nineteenth century).

Act of Apr. 29, 1802, ch. 36, 2 Stat. 171.

Act of Aug. 18, 1856, ch. 169, 11 Stat. 138.

Act of Mar. 3, 1865, ch. 126, 13 Stat. 540.

Act of July 8, 1870, ch. 230, § 86, 16 Stat. 212.

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in the twentieth century to include new technological creations.

Motion

pictures received independent copyright protection in 1912.

In 1972, the

Sound Recordings Act granted federal copyright protection to sound

recordings.

The Copyright Act was amended in 1980 to protect

computer programs.

Finally, in 1990, copyright was extended to

architectural works.

But while the ambit of copyright has continued to grow, so have

modifications to the rights of copyright holders in response to

technological development.

Significant adaptations to copyright took

place in response to the advent of the player piano, television program

retransmission, photocopying, home video recording equipment, and a

myriad of Internet innovations such as Google Books.

For all of them,

the goal was striking a balance between copyright holders’ exclusive rights

and public access.

One of the earliest twentieth century modifications to exclusive rights

in the Copyright Act in response to technology was the mechanical

license.

In 1900, Edwin S. Votey received a patent for the player piano,

or pianola.

The player piano was a self-playing piano which contained

a pneumatic mechanism which “read” programmed music recorded on

perforated paper.

Votey later gave his patent rights to the Aeolian

Company, of which he was a director.

The player piano enjoyed

considerable popularity, selling over 200,000 units per year.

But this

new form of musical performance threatened the rights of musical work

See., e.g., Act of Aug. 24, 1912, ch. 356, 37 Stat. 488.

Id. They previously were only copyrightable by depositing a series of still

photographs. See Edison v. Lubin, 122 F. 240, 240–43 (3d Cir. 1903) (holding that a

series of 4,500 pictures was copyrightable as a “photograph”).

Sound Recording Act of 1971, Pub. L. No. 92-140, 85 Stat. 391. Sound

recordings made prior to 1972, however, were still only protected by state law, where

applicable, until the Music Modernization Act added federal protection for pre-1972

sound recordings in 2018. Orrin G. Hatch-Bob Goodlatte Music Modernization Act,

Pub. L. No. 115-264, 132 Stat. 3676 (2018).

Act of Dec. 12, 1980, Pub. L. No. 96-517, § 117, 94 Stat. 3015, 3028.

Architectural Works Copyright Protection Act, Pub. L. No. 101-650, §§ 701–

704, 104 Sat. 5089, 5133 (1990).

See infra notes 54–94 and accompanying text.

Lydia Pallas Loren, The Dual Narratives in the Landscape of Music

U.S. Patent No. 650,285 (filed Jan. 25, 1897) (issued May 22, 1900).

Player Piano History & Development, PLAYER PIANO PAGE,

http://www.pianola.com/pphist.htm [https://perma.cc/DQX2-7JFN] (last revised Jan.

25, 2006).

Loren, supra note 52, at 546.

Id.

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To play a song, the player piano required a roll of

paper that had been perforated in line with the music – effectively a code

for the piano player to follow.

Aeolian produced millions of these rolls

to feed the popularity of the player piano.

Yet these rolls were quite

distinct from the sheet music that came before, whose reproduction was

undoubtedly the exclusive prerogative of the copyright owner.

In 1908, the U.S. Supreme Court had to decide whether these rolls

infringed upon the rights of the owners of copyrights in musical works.

In White-Smith Music Publishing Co. v. Apollo Co., the Court held that the

rolls were not copies of the musical works, and therefore there was no

infringement.

This ruling could have seriously harmed composers, and

the Supreme Court acknowledged that this ruling effectively allowed free-

riding by the player piano companies.

In response, Congress included a

provision in the 1909 Copyright Act that granted the copyright owner of a

musical work the right to control mechanical reproductions of that work,

subject to a compulsory mechanical license.

This preserved the revenue

stream of composers and, for the first time in the history of U.S. copyright

law, subjected a copyright owner to a compulsory license.

The purpose

of this mechanical license, now codified in Section 115 of the Copyright

Act, was to readjust the balance in music copyright law after White-Smith

Id.

History of the Pianola – Music Roll Manufacture, PIANOLA INST.,

http://www.pianola.org/history/history_rolls.cfm [https://perma.cc/L4RL-2RGX]

(last visited May 21, 2021).

Id. (“It was an accepted maxim amongst Aeolian Company staff that its profits

came from the sale of instruments, and that rolls were manufactured as a means to that

end.”); Loren, supra note 52, at 546 (“[O]ver five million rolls [were] sold each

year.”).

Loren, supra note 52, at 546.

White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 9 (1908).

Id. at 18.

Id. (“It may be true that the use of these perforated [player piano] rolls, in the

absence of statutory protection, enables the manufacturers thereof to enjoy the use of

musical compositions for which they pay no value.”).

Act of Mar. 4, 1909, ch. 320, § 1(e), 35 Stat. 1075 (“That whenever the owner

of a musical copyright has used or permitted or knowingly acquiesced in the use of

the copyrighted work upon the parts of instruments serving to reproduce mechanically

the musical work, any other person may make similar use of the copyrighted work

upon the payment to the copyright proprietor of a royalty of two cents on each such

part manufactured, to be paid by the manufacturer thereof.”).

Loren, supra note 52, at 547 (“[F]or the first time in the history of U.S.

compulsory license.”); Howard B. Abrams, Copyright’s First Compulsory License, 26

SANTA CLARA HIGH TECH L.J. 215, 219–21 (2010) (discussing the background and

establishment of the Section 115 mechanical license).

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was decided and protect both copyright owners and access to creative

works.

Congress stepped in again when technological advances allowed the

retransmission of television signals.

In two cases in 1968 and 1974, the

Supreme Court held that amplification of an existing broadcast by

retransmission through cable did not constitute a public performance.

the latter decision, the Supreme Court noted, like it had in White-Smith,

that the Copyright Act was outdated and had not kept pace with new

technologies, such as cable television (“CATV”).

Congress took note

and again overhauled the Copyright Act in 1976. One of Congress’ main

reasons for this substantial change was to overturn these decisions and

reestablish a balance that protected copyright owners’ rights.

The result

was a similar compromise to that of 1909.

Congress redefined a public

performance of an audiovisual work as “show[ing] its images in any

sequence or to make sounds accompanying it audible” and enacted the

Transmit Clause, which together made retransmissions performances

subject to copyright.

However, Congress also created a compulsory

licensing scheme for cable systems to retransmit broadcasts.

Again,

Congress had balanced the rights of the copyright holder and access to the

works.

But not all modifications to copyright law to accommodate

technological change relied on compulsory licenses.

In the case of

photocopying, fair use provided protection for users.

Hand copying of

Jane C. Ginsburg, Copyright and Control Over New Technologies of

Dissemination, 101 COLUM. L. REV. 1613, 1626–27 (2001); see also Abrams, supra

note 65, at 220 (explaining how a mechanical reproduction right without a compulsory

license would have created conditions for a potential monopoly).

Ginsburg, supra note 66, at 1627.

Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 400–401

(1968) (“We hold that CATV operators, like viewers and unlike broadcasters, do not

perform the programs that they receive and carry.”); Teleprompter Corp. v. Columbia

Broad. Sys., Inc., 415 U.S. 394, 408, 412–15 (1974) (“The reception and rechanneling

of these signals for simultaneous viewing is essentially a viewer function, irrespective

of the distance between the broadcasting station and the ultimate viewer.”).

Teleprompter, 415 U.S. at 414.

Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 439–41 (2014) (explaining why

and how Congress rejected the holdings in Fortnightly and Teleprompter).

See id.

Id. at 441–42.

Id. at 442.

See id.

See, e.g., 17 U.S.C. § 107.

Fair use is one of the statutory limitations on the exclusive rights of the

test evaluating the purpose and character of the use, the nature of the copyrighted

work, the amount and substantiality of the portion used, and the effect on the potential

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articles had been considered outside of the scope of U.S. copyright law.

But the introduction of the Xerox photocopier in the 1960s and the

subsequent profusion of billions of photocopies raised anew concerns by

publishers about the lack of copyright protection against photocopying.

In particular, publishers of periodical journals – which were until then

usually only available through a subscription or purchased as an expensive

single back issue – worried that potential consumers could obtain free

photocopies from the library rather than pay the market price.

Even if a

single photocopy could be a benign use, billions of photocopies in the

aggregate posed a significant problem to these publishers.

For example,

in Williams & Wilkins Co. v. United States, scientific journal publishers

presented evidence that in 1970 the National Library of Medicine and the

National Institutes of Health filled requests for 93,000 photocopies of

articles per year – articles that would have otherwise been purchased.

The Court of Claims found the photocopying at issue to be fair use, but

cited White-Smith and Fortnightly Corp. v. United Artists Television, Inc.

and echoed the Supreme Court in those cases, encouraging Congress to act

to address these technological advancements.

In response, Congress

included Section 108 in the 1976 Copyright Act, which carved out a

specific exemption from copyright liability for library copying in certain

circumstances.

While this provided some much-needed guidance, courts

continue to attempt to maintain balance by addressing how photocopying

technology, and its modern corollary of scanning, squares with fair use.

market for the work – are not considered infringements. Id. Examples of fair use

include criticism, parody, comment, news reporting, and scholarship. Id.

Louise Weinberg, The Photocopying Revolution and the Copyright Crisis,

PUB. INT. 99 (Winter 1975).

Id. at 100.

Id. at 104.

See id. at 108 (explaining that even if an individual act of photocopying was

fair use, many individuals undertaking that act posed a different problem).

Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1348 (Ct. Cl. 1973),

aff’d 420 U.S. 376 (1975).

Id. at 1362–63 (“Hopefully, the result in the present case will be but a ‘holding

operation’ in the interim period before Congress enacts its preferred solution.”).

17 U.S.C. § 108 (2018) (“[I]t is not an infringement of copyright for a library

or archives, or any of its employees acting within the scope of their employment, to

reproduce no more than one copy or phonorecord of a work, except as provided in

subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions

specified by this section.”).

Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1271–75 (11th Cir. 2014)

(holding that in evaluating a scanned document under the third factor of the fair use

test, the court must consider the quantity and quality of the copied portion rather than

a fixed 10% of the work figure); Am. Geophysical Union v. Texaco Inc., 60 F.3d 913,

931 (2d Cir. 1994) (holding that the photocopying of scientific articles was not fair

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The trend of adapting copyright to new technologies continued after

the 1976 Act was passed.

In Sony v. Universal City Studios, the Supreme

Court remarked that “the law of copyright has developed in response to

significant changes in technology.”

The Court faced such a significant

change in that case, in which it needed to answer whether videotape

recorders violated copyright law.

The Sony court held that new

technologies that were “capable of substantial noninfringing uses,” such

as the Betamax video recorder, did not constitute copyright infringement.

Indeed, time-shifting – changing the time when someone viewed a

program – actually yielded social benefits by furthering access to the

copyrighted work and was a fair use.

Perhaps the greatest challenge for copyright law, however, was the

Internet. This monumental change gradually spurred the courts and

Congress to address the novel questions posed by it. In 1998, Congress

passed the Digital Millennium Copyright Act in response to the Internet,

which established safe harbors for websites with third-party content as

long as they follow a statutorily required notice and takedown regime.

In decisions around the country, courts held that novel online uses such as

thumbnail images in searches and online searchable books qualified as fair

use.

Many other cases also addressed copyright in the era of the Internet,

attempting to strike the right balance.

Then, in 2018, Congress passed

use because it copied the entire articles for the purpose of multiplying the number of

copies in their possession, which harmed licensing and subscription revenue).

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 457–58

(1984).

Id. at 430.

Id. at 419.

Id. at 442, 456. It further held that the unauthorized home time-shifting of

television programs was fair use. Id. at 455.

Id. at 455.

Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat.

2860.

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007)

(holding that Google’s use of copyrighted thumbnails in its search engine was fair

use); Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003) (holding that the

use of copyrighted images as thumbnails in a search engine was fair use); Authors

Guild v. Google, Inc., 804 F.3d 202, 225 (2d Cir. 2015) (holding that Google’s

digitization of books was a transformative use because it balanced providing access

via its search function while limiting that access in a way that did not usurp the

Cir. 2014) (holding that libraries’ digitization of copyrighted works for the purpose of

permitting full-text searches was fair use).

See, e.g., Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1209 (2021)

(holding that “where Google reimplemented a user interface, taking only what was

needed to allow users to put their accrued talents to work in a new and transformative

program, Google’s copying of the Sun Java API was a fair use of that material as a

matter of law”); Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649, 656 (2d Cir.

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the Music Modernization Act in response to, inter alia, interactive music

streaming platforms such as Spotify and Apple Music substantially

changing the music licensing landscape.

Modifications to copyright law such as these have been critical for

preserving the balance between copyright holders’ rights and public

access.

This historical trend of courts and Congress adapting copyright

to new technologies is needed once again. As will be explored in this rest

of this Article, copyright owners’ synchronization rights now encompass

a much wider range of content than was originally envisioned by the

courts, suggesting a need for rebalancing.

IV. MUSIC COPYRIGHT AND SYNC RIGHTS

To understand sync rights, the reader must first apprehend the

broader landscape of music copyright. Accordingly, this section first

provides an overview of copyrights in musical works and sound recordings

before then describing sync rights.

A. Musical Works and Sound Recordings

Synchronization, and the music copyright law in which it is housed,

only makes up a discreet corner of the copyright universe. Copyright law

protects authored original creative works fixed in tangible form.

The

authorship: (1) literary works, (2) musical works, (3) dramatic works, (4)

pantomimes and choreographic works, (5) pictorial, graphic, and

sculptural works, (6) motion pictures and other audiovisual works, (7)

sound recordings, and (8) architectural works.

these works are entitled to a set of exclusive rights, the exact set varying

depending on the type of work: (1) reproduction, (2) preparation of

2018) (holding that the first sale doctrine did not apply to the sale of music files

through ReDigi); MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005)

(“holding that one who distributes a device with the object of promoting its use to

infringe copyright, as shown by clear expression or other affirmative steps taken to

foster infringement, is liable for the resulting acts of infringement by third parties”).

See Orrin G. Hatch-Bob Goodlatte Music Modernization Act, Pub. L. No.

115-264, 132 Stat. 3676 (2018); The Creation of the Music Modernization Act, U.S.

[https://perma.cc/N776-EZ65] (last visited June 12, 2021) (“The late 20th and early

21st centuries saw the rise of the internet and the advent of online music distribution

and streaming services using pre-internet laws. Specifically, the rise of interactive

streaming services such as Spotify or Apple Music exposed a significant gap in the

licensing system for musical works.”).

Id.

17 U.S.C. § 102 (2018).

Id.

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derivative works, (3) distribution, (4) public performance, (5) public

display, and (6) public performance by means of a digital audio

transmission.

The copyright owner also has the right to convey each of

these exclusive rights separately.

Out of these eight categories of works, music copyright is a

particularly complicated area of law due to the many rights potentially

implicated and the complicated licensing regimes that govern them.

First, a work of music contains two separate copyrights: the musical work

and the sound recording.

100

A musical work is a composition: the notes,

rhythms, and lyrics that comprise a song.

101

For example, the lyrics and

music Bob Dylan wrote for the 1967 song “All Along the Watchtower”

form a musical work.

102

The author of a musical work possesses five of

the six rights enumerated in the Copyright Act: (1) reproduction, (2)

preparation of derivative works, (3) distribution, (4) public performance,

and (5) public display.

103

A sound recording, on the other hand, is the fixed performance of the

musical work in a physical medium, such as a CD or digital music file.

104

For example, “All Along the Watchtower” was performed by Dylan and

later by Jimi Hendrix.

105

Assuming for the purposes of this example that

both works were recorded after 1972,

106

a digital recording of the song by

Dylan contains Dylan’s copyrights in both the underlying musical work

and his sound recording.

107

Hendrix’ rendition, however, is comprised of

Hendrix’ copyright in the sound recording and Dylan’s copyright in the

17 U.S.C. § 106.

17 U.S.C. § 201(d)(2).

See Types of Copyright, BMI,

https://www.bmi.com/licensing/entry/types_of_copyrights [https://perma.cc/2BBF-

4LCT] (last visited May 11, 2021); see also 17 U.S.C. §§ 106, 112, 114–115 (2018)

(explaining the rights of copyright owners and the compulsory licenses available for

musical works and sound recordings).

100

101

Musical Works, Sound Recordings & Copyright, U.S. COPYRIGHT OFF. 1,

https://www.copyright.gov/music-modernization/sound-recordings-vs-musical-

works.pdf [https://perma.cc/WTY6-Y53P] (last revised Feb. 2020).

102

Steve Masur, Understanding the Two Types of Copyright in Music, MGA

(Feb. 11, 2011), https://masur.com/songs-and-records-two-types-of-music-

copyrights/#:~:text=As%20the%20songwriter%2C%20Bob%20Dylan,%2C%5B3%

5D%20is%20paid [https://perma.cc/Y85T-RH8M].

103

104

Musical Works, supra note 101, at 2.

105

Masur, supra note 102.

106

The Copyright Act does not subject sound recordings fixed prior to February

15, 1972, to the usual § 106 protections of federal copyright law, but, following the

Music Modernization Act, it provides the same federal remedies for unauthorized uses

of sound recordings fixed before February 15, 1972. 17 U.S.C. §§ 106, 1401 (2018).

107

Id.

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musical work, and Dylan’s sound recording is not implicated.

108

This is

because the rights of the sound recording copyright owner “do not extend

to the making or duplication of another sound recording that consists

entirely of an independent fixation of other sounds, even though such

sounds imitate or simulate those in the copyrighted sound recording.”

109

Instead, that exact recording – not just a similar sounding soundtrack –

must be used to implicate the copyright in the sound recording.

110

Additionally, the rights encompassed in a sound recording copyright are

slightly more limited than those in a musical work.

111

The author of a

sound recording only has the exclusive right to: (1) reproduce, (2) prepare

derivative works, (3) distribute, and (4) publicly perform by means of a

digital audio transmission, which does not include terrestrial broadcasts.

112

As most digital music consists of a sound recording, playing such a

recording usually implicates both the copyright in the sound recording and

in the underlying musical work.

113

Depending on the use of that music,

the user will often need to license several copyright rights.

114

For example,

if one wanted to play Hendrix’s cover of “All Along the Watchtower” at a

party in New York’s Central Park on a CD version burned from Hendrix’s

cover, they would need to obtain three copyright licenses: (1) the right to

reproduce Dylan’s musical work; (2) the right to publicly perform Dylan’s

musical work; and (3) the right to reproduce Hendrix’s sound recording.

115

This series of required licenses could present a significant barrier for

a potential user. For most types of copyrights, licenses are individually

negotiated, which would require contacting Dylan and Hendrix (or rather,

Hendrix’s estate) and hammering out agreeable terms.

116

Music copyright,

however, has a series of compulsory licenses that have been established

by Congress and third-party intermediaries that serve as clearinghouses for

licenses.

117

Section 115 of the Copyright Act – created in the wake of

White-Smith – establishes a compulsory license for the reproduction and

108

Id.

109

17 U.S.C. § 114(b) (2018).

110

Id.

111

7 U.S.C. § 114(d)(4)(B).

112

113

Masur, supra note 102.

114

See id.

115

Note that because the sound recording public performance right only applies

to performances via digital audio transmissions, it is not implicated in a live

performance in Central Park.

116

See Brian T. Yeh, Copyright Licensing in Music Distribution, Reproduction,

and Public Performance, CONG. RES. SERV. 4 (Sept. 22, 2015) (“Some licenses are

negotiated instruments between a copyright holder and a third party. . . . Other licenses

are created by statute.”).

117

See 17 U.S.C. § 115 (2018).

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distribution of musical works.

118

Section 115 also establishes set rates for

the mechanical reproduction of music, as determined by the Copyright

Royalty Board (“CRB”) and reviewed every five years.

119

Compulsory

licenses do not exist for the musical work public performance right,

although there are consent decrees imposed upon the American Society of

Composers, Authors and Publishers (“ASCAP”) and Broadcast Music,

Inc. (“BMI”) that effectively establish compulsory licensing upon

request.

120

Section 114 contains a compulsory license for the public

performance of sound recordings for satellite and non-interactive

streaming services, and Section 112 contains reproduction and distribution

licenses under certain circumstances for ephemeral copies created by such

services, and both also have rates set by the CRB every five years.

121

Although these compulsory license regimes are important,

122

reality, most prospective licensees obtain licenses through third-party

collective rights organizations that serve as clearinghouses for the various

rights encompassed by music copyright.

123

Most one-off mechanical

musical work reproduction and distribution licenses are acquired through

the Harry Fox Agency.

124

For musical work public performance rights,

four performing rights organizations (“PROs”)

125

– ASCAP, BMI,

SESAC, and Global Music Rights (“GMR”) – offer licenses.

126

Sound

recording public performance rights for digital non-interactive services are

administered by SoundExchange.

127

The only one of these rights to not

have a collective rights organization is the sound recording copyright

owner’s reproduction/distribution right, although record labels usually

118

Id.

119

17 U.S.C. §§ 115, 802(b) (2018); see also REGISTER OF COPYRIGHTS, supra

note 12, at 27–29.

120

consent decrees, ASCAP and BMI “must grant a license to any user that applies, on

terms that do not discriminate against similarly situated licensees”).

121

17 U.S.C. §§ 112, 114, 802(b).

122

For example, even if most would-be licensees do not take advantage of the

statutory licenses, these licenses can still operate as effective rate caps on the

negotiated rates. Jacob Victor, Reconceptualizing Compulsory Copyright Licenses, 72

STAN. L. REV. 915, 938 (2020)

123

These are popular because having the licenses available at a central location

significantly lowers transaction costs. See Loren, supra note 52, at 539 (“The resulting

exceedingly high transaction costs are ameliorated through different collective rights

management systems.”); Victor, supra note 122, at 955 (“The PROs’ rights

aggregation . . . is the quintessential example of a transaction-cost-saving licensing

technique.”).

124

125

Id. at 3. Which are also referred to as collective management organizations

(“CMOs”).

126

Id. at 20.

127

Id. at 22.

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license these rights.

128

Overall, these collective rights organizations

process most of the musical work and sound recording licenses in the

United States, although some copyright owners will still have prospective

licensees negotiate directly with them, their publishers, or their labels.

129

B. The Synchronization Right

As demonstrated in the previous section of this Article, the music

licensing structures articulated in the Copyright Act.

130

In addition to these

explicit rights, however, is an additional, unwritten one: the

synchronization, or “sync” right.

131

Sync rights appear nowhere in the

132

However, courts have recognized

sync rights as exclusive rights of the copyright owner.

133

Specifically, they

have interpreted sync rights to flow from the copyright owner’s Section

106 reproduction right and/or derivative works right.

134

Sync rights are,

however, independent of public performance rights.

135

Courts have defined synchronization as the use, or reproduction, of

music in “timed-relation” to audiovisual works such as films or

videotapes.

136

For example, a sync right is “the right to synchronize . . .

128

See id. at 43 (Licenses to reproduce and distribute sound recordings “are

obtained through direct negotiation between a licensee and the sound recording

owner.”).

129

See id. at 30–31 (“Although the use of the section 115 statutory license has

increased in recent years with the advent of digital providers seeking to clear large

quantities of licenses, mechanical licensing is still largely accomplished through

voluntary licenses that are issued through a mechanical licensing agency such as HFA

or by the publisher directly.”).

130

Wyman, supra note 14.

131

Id.

132

Id.; Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 527 (9th Cir.

2008).

133

Leadsinger, 512 F.3d at 527.

134

See, e.g., Buffalo Broad. Co. v. ASCAP, 744 F.2d 917, 920 (2d Cir. 1984)

(describing the sync right as a form of the reproduction right); Peter DiCola & David

Touve, Licensing in the Shadow of Copyright, 17 STAN. TECH. L. REV. 397, 408 (2014)

(describing the sync right as implicating the derivative works right); REGISTER OF

COPYRIGHTS, supra note 12, at 55–56 (describing the sync right as deriving from either

the reproduction right, the derivative works right, or a combination thereof).

135

Affiliated Music Enters. Inc., v. Sesac, Inc., 160 F. Supp. 865, 867 (S.D.N.Y.

1958), aff’d, 268 F.2d 13 (2d Cir. 1959); M. Witmark & Sons v. Jensen, 80 F. Supp.

843, 846 (D. Minn. 1948).

136

See Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 193 (D. Mass.

2009); Broad. Music, Inc. v. CBS, Inc., 441 U.S. 1, 33 n.23 (1979); Leadsinger, 512

F.3d at 527.

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music with [a] film.”

137

A separate right exists for both musical works and

sound recordings.

138

For musical works, a sync right is implicated

wherever a composition is used in timed-relation with an audiovisual

work.

139

The owner of a copyright in a sound recording also has a

synchronization right, as “the statutory language pertaining to the sound

recording reproduction right is broad enough to include a synch right.”

140

If a specific copyrighted sound recording is synched to an audiovisual

work, then the sync right in the sound recording (more commonly referred

to as the “master use” right) is invoked.

141

In addition to the copyright licenses previously described,

142

prospective user must therefore obtain a “synch license if an existing

musical composition is to be used in synchronization or ‘timed-relation’

with an audiovisual work, such as a theatrical or television motion picture

or commercial.”

143

As there are two distinct sync rights in both musical

works and sound recordings, prospective licensees must potentially

confront obtaining licenses from both copyright owners.

144

These licenses

are crucial to industries such as television and movies, which are perhaps

their most common use.

145

These rights are at the center of music being

137

Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 884 (9th

Cir. 1996).

138

Wyman, supra note 14, at § 2; Bridgeport Music, Inc. v. Still N The Water

Publ’g, 327 F.3d 472, 481 n.8 (6th Cir. 2003) (“[A]n entity wishing to synchronize

music with visual images in a video, motion picture, etc., must obtain a

synchronization license from the musical composition copyright holder and must also

obtain a license from the sound recording copyright holder.”).

139

Common Licensing Terms Defined, ASCAP,

https://www.ascap.com/help/ascap-licensing/licensing-terms-

defined#:~:text=A%20synchronization%20or%20%22synch%22%20right,music%2

0video%20or%20commercial%20announcement.&text=Synchronization%20rights

%20are%20licensed%20by,of%20the%20movie%20or%20program

[https://perma.cc/5SLL-AYKF] (last visited May 18, 2021).

140

Agee v. Paramount Commc’ns, Inc., 59 F.3d 317, 322 (2d Cir. 1995); see

also Ohio Players, Inc. v. Polygram Records, Inc., No. 99CIV.0033, 2000 WL

1616999, at *5 (S.D.N.Y. 2000).

141

See Agee, 59 F.3d at 322.

142

See supra Part IV(a).

143

MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §

30.02[F][3] (2021); see also Darren M. Richard, Music Licensing 101: A Legal Guide

for Creators of Motion Pictures, INDIE SLATE (Oct. 2011),

https://www.dinsmore.com/content/uploads/2017/06/indie20slate20-20richard.pdf

[https://perma.cc/X3WB-974A] (“When seeking to use a specific master sound

recording that embodies a specific artist’s performance of a musical composition, a

licensee must, in addition to clearing the rights for the composition, obtain a ‘master

use’ license.”).

144

Richard, supra note 143.

145

ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62 n.4 (2d Cir.

1996).

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integrated into a film.

146

For example, the movie Eurovision Song Contest

likely had to license copyrighted songs such as ABBA’s “Waterloo,” but

likely not original songs specifically commissioned for the movie, such as

“Double Trouble,” which would presumably be works for hire.

147

Similarly, a sing-along videocassette with songs from Disney hits such as

Pinocchio coordinated to play with video clips clearly implicates a sync

right.

148

While the sync right for musical works is implicated wherever a

composition is synched with an audiovisual work, the sound recording

sync right only applies when a specific copyrighted recording is used.

149

If an original cover of a song is created for the audiovisual work, only the

musical work is implicated.

150

However, if a specific sound recording is

used, the sync rights in the sound recording must also be cleared through

a “master use” license, which allows the licensor to synchronize the sound

recording in timed-relation with the relevant audiovisual work.

151

Similarly to the sync license, the master use license allows the licensee to

use the sound recording in an audiovisual work and make copies of the

audiovisual work.

152

A key task for a producer, therefore, is “obtain[ing]

authorization from the owner of a sound recording before reproducing that

recording in the soundtrack of an audiovisual work.”

153

Sync and master use licenses are required for the full creation of

many audiovisual works, and this can pose a significant hurdle to

146

M. Witmark & Sons v. Jensen, 80 F. Supp. 843, 844 (D. Minn. 1948) (noting

that through these copyright licenses “music by such synchronization will be

integrated with the film”).

147

See Elena Nicolaou, The Songs on Netflix’s Eurovision Soundtrack Are

Destined to Be Hits, OPRAH DAILY (June 29, 2020),

https://www.oprahdaily.com/entertainment/a33000216/eurovision-movie-soundtrack

[https://perma.cc/6K2X-7NTH] (listing the songs in the movie, including both

copyrighted songs necessitating a sync license and original songs); see also 17 U.S.C.

§ 101 (2018) (defining a work for hire, including for “a work specially ordered or

commissioned for use . . . as a part of a motion picture or other audiovisual work”).

148

See Bourne Co. v. Walt Disney Co., No. 91 Civ. 0344 (LLS), 1992 WL

204343, at *2 (S.D.N.Y. Aug. 7, 1992).

149

Romantics v. Activision Publ’g, Inc., 574 F. Supp. 2d 758, 768 (E.D. Mich.

2008).

150

Id.

151

Tuneen E. Chisolm, In Lieu of Moral Rights for IP-Wronged Music Vocalists:

Personhood Theory, Moral Rights, and the WPPT Revisited, 92 ST. JOHN’S L. REV.

453, 466 (2018) (“[I]f-and only if-a copyrighted sound recording is used, a master

license for the use of the sound recording is also required.”); Richard, supra note 143.

152

Richard, supra note 143; see also Platinum Record Co. v. Lucasfilm, Ltd.,

566 F. Supp. 226, 226-27 (D.N.J. 1983) (“Under this Agreement Chess Janus gave

Lucasfilm the right to use the ‘master recordings’ or ‘matrixes’ of four popular songs

for use on the soundtrack of the motion picture American Graffiti.”).

153

Agee v. Paramount Commc’ns, Inc., 59 F.3d 317, 322 (2d Cir. 1995).

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producers and others.

154

Unlike some other music copyright rights, there

is no regulation of sync licenses, so the prices of these licenses are

negotiated solely on the open market.

155

In addition, while the musical

work reproduction and distribution rights and digital non-interactive

performances of sound recordings all have compulsory licenses, sync

rights do not.

156

Instead, whoever wants to sync music to an audiovisual

work must obtain a sync license on the open market at the whim of the

157

Due to this lack of regulation, sync licenses, although

they are usually one-time flat fees, can vary wildly in amount, from a

nominal sum to tens of thousands of dollars or more for including it in an

audiovisual work; or a rights owner can simply refuse to allow the use of

their song or recording.

158

In addition, it can be difficult to find who possesses the sync right

and contact them.

159

If someone wishes to use a musical work or a sound

recording in their audiovisual work, they generally need to negotiate

directly with either the author or artist directly, or their publisher or record

label.

160

Unlike other music rights, there are no official “clearinghouses”

or collective rights organizations in the United States for sync licenses,

161

although some entities have started to offer such services on a smaller

scale.

162

For example, PretzelAux offers a library of music that allows

154

See Richard, supra note 143.

155

PERIPHERIES: THE ONLINE CIRCULATION OF AUDIOVISUAL CONTENT FROM THE SMALL

MARKET PERSPECTIVE 277 (Petr Szczepanik et al., eds., 2020) (describing the role of

collective management organizations in music licensing for film).

156

157

Kihn v. Bill Graham Archives, LLC, 445 F. Supp. 3d 234, 253 (N.D. Cal.

2020) (on appeal) (Synchronization licenses “are voluntary and negotiated, not

compulsory.”); REGISTER OF COPYRIGHTS, supra note 12, at 56.

158

Richard, supra note 143 (“The fees can range from nominal amounts to tens

of thousands of dollars depending upon the specific rights needed, the scope and

budget of the project, and the relative leverage and bargaining power of the parties

involved.”).

159

See Live Streaming Your Show, supra note 4.

160

See Leška, supra note 155, at 277 (Petr Szczepanik et al., eds., 2020) (“Unless

the rightsholder appoints a CMO to administer the synchronization right . . . the

producer needs to seek synchronization approval directly from the publisher or, if

there is no publisher, the author.”).

161

Peter K. Yu, How Copyright Law May Affect Pop Music Without Our

Knowing It, 83 UMKC L. REV. 363, 387, 392 (2014) (“[N]o U.S. CMO has thus far

been established to grant synchronization licenses to audiovisual contents, such as

MTV or YouTube videos.”).

162

Live Streaming Your Show, supra note 4, (“Unfortunately there are no official

US ‘clearinghouses’ available to easily secure synchronization licenses; however,

independent entities offering these services can be found by an internet search using

key phrases such as ‘synchronization license services’ or ‘synchronization clearance

services.’”).

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streamers to play their music on their audiovisual work.

163

Other

intermediaries also exist,

164

but in a much more segmented market than the

other collective rights organization-dominated music licenses. Larger

entities have entered into direct relationships with music publishers, such

as YouTube, which licenses sync rights for user-uploaded videos on its

platform,

165

but this is not the case for smaller licensees or licensors, for

whom it is much less common to appoint a collective rights organization

to administer their sync rights.

166

V. SYNC RIGHTS IN THE COURTS

In addition to sync rights being difficult for creators and users to

understand and license, there is limited guidance on them. Compared to

many areas of copyright law, sync rights have gotten short shrift in

scholarship and in the courts. Historically, scholars have given little

consideration to sync rights, with only three law review articles primarily

discussing U.S. sync rights.

167

Several hundred-page copyright law

casebooks gloss over sync rights in a few sentences.

168

Even Melville and

David Nimmer, in their leading copyright treatise, provide few insights

into the confines of sync rights, limiting their commentary primarily to

contractual terms for sync licenses.

169

163

What Is Pretzel?, PRETZEL, https://www.pretzel.rocks/for/livestreamers

[https://perma.cc/JS8C-KPAV] (last visited May 11, 2021).

164

See, e.g., Jay Rosenthal & Christos P.

Badavas, Additional Comments of the National Music Publishers’ Association, Inc.

and the Harry Fox Agency, Inc. in Response to July 23, 2014 Second Notice of

Inquiry, in U.S. COPYRIGHT OFFICE, MUSIC LICENSING STUDY:

COMMENTS IN RESPONSE TO THE JULY 23, 2014 REQUEST FOR

ADDITIONAL COMMENTS DUE ON SEPT. 12, 2014 (2014) (citing examples such

as the Harry Fox Agency, Greenlight Music, Dashbox, Songfreedom, CueSongs,

SynchTank, Rumblefish, and others).

165

at 1276.

166

Leška, supra note 155, at 277 (noting that it “rarely happens”).

167

For example, few articles have addressed the sync right in more than passing.

See Cohen, supra note 22, at 788 (summarizing sync right law and proposing

weakening copyright owners’ claims to re-use fees); Skopicki, supra note 24, at 21

(proposing requiring sync licenses for holographic performances); DeLisa, supra note

24, at 1301–12 (proposing a compulsory license system for sync licenses).

168

See, e.g., JEANNE C. FROMER & CHRISTOPHER JON SPRIGMAN, COPYRIGHT

LAW: CASES AND MATERIALS 376–77 (2d ed. 2020); COHEN ET AL., supra note 29, at

416.

169

See generally MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON

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This lack of attention has, in part, been due to a dearth of case law on

sync rights.

170

Since 1990, there have been less than two dozen judicial

opinions addressing sync rights in any detail.

171

An even smaller subset

of this limited body of case law addresses the substantive sync rights, with

some cases instead addressing the terms of sync licenses

172

or the viability

of sync rights for purposes of a fair use analysis.

173

A. Film, Television, and Commercials

Most of the early synchronization cases involved antitrust allegations

by the film and television industries against music rights organizations.

174

For example, in M. Witmark & Sons v. Jensen – often understood to be the

first major case on sync rights – the plaintiffs alleged copyright

infringement of their musical work copyright and the defendants

countered that plaintiffs were engaged in anti-competitive behavior in

violation of antitrust law.

175

The plaintiffs were members of ASCAP,

which adopted a uniform plan for its members to license copyrighted

music to motion picture producers for the purpose of synchronization with

170

Skopicki, supra note 24, at 15–20 (2020) (surveying the lack of case law on

sync rights).

171

Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 193 (D. Mass. 2009);

ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62–63 (2d Cir. 1996); Woods

v. Bourne Co., 60 F.3d 978, 984 (2d Cir. 1995); Agee v. Paramount Commc’ns, Inc.,

59 F.3d 317, 322 (2d Cir. 1995); Buffalo Broad. Co. v. ASCAP, 744 F.2d 917, 920

(2d Cir. 1984); Downtown Music Publ’g LLC v. Peloton Interactive, Inc., 436 F.

Supp. 754, 760 (S.D.N.Y. 2020); Beastie Boys v. Monster Energy Co., 983 F. Supp.

2d 338, 351 (S.D.N.Y. 2013); Freeplay Music, Inc. v. Cox Radio, Inc., 404 F. Supp.

2d 548, 551 (S.D.N.Y. 2005); Ohio Players, Inc. v. Polygram Records, Inc., No.

99CIV.0033, 2000 WL 1616999, at *5 (S.D.N.Y. 2000); Bourne Co. v. Walt Disney

Co., No. 91 Civ. 0344 (LLS), 1992 WL 204343 (S.D.N.Y. Aug. 7, 1992); Zomba

Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 579 (6th Cir. 2007); Bridgeport

Music, Inc. v. Still N The Water Publ’g, 327 F.3d 472, 480–81 (6th Cir. 2003); House

of Bryant Publ’ns, LLC v. A & E Television Networks, No. 3:09-0502, 2009 WL

3673055, at *1 (M.D. Tenn. 2009); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d

522, 529 (9th Cir. 2008); Maljack Productions, Inc. v. GoodTimes Home Video Corp.,

81 F.3d 881, 888 (9th Cir. 1996); Kihn v. Bill Graham Archives, LLC, 445 F. Supp.

3d 234, 253 (N.D. Cal. 2020); EMI Ent. World, Inc. v. Priddis Music, Inc., 505 F.

Supp. 2d 1217, 1225 (D. Utah 2007).

172

See, e.g., Woods, 60 F.3d at 983–84 (discussing sync licenses for the song

When the Red, Red, Robin Comes Bob, Bob, Bobbin’ Along); Walt Disney, 1992 WL

204343, at *3 (regarding whether the sing-along version of a song from Pinocchio

violated the terms of the sync license).

173

See, e.g., House of Bryant, 2009 WL 3673055, at *1 (describing the plaintiff’s

prior sync licensing arrangements, including to the University of Tennessee at

Knoxville).

174

Skopicki, supra note 24, at 16–18.

175

M. Witmark & Sons v. Jensen, 80 F. Supp. 843, 844 (D. Minn. 1948).

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the film to be produced.

176

This plan effectively required producers to

“enter into a blanket license with ASCAP for the performance rights of the

copyrighted music integrated in sound films.”

177

The defendants alleged

that ASCAP had “monopolistic control over the copyrighted films in

which their music is integrated” and that this control extended beyond that

which was granted by the Copyright Act.

178

The U.S. District Court for

the District of Minnesota agreed that ASCAP’s plan constituted copyright

misuse.

179

In denying recovery to the plaintiffs,

180

it emphasized that

ASCAP controlled 80% of the licensing of music to films and that

“[t]hrough Ascap, these plaintiffs and their associates by a refusal to

license, or by the imposition of an exorbitant performance license fee, can

sound the death knell of every motion picture theatre in America.”

181

Despite Witmark primarily focusing on copyright misuse,

182

it is also

notable as one of the first cases to recognize sync rights.

183

The decision

explains that a music license “permit[s] the producers to synchronize the

copyrighted music on the sound track of the motion picture film to be

produced. . . . [these] are merely synchronization rights”

184

It later notes

that “it may be assumed that a copyright owner of music may have the

right to license the recording of his composition on a film and also the

exclusive right to license the performance of the synchronized

composition.”

185

While on its face this distinction is between the

reproduction and public performance right, recording a composition on a

film also refers to the separate synchronization right and its distinction

from other rights held by the copyright owner.

186

Starting in the 1990s, music copyright cases started to more directly

address sync rights. In Bourne Co. v. Walt Disney Co., the U.S. District

Court for the Southern District of New York made explicit what was

hinted at in Witmark: “The right to print the lyrics . . . is qualitatively

different from the right to synchronize that song with a visual image.”

187

176

Id.

177

Id. at 849.

178

Id. at 846.

179

Id. at 850 (extending the patent misuse doctrine to copyright).

180

Id.

181

Id. at 847.

182

See Roger Arar, Note, Redefining Copyright Misuse, 81 COLUM. L. REV.

1291, 1293–94 (1981) (discussing how the Witmark court applied the copyright

misuse defense).

183

Skopicki, supra note 24, at 16 (describing Witmark as one of the earliest sync

cases).

184

Jensen, 80 F. Supp. at 844.

185

Id. at 846.

186

Id. at 846–47.

187

Bourne Co. v. Walt Disney Co., No. 91 Civ. 0344, 1992 WL 204343, at *4

(S.D.N.Y. Aug. 7, 1992).

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Three years later, in Agee v. Paramount Communications, Inc., the Second

Circuit faced the question of whether sound recordings had their own sync

right.

188

In Agee, Paramount created an audiovisual work that

synchronized part of a duplicated sound recording to visual images of two

men perpetrating a burglary.

189

Paramount tried to argue that commercial

copying for time-shifting purposes did not violate the reproduction right,

like in the seminal Supreme Court case of Sony.

190

The Second Circuit

avoided this specific question, determining that Paramount had duplicated

and synchronized Agee’s sound recording to not just time-shift, but also

enhance the performance by ensuring that viewers would not see any

mistakes.

191

The district court had held that there were no sync rights in a

sound recording copyright owner’s reproduction right.

192

The Second

Circuit disagreed, holding that synchronizing previously recorded sounds

on the soundtrack of an audiovisual work is part of the reproduction right

granted by § 114(b) to the owner of rights in a sound recording.

193

Meanwhile, courts also started to define the breadth of sync rights.

In Buffalo Broadcasting Co. v. American Society of Composers, Authors

and Publishers, the Second Circuit referred to sync rights as “the right to

reproduce the music onto the soundtrack of a film or a videotape in

synchronization with the action.”

194

Similarly, in Bridgeport Music, Inc.

v. Still N The Water Publishing, the Sixth Circuit explicitly said that

synchronization licenses refer to the “use of a composition in a film, pre-

recorded radio or television program, or radio or television

commercial.”

195

B. Video Games

The sync right cases up to this point exclusively addressed these

classic audiovisual works. One of the first cases to implicitly broaden this

definition was Romantics v. Activision Publishing, Inc., which addressed

whether a use of a song in a video game infringed the copyright of the

188

59 F.3d 317, 319 (2d Cir. 1995).

189

Id.

190

464 U.S. 417, 447–55 (1984) (holding that recording a television program for

later viewing was a permissible time shifting that did not violate the copyright in the

program due to fair use).

191

Agee, 59 F.3d at 323–24 (2d Cir. 1995). Although the court held that

Paramount was liable for violating Agee’s sync rights, it held that the stations were

not liable for violating Agee’s sync rights, however, because they were protected by

the ephemeral recording exemption under 17 U.S.C. § 114(a). Id. at 326–27.

192

Agee, 59 F.3d at 320.

193

Id. at 322.

194

744 F.2d 917, 920 (2d Cir. 1984).

195

327 F.3d 472, 481 n.8 (6th Cir. 2003).

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plaintiffs’ musical composition.

196

The video game in question was Guitar

Hero, which allows players to perform well-known rock songs in time with

the music.

197

The court noted that the “graphic video elements of the game

require complex synchronization with each song to enable the realistic

simulation of guitar play.”

198

The defendant could sync the song with the

video game graphics because it had acquired the requisite proper sync

license from the musical work copyright owner.

199

It did not have to obtain

a master use license because it had recorded a cover of each musical work,

and the plaintiffs’ sound recording copyright was therefore not

implicated.

200

While this expanded the scope of sync rights, the inclusion

of video games was unsurprising, especially with a game where songs are

synched to specific timed graphics such as Guitar Hero.

201

C. Karaoke

A more controversial question is whether karaoke machines require

sync licenses, on which courts have come to different conclusions. The

first court to address this question was the Second Circuit in ABKCO

Music, Inc. v. Stellar Records, Inc.

202

The court recognized that “[a]

synchronization license is required if a copyrighted musical composition

is to be used in ‘timed-relation’ or synchronization with an audiovisual

work.”

203

But does a device merely showing the lyrics on a screen, without

any accompanying images, implicate synchronization?

204

The defendant

in the case specifically questioned whether Congress had kept pace with

technological advancements or whether the definition of “phonorecord,”

as compared to “audiovisual work,”

205

was underinclusive.

206

But the

196

574 F. Supp. 2d 758, 766 (E.D. Mich. 2008).

197

Id. at 762.

198

Id.

199

Id.

200

Id. at 768.

201

Id. at 762.

202

96 F.3d 60, 62 (2d Cir. 1996).

203

Id. at 63 n.4.

204

Id. at 65.

205

Phonorecords are defined as “material objects in which sounds, other than

those accompanying a motion picture or other audiovisual work, are fixed by any

method now known or later developed, and from which the sounds can be perceived,

reproduced, or otherwise communicated, either directly or with the aid of a machine

or device.” 17 U.S.C. § 101 (2018). Audiovisual works are defined as “works that

consist of a series of related images which are intrinsically intended to be shown by

the use of machines or devices such as projectors, viewers, or electronic equipment,

together with accompanying sounds, if any, regardless of the nature of the material

objects, such as films or tapes, in which the works are embodied.” Id.

206

ABKCO, 96 F.3d at 65. The court, however, noted that it was Congress’ role

to redefine terms in the future, not theirs. Id. This echoed concerns about copyright

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court concluded that this method of display constituted an audiovisual

work because it consisted “‘of a series of related images’ – the lyrics –

‘together with accompanying sounds’ – the music.”

207

Therefore,

according to the ABKCO court, the use of a video image – even stock ones

such as a sun-drenched beach – and lyrics in combination with music must

first clear sync rights with the copyright owners.

208

The question of sync rights and karaoke was next raised in the District

of Utah in EMI Entertainment World, Inc. v. Priddis Music, Inc.

209

In that

case, plaintiff EMI argued that karaoke machines required a sync license

as they “displayed songs’ lyrics in timed relation to music.”

210

But

defendant Priddis countered that “courts have recognized synchronization

rights only with reference to films, motion pictures, videotapes, television

programs and commercials, all of which have significant visual image

content, and that the video display of the text of song lyrics not

accompanied by such image content falls beyond the scope of

synchronization rights as defined by the existing case law.”

211

The court

agreed; “a copyright holder’s synchronization right [does not] extend[] to

the graphical display of written text, without more.”

212

Here, Priddis had

simply digitally reprinted copies of the lyrics,

213

unlike in ABKCO, where

the karaoke disks contained lyrics and graphics.

214

Without more visual

image content, the karaoke machines did not qualify as an audiovisual

work, but merely as a visual work.

215

Therefore, the sync right was not

implicated and the court granted Priddis’ motion for summary judgment

on the sync license question.

216

Similarly to EMI, in the Ninth Circuit case of Leadsinger, Inc. v.

BMG Music Publishing, BMG requested that karaoke companies pay for

a sync license to use their karaoke devices.

217

Like in ABKCO and EMI,

the decision turned on whether the karaoke devices qualified as

audiovisual works, as the copyright owner’s sync right is their “right to

control the synchronization of musical compositions with the content of

law not keeping pace with technology and the necessity of Congress to remedy it, like

those in White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 18 (1908), and

Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394, 414 (1974).

207

ABKCO, 96 F.3d at 65 (quoting 17 U.S.C. § 101).

208

Id. at 62–63.

209

505 F. Supp. 2d 1217, 1219 (D. Utah 2007).

210

Id.

211

Id. at 1221.

212

Id. at 1222.

213

Id. at 1223.

214

ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62–63 (2d Cir.

1996).

215

EMI, 505 F. Supp. 2d at 1223.

216

Id. at 1225.

217

512 F.3d 522, 525 (9th Cir. 2008).

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audiovisual works.”

218

The Copyright Act defines audiovisual works as

“works that consist of a series of related images which are intrinsically

intended to be shown by the use of machines, or devices such as projectors,

viewers, or electronic equipment, together with accompanying sounds, if

any.”

219

The Ninth Circuit held that karaoke devices are audiovisual works

under this definition, as the projected lyrics are “a series of related images”

that match the accompanying music.

220

It disagreed with the EMI court’s

analysis, concluding that, unlike printed song lyrics, “images of song lyrics

embedded in a karaoke device are part of a series of images, and must be

shown by a machine so that the consumer knows when to sing each

lyric.”

221

Therefore, the Ninth Circuit held that Leadsinger needed to

secure sync licenses “to display images of song lyrics in timed relation

with recorded music.”

222

VI. COMPLICATIONS WITH NEW CONTENT INNOVATIONS

For most of the twentieth century, sync rights appeared to be

narrowly cabined to only include movies, television shows, and

commercials. The early cases that defined sync rights were decided

decades ago, citing sync rights exclusively for the soundtrack of a film or

a videotape.

223

In EMI, the defendant argued that courts “have recognized

synchronization rights only with reference to films, motion pictures,

videotapes, television programs and commercials,” and the court

agreed.

224

Even as recently as 2013, a court defined the sync right as the

right “to authorize the use of a song in a movie or commercial

soundtrack.”

225

In the twenty-first century, courts started to gradually

broaden the scope of sync licenses to include media such as

advertisements, promotional videos, and video games.

226

As we have

seen, courts have expressly confronted the questions of whether video

218

Id. at 527.

219

17 U.S.C. § 101.

220

Leadsinger, 512 F.3d at 527–28.

221

Id. at 528 n.2.

222

Id. at 529.

223

Broad. Music, Inc. v. CBS, Inc., 441 U.S. 1, 33 n.23 (1979); Buffalo Broad.

Co. v. ASCAP, 744 F.2d 917, 920–21 (2d Cir. 1984).

224

EMI Ent. World, Inc. v. Priddis Music, Inc., 505 F. Supp. 2d 1217, 1221,

1224 (D. Utah. 2007).

225

Beastie Boys v. Monster Energy Co., 983 F. Supp. 2d 338, 347 (S.D.N.Y.

2013).

226

See Skopicki, supra note 24, at 18 (describing how sync cases gradually

started to address commercial advertisements).

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games and karaoke machines qualify as audiovisual works that necessitate

sync licenses.

227

Some commentators have argued that as technology has advanced, so

have courts’ definitions of audiovisual works, but, at their core, these types

of works are very similar to the traditional audiovisual works of film and

television programs.

228

Once courts started to face questions further afield

from the core of audiovisual works, uniformity of understanding around

what constituted an audiovisual work started to break down.

229

For

example, the District of Utah and the Ninth Circuit are at odds over

whether a text-only karaoke machine requires a sync license.

230

While

sync rights’ relationship with karaoke machines – a machine invented over

fifty years ago

231

– is still being worked out, novel technologies and forms

of audiovisual content have arisen which pose new questions for sync

rights. While movie or television show soundtracks clearly require a sync

license, it is less apparent whether new types of media would require

one.

232

Perhaps the most significant question about synchronization and

technology at the moment is whether sync licenses are required for all

forms of streamed content. For truly live streams that are in real time and

not recorded, the work is not reproduced and therefore doesn’t implicate

227

Romantics v. Activision Publ’g, Inc., 574 F. Supp. 2d 758, 762 (E.D. Mich.

2008); ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62–63 (2d Cir. 1996);

Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 528 (9th Cir. 2008); EMI, 505

F. Supp. 2d at 1222. Zomba Ent., Inc. v. Panorama Records, Inc., 491 F.3d 574, 578

(6th Cir. 2007) (addressing whether copying lyrics on the screen for karaoke in sync

with songs was fair). Another sync case that addressed karaoke machines was Zomba

Enterprises, Inc. v. Panorama Records, Inc., but that case instead addressed whether

copying lyrics on the screen for karaoke in sync with songs was fair use. The court

held that it was not. 491 F.3d 574, 584 (6th Cir. 2007).

228

See Skopicki, supra note 24, at 24–26 (arguing that courts have increasingly

taken a broad interpretation of what constitutes an audiovisual work and that

holograms should qualify as such).

229

Id. at 30.

230

EMI, 505 F. Supp. 2d at 1223 (holding that sync licenses were not necessary

for karaoke machines that featured only digitized text, as the work was not sufficiently

audiovisual); Leadsinger, 512 F.3d at 528 (holding that karaoke machines were

sufficiently audiovisual because the machines used images, even if the images were

solely song lyrics).

231

Matt Alt, The Man Who Invented Karaoke Is 95 and His Machine Still Works,

KOTAKU (June 26, 2020, 2:00 PM), https://kotaku.com/the-man-who-invented-

karaoke-is-95-and-his-machine-stil-1844154550 [https://perma.cc/8YLL-A3UR]

(explaining that Daisuke Inoue is often credited as the inventor of the first karaoke

machine in 1971, but Shigeichi Negishi was actually the first inventor of the machine

in 1967).

232

COHEN ET AL., supra note 2929, at 416.

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the copyright owner’s exclusive sync rights.

233

But any time there is a

reproduction, such as with a movie, TV show, commercial, or other

audiovisual work with music in timed-relation, there must be a sync

license.

234

The same would appear to be true for online audiovisual

content.

235

Therefore, if the work is later posted or can be replayed, the

creator almost certainly requires a sync license.

236

This distinction between live and recorded streams has become

especially important during the COVID-19 pandemic, when traditionally

live events such as concerts, DJ sets, and fitness classes have moved

online.

237

Even before the pandemic, streaming content such as video

games and online workout classes was starting to become popular.

238

For

example, the rise of at-home fitness classes from entities such as Peloton

and Mirror have expanded the types of uses that potentially require sync

licenses.

239

If sync rights apply to these types of works, these entities and

others that post recorded content that happens to contain music online

233

Gregory Pryor & Eric Zwilling, Reed Smith’s Guide to Live Streaming U.S.

Edition REED SMITH 20 (Apr. 2020); Seale, supra note 5 (arguing that a pure

livestream, which is not archived, would not require a sync license because the work

is not fixed (it disappears after the performance is over)). A pure livestream would,

however, require a musical composition public performance license. Seale, supra note

5. But see Jon Blistein, Twitch Licenses Music Now. But the Music Industry Says It’s

Skirting the Rules, ROLLING STONE (Oct. 1, 2020, 2:06 PM),

https://www.rollingstone.com/pro/features/twitch-soundtrack-licensing-sync-

1069411 [https://perma.cc/6V32-HBQP] (According to Noah Downs, a lawyer, “[t]he

idea that playing music during a livestream does not require a synchronization license

is wrong. It’s bad interpretation of copyright law. . . . because the music is definitely

synchronized in timed relation with images and video.”).

234

Pryor & Zwilling, supra note 233, at 20.

235

Id.

236

Pryor & Zwilling, supra note 233, at 20; Brandit & Tibbs, supra note 3

(proposing that if an artist uploads their video for playback, they need not only a public

performance license, but also a sync license, which gives the licensee permission to

pair a video with music and save it for playing on demand.); Seale, supra note 5

(arguing that an archived livestream, on the other hand, requires both a sync license

and, if a sound recording is used, a master use license.).

237

Jess Cording, How COVID-19 Is Transforming the Fitness Industry, FORBES

(July 13, 2020, 4:07 PM),

https://www.forbes.com/sites/jesscording/2020/07/13/covid-19-transforming-fitness-

industry/?sh=57436c7b30a7.

238

See id. (“virtual workouts were in existence prior to the COVID-19

pandemic”); Adam Epstein, How Watching Other People Play Video Games Took

Over the World, QUARTZ, https://qz.com/1985927/how-video-game-streaming-took-

over-the-world [https://perma.cc/ZV8W-73D3] (last updated Mar. 29, 2021).

239

Sekou Campbell, Peloton Suit Shows Sync Licensing Is Next Copyright

Horizon, LAW360 (Feb. 19, 2020, 1:35 PM),

https://www.law360.com/articles/1244986/peloton-suit-shows-sync-licensing-is-

next-copyright-horizon [https://perma.cc/CBS2-MKV8].

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would have to undertake the onerous sync licensing process,

240

which

could chill the content we have come to experience – and expect – online.

This ambiguity about how far sync rights reach has even contributed

to nefarious attempts of police officers to “weaponize” copyright.

241

There

have been reports of officers playing copyrighted music during potentially

contentious altercations.

242

The logic is that if they are recorded, those

recordings will contain copyrighted music, which will trigger song

recognition software on major platforms such as YouTube and Instagram

that will cause them to be taken down.

243

This practice has become

common enough that some law enforcement departments have even

instructed their officers to engage in this so-called “copyright hacking.”

244

In addition to the question of how far sync rights stretch, new content

forms also face an onerous battle to obtain sync licenses for their

purposes.

245

Unlike recordings of artists playing music, which can rely on

compulsory reproduction licenses under § 115, recorded audiovisual

events, even candid ones, must rely on individually negotiated sync

licenses.

246

There are no compulsory licenses for sync rights either, which

240

See supra notes 155–66 and accompanying text.

241

See, e.g., Tim Cushing, Latest Anti-Accountability Move By Cops Involves

Playing Music While Being Recorded In Hopes Of Triggering Copyright Takedowns,

TECHDIRT (Feb. 10, 2021, 9:31 AM),

https://www.techdirt.com/articles/20210209/19152846222/latest-anti-accountability-

move-cops-involves-playing-music-while-being-recorded-hopes-triggering-

242

Id.; Sarah Rose Sharp, Cop Admits to Playing Copyrighted Music to Keep

Activist Recording off Youtube, HYPERALLERGIC (July 2, 2021),

https://hyperallergic.com/660912/cop-plays-copyrighted-taylor-swift-music-to-keep-

activist-recording-off-youtube [https://perma.cc/65KF-3K93].

243

Tim Cushing, Law Enforcement Officer Openly Admits He’s Playing

Copyrighted Music To Prevent Citizen's Recording From Being Uploaded To

YouTube, TECHDIRT (July 6, 2021, 9:41 AM),

https://www.techdirt.com/articles/20210702/11260847107/law-enforcement-officer-

openly-admits-hes-playing-copyrighted-music-to-prevent-citizens-recording-being-

uploaded-to-youtube.shtml [https://perma.cc/HG23-WQ6B].

244

See, e.g., Matthew Gault, Cop Was Instructed to Use Music to Disrupt

Filming, VICE (Sept. 9, 2021, 9:39 AM),

https://www.vice.com/en/article/93y77y/cop-was-instructed-to-use-music-to-disrupt-

filming?utm_medium=social&utm_source=motherboardtv_facebook&fbclid=IwAR

1XmtBjaqjqiShWsmvoykryhQACoIxEmjTfcpi7a8QXh6nZ9VCZdpjWrwY

[https://perma.cc/55RZ-EVZV]; Tim Cushing, Officer Claims Sheriff's Office Told

Him To Play Copyrighted Music To Shut Down Citizens’ Recordings, TECHDIRT

(Sept. 13, 2021, 11:58 AM),

https://www.techdirt.com/articles/20210911/21360647545/officer-claims-sheriffs-

office-told-him-to-play-copyrighted-music-to-shut-down-citizens-recordings.shtml

[https://perma.cc/TD4G-4T73].

245

Campbell, supra note 239.

246

Id.

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means the copyright owner can reject a use that would have likely been

allowed to proceed in a different medium through compulsory licenses and

collective rights organizations.

247

The necessity of individually

negotiating these sync licenses generates significant transaction costs,

especially for smaller content creators that may not have the time or

resources to ascertain, contact, and obtain rights from the relevant

248

While sync licenses can pose a significant burden to old and new

audiovisual content generators alike, the online streaming world faces

additional obstacles: short lead time and limited time use.

249

For example,

in a recent case involving Peloton, the fitness company articulated how

modern uses of music square poorly with extant sync licensing

processes.

250

Peloton explained that “[b]ecause instructors provide

Peloton with limited notice of the music that they intend to play in class,

Peloton . . . is ‘ill-suited’ to the ‘traditional’ method by which music

publishers license rights to third parties for use in derivative works with

audio and visual components.”

251

This lack of advance notice and need to

negotiate rights quickly makes obtaining sync rights almost impossible for

uses such as Peloton’s.

Another problem is the limited time and use usually negotiated under

sync licenses. Sync licenses typically specify the work in which the music

will be included, the media where it will be offered, and the time period

during which it will be offered, and are thus limited licenses.

252

If a user

negotiates a license for a specific segment of Video A, they could not then

use that license to justify their inclusion of that song on another segment

in Video A or in Video B, unless of course they specifically contracted for

that.

253

This has manifested itself as a problem, for example, where old

television programs are reshown on streaming services.

254

These shows

247

See supra Part IV(b).

248

Yu, supra note 161, at 387, 393 (“As the need for performance and

synchronization licenses in the digital environment continues to grow, transaction

costs are likely to substantially increase.”).

249

Nelson, supra note 18.

250

Downtown Music Publ’g LLC v. Peloton Interactive, Inc., 436 F. Supp. 754,

760 (S.D.N.Y. 2020).

251

Id.

252

Vlad Kushnir, Legal and Practical Aspects of Music Licensing for Motion

Pictures, 8 VAND. J. ENT. & TECH. L. 71, 82 (2005) (describing the “limited videogram

license” clause usually present in sync license agreements).

253

Yu, supra note 161, at 392 (“[I]t is understood that a synchronization license

granted for Video A may not be used for Video B”).

254

David Oxenford, Missing Music on Streamed TV Programs Highlights Rights

Issues for Podcasters and Video Producers, BROADCAST LAW BLOG (Apr. 28, 2021),

https://www.broadcastlawblog.com/2021/04/articles/missing-music-on-streamed-tv-

programs-highlights-rights-issues-for-podcasters-and-video-producers/#page=1

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are now missing music that was featured on the original broadcast due to

the original sync licenses only covering over-the-air broadcasts or short

periods of time.

255

Such restrictions on sync licenses in contracts have

limited the exploitation of audiovisual works by their creators.

256

Finally, the uncertainty of when sync rights apply to these new forms

of content has caused over-enforcement and apprehension about being

liable for copyright infringement.

257

In the online video game streaming

space, gamers record and upload streams of themselves playing video

games as video on demand (“VOD”).

258

These VODs may be muted if

they appear to violate the sync rights through playing not just music in the

background, but even through just playing in-game music, which is of

course embedded in the game itself.

259

In addition to the risk of having

one’s content blocked, the monetary penalties for sync right violations can

be enormous.

260

This is due to the amount of statutory damages that can

be available to the copyright owner, which can be as high as $150,000 per

infringement.

261

This can lead to enormous claims, such as those of

several music publishers against Peloton, where they claimed $300 million

in damages for Peloton’s use of more than 2,000 musical works in their

online fitness classes.

262

To contract around these problems, some online platforms have

negotiated agreements with musical work and sound recording copyright

owners.

263

Most notably, YouTube and Meta both have content

identification (“Content ID”) and management systems, as well as

arrangements with major music publishers that cover at least some sync

rights.

264

But other platforms, such as Twitch, lack such blanket sync

[https://perma.cc/AAH9-V4XA] (explaining why old TV programs on streaming

services are missing their original accompanying music).

255

Id.

256

Id. (describing how sync rights issues have delayed or limited the

introduction of old television programs onto streaming outlets).

257

Id.

258

Nelson, supra note 18.

259

Id.

260

17 U.S.C. § 504(c).

261

Id. (stipulating that for non-willful acts of infringement, the copyright owner

shall receive $750-$30,000, and for willful acts, up to $150,000).

262

Second Amended Complaint, Downtown Music Publ’g LLC v. Peloton

Interactive, Inc., 19-cv-02426, 2019 WL 8621796, at ¶ 1 (S.D.N.Y. Sept. 27, 2019).

The case later settled in February 2020. Bill Donahue, Peloton Ends Copyright War

with Music Publishers, LAW360 (Feb. 27, 2020, 10:55 AM),

https://www.law360.com/articles/1248063 [https://perma.cc/C94N-SVHM].

263

Seale, supra note 5.

264

Id.; Edward Lee, Warming Up to User-Generated Content, 2008 U. ILL. L.

REV. 1512, 1519 (2008) (“All of the major labels have struck partnership deals with

YouTube, some even allowing the synchronization of recordings from the label’s

collection into user-generated videos.”).

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license agreements.

265

While such high-level arrangements can streamline

creation, they only provide access to some works and only on select

(generally, well-funded) platforms.

266

Significant sync obstacles remain

for prospective creators.

To address these obstacles, some commentators have suggested

strategies for limiting the reach of sync rights.

267

For example, attorneys

have proposed that consumers self-sync music in workout classes.

268

Others have recommended that Congress set up a mechanical licensing

collective for administering sync licenses.

269

Meanwhile, others still have

suggested utilizing the existing defense of fair use.

270

But these suggestions are limited in the assistance they provide. Self-

synching music provides an end run around sync rights for purposes such

as fitness classes, but not other novel uses such as documentaries or online,

downloadable video recordings of radio shows.

271

A mechanical licensing

collective that would cover sync licenses may be a promising dream, but

at present, that is all it is; it would need to be established by Congress. Fair

use is potentially the most promising of these three suggested solutions.

The synchronization of music as background in a film can, on occasion,

qualify as fair use.

272

For example, in Lennon v. Premise Media Corp., the

U.S. District Court for the Southern District of New York found that a

movie studio’s use of only fifteen seconds and ten words from John

265

Blistein, supra note 233. Twitch did reach an agreement with the National

Music Publishers’ Association (“NMPA”) in September 2021, but that agreement did

not establish a license for Twitch users, but instead created a new reporting process

for infringing content. NMPA and Twitch Announce Agreement, NMPA (Sept. 21,

2021), https://www.nmpa.org/nmpa-and-twitch-announce-agreement

[https://perma.cc/ZTB4-RH5R]. Before the agreement, music publishers submitted

thousands of DMCA complaints to Twitch over violations of music copyrights. See

Timothy Geigner, Twitch Manages to Get Out Some ‘Disappointment’ With Music

Industry Over Latest Round of DMCA Claims, TECHDIRT (June 3, 2021, 8:08 PM),

https://www.techdirt.com/articles/20210603/11085146924/twitch-manages-to-get-

out-some-disappointment-with-music-industry-over-latest-round-dmca-claims.shtml

[https://perma.cc/CN9L-XRW7].

266

Campbell, supra note 239.

267

Id.

268

See, e.g., id.

269

See, e.g., id.; DeLisa, supra note 24, at 1301 (arguing in favor of a

compulsory sync license, at least for user-generated content platforms).

270

See, e.g., Storch, Morrison, & Bernard, supra note 20, at 5 (“Use of short

sound clips alongside images in a talk on copyright or a lecture on music and art at a

scholarly society would be classic examples of fair use, and subject to powerful fair

use arguments.”).

271

See Campbell, supra note 239 (noting that Peloton could allow users to self-

sync their playlists, but not addressing this option (or rather, the lack thereof) in other

contexts).

272

Lee, supra note 264, at 1528, 1530 (“Even the synchronization of music as

background in a film sometimes is fair use.”).

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Lennon’s song “Imagine” was intended to criticize the song and its stance

on religion, and thus was transformative and a fair use.

273

However, fair

use is very fact-specific and can be difficult to predict accurately due to its

ex post facto nature.

274

In addition, few cases have been decided on sync

rights in general,

275

let alone on fair use and sync rights together. No cases

to date have directly decided whether a sync license is unnecessary

because the use is fair.

276

This makes fair use a potential, but largely

undefined and uncertain path forward.

These shortcomings leave broad sync rights largely intact. The

uncertainty of whether sync rights apply to these new content forms and

the difficulties in licensing for them jeopardize their viability. Sync rights

were defined for the twentieth century world of film and television. While

academic and judicial commentary on sync rights has been lacking, further

analysis is critical to preserving streaming and other novel content forms

against the constraints of sync rights. Instead of contracting around them,

sync rights themselves must be reinterpreted against the background of

recent technological adaptations, following in the tradition of adapting

progressive rights.

VII. RE-CRAFTING A MODERN SYNC RIGHT TEST

New forms of audiovisual content follow a long line of innovations

in media and expressive arts. As with player pianos, cable TV, and

273

556 F. Supp. 2d 310, 324–27 (S.D.N.Y. 2008). However, this case just

discussed the broader musical work and sound recording rights rather than sync rights

specifically. Id.

274

See Michael P. Goodyear, Fair Use, the Internet Age, and Rulifying the

Blogosphere, 61 IDEA 1, 6, 13 (2020) (explaining how fair use decisions can be

difficult to predict and can even be contradictory due to their ex post, compared to ex

ante, nature).

275

See supra Part V.

276

See, e.g., Lee v. Karaoke, 18-cv-8633-KM-SCM, 2019 WL 2537932, at *8

n.9 (D.N.J. June 19, 2019) (“The moving defendants’ motion only addresses public

performance. I confine my analysis to that aspect, and do not independently address

synchronization.”); Lee v. Karaoke City, No. 18 CIV. 3895 (PAE), 2020 WL 5105176,

at *5 n.3 (S.D.N.Y Aug. 31, 2020) (Aug. 31, 2020) (“Defendants also contend that

Lee lacks standing because only producers and distributors, and not owners, can sue

for infringement of ‘synch rights,’ namely the right to reproduce copyrighted lyrics on

a karaoke screen. But defendants did not raise this argument in their motion to dismiss

briefs. It is thus inappropriate for the Court to consider it here.”) (internal citations

omitted); Threshold Media Corp. v. Relativity Media, LLC, No. CV10-

09218DMGAJWX, 2013 WL 12331550, at *13 (C.D. Cal. Mar. 19, 2013) (discussing

the synchronization license market in determining whether a use was fair, but only for

the purpose of determining whether the use usurped the existing market for the

copyrighted sound recording).

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photocopiers,

277

these novel technologies raise important questions and

concerns about the breadth and limitations of extant copyright law.

Audiovisual works have expanded far beyond the movies and television

shows for which sync rights were originally licensed.

278

By reinvigorating

the “timed-relation” prong of the sync rights test, courts can achieve the

goal of copyright: a greater balance between rightsholders’ exclusive

rights and public access to musical works and sound recordings.

Historically, sync rights were implicated by film and television, and

the courts referred to the rights as such.

279

As explained above in Part V,

until the late 1990s, sync rights cases only involved these traditional

audiovisual works.

280

But even as late as 2013, the Southern District of

New York still explained that sync rights refer to the right “to authorize

the use of a song in a movie or commercial soundtrack.”

281

In addition to the focus on film and television for sync rights, courts

have also primarily focused on whether the use of music is contained in an

audiovisual work. For example, in Agee, the court found that Agee had

created an audiovisual work by playing a sound recording while a video

of two burglars appeared on the screen.

282

The karaoke cases also grappled

with this question.

283

In ABKCO, the Second Circuit held that karaoke

machines were audiovisual works because they consisted “‘of a series of

related images’ – the lyrics – ‘together with accompanying sounds’ – the

music.”

284

The Ninth Circuit agreed in Leadsinger,

285

but in EMI the

District of Utah held that karaoke machines were only visual works rather

than audiovisual works.

286

This focus on what qualifies as an audiovisual

277

See supra Part III.

278

See supra Part V.

279

Broad. Music, Inc. v. CBS, Inc., 441 U.S. 1, 33 n.23 (1979) (Stevens, J.,

dissenting) (“The ‘synch’ right is the right to record a copyrighted song in

synchronization with the film or videotape, and is obtained separately from the right

to perform the music.”); Buffalo Broad. Co. v. ASCAP, 744 F.2d 917, 920 (2d Cir.

1984) (describing the synch right as “the right to reproduce the music onto the

soundtrack of a film or a videotape in synchronization with the action”).

280

See supra notes 174–95 and accompanying text.

281

Beastie Boys v. Monster Energy Co., 983 F. Supp. 2d 338, 347 (S.D.N.Y.

2013).

282

Agee v. Paramount Commc’ns, Inc., 59 F.3d 317, 319 (2d Cir. 1995).

283

ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 65 (2d Cir. 1996)

(quoting 17 U.S.C. § 101); EMI Ent. World, Inc. v. Priddis Music, Inc., 505 F. Supp.

2d 1217, 1223 (D. Utah 2007); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522,

528 n.2 (9th Cir. 2008).

284

See ABKCO, 96 F.3d at 65 (quoting 17 U.S.C. § 101).

285

See EMI, 505 F. Supp. 2d at 1223.

286

See Leadsinger, 512 F.3d at 528.

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work may, in part, stem from the fact that audiovisual works are defined

in the Copyright Act.

287

Yet, case law has developed what is in effect a two-part test, the

second part of which (timed-relation) has been largely ignored by

courts.

288

Courts have included this aspect of synchronization in their

definition of sync rights.

289

In ABKCO, the Second Circuit recognized that

“[a] synchronization license is required if a copyrighted musical

composition is to be used in ‘timed-relation’ or synchronization with an

audiovisual work.”

290

Other courts around the United States have

followed suit. In EMI, the District of Utah cited to ABKCO for this

definition of when a sync license is required.

291

In Leadsinger, the Ninth

Circuit also quoted language from ABKCO.

292

The District of

Massachusetts similarly determined that “synch rights are an additional

right that a user must acquire when it seeks not only to perform the

protected work but also to use it in timed-relation with an audiovisual

work.”

293

These definitions, in effect, create a two-step test: to necessitate a

sync license, compared to just a reproduction license, the use (1) must be

a reproduction in an audiovisual work and (2) must play the music in

timed-relation to moving images.

294

While courts have liberally quoted

the language from ABKCO, however, they have rarely considered how this

language mentions two elements. One of the rare exceptions is the EMI

court.

295

It recognized that the karaoke machine at issue in the case played

music in timed-relation with the projected lyrics.

296

This is logical, as the

lyrics were intended to display exactly in line with where they appeared in

the music.

297

The court determined, however, that although the images

were being shown in timed-relation, the karaoke machine did not

constitute an audiovisual work.

298

Since the machine was not an

287

Audiovisual works are “works that consist of a series of related images which

are intrinsically intended to be shown by the use of machines, or devices such as

projectors, viewers, or electronic equipment, together with accompanying sounds, if

any.” 17 U.S.C. § 101.

288

See ABKCO, 96 F.3d at 62 n.4.

289

Id.

290

Id.

291

Leadsinger, 512 F.3d at 527.

292

EMI Ent. World, Inc. v. Priddis Music, Inc., 505 F. Supp. 2d 1217, 1195 (D.

Utah 2007).

293

Steele v. Turner Broad. Sys., Inc., 646 F. Supp. 2d 185, 193 (D. Mass. 2009).

294

See ABKCO, 96 F.3d at 62 n.4

295

EMI, 505 F. Supp. 2d at 1222.

296

Id. at 1219.

297

Id.

298

Id. at 1224.

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audiovisual work – thus failing the first prong of the sync rights test – it

failed to implicate sync rights.

299

While audiovisual works are defined by statute and have been

discussed in detail by courts,

300

the meaning of timed-relation is much

murkier at present. There are two possible definitions. Timed-relation

could refer to music played at the same time as visual images are present.

But this meaning would at least partially overlap with the meaning given

to audiovisual works under the Copyright Act: “works that consist of a

series of related images which are intrinsically intended to be shown . . .

together with accompanying sounds.”

301

Such a reading of timed-relation

would run against a central cannon of legal interpretation, the rule against

surplusage, under which, if possible, every word and provision of a statute

is to be given independent meaning.

302

The more likely reading, therefore, is that timed-relation adds some

additional element to an audiovisual work. Renowned copyright

practitioners and scholars Melville and David Nimmer have asked, “[d]oes

a synchronization require timing with visual content?”

303

The answer is

yes, timed-relation should include an intent element. Timed-relation can

better be defined as where the creator of the audiovisual work specifically

lines up separate images to an accompanying music file.

Some have pushed back against this intent-based reading. For

example, some observers have interpreted timed-relation to refer broadly

to “sound recordings and audiovisual components presented to an

audience of viewer concurrently and in unison.”

304

At least according to

one court, any violation of the copyright owner’s reproduction right

deserves the label “synchronization.”

305

In Freeplay Music, Inc. v. Cox

Radio, Inc., the U.S. District Court for the Southern District of New York

concluded that synchronization does not require “including a musical

299

Id. at 1223.

300

17 U.S.C. § 101 (2018); see, e.g., Leadsinger, Inc. v. BMG Music Publ’g,

512 F.3d 522, 527–29 (9th Cir. 2008) (holding that a karaoke device falls within the

definition of an audiovisual work); EMI, 505 F. Supp. at 1222–23 (discussing whether

a karaoke machine constitutes an audiovisual work).

301

17 U.S.C. § 101.

302

United States v. Alaska, 521 U.S. 1, 59 (1997) (“The Court will avoid an

interpretation of a statute that ‘renders some words altogether redundant.’”) (quoting

Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995)); Freytag v. Commissioner, 501

U.S. 868, 877 (1991) (“Statutory interpretations that ‘render superfluous other

provisions in the same enactment’ are strongly disfavored.”); see also ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW app. B, at 440 (2012) (“[I]f possible,

every word and every provision is to be given effect.”).

303

MELVILLE B. NIMMER & DAVID NIMMER, 2 NIMMER ON COPYRIGHT §

8.06[A][5] n.47 (2021).

304

Skopicki, supra note 24, at 16 n.92.

305

Freeplay Music, Inc. v. Cox Radio, Inc., 404 F. Supp. 2d 548, 551, 552 n.2

(S.D.N.Y. 2005).

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134 MISSOURI LAW REVIEW [Vol. 87

work on the soundtrack of an audiovisual work, ‘synchronized’ to the

action on the video recording,” because synchronization is really just “the

right to reproduce the music onto the soundtrack of a film or a videotape

in synchronization with the action.”

306

But this very broad definition has

only been followed in one other case, an unpublished and noncitable

California state court opinion.

307

The majority of courts have instead

interpreted the synchronization right as parallel to the reproduction right,

noting that reproduction licenses are distinct from sync licenses.

308

broad reading of sync rights such as that in Freeplay Music also reads out

any meaning in the term timed-relation, improperly conflating the terms

audiovisual work and timed-relation.

The two-part test with a robust timed-relation definition frees up

creative opportunities. For example, under this test, a streamed,

downloadable fitness class involving bodyweight and free weight

exercises would likely not necessitate a sync license. The video of the

class would qualify as an audiovisual work, as it has both images and

music. But it would not meet the definition for timed-relation. The trainer

may have selected the songs he or she wanted to play to galvanize his or

her viewers, but it is unlikely that he or she coordinated exact movements

during each of the notes in the songs. Instead of a sync license, a

reproduction license would still be required, which could be easier to

acquire than a sync license, especially for mechanical reproductions

through a Section 115 license or a license from the Harry Fox Agency.

On the other hand, works that depend on timed-relation between

visuals and music would be captured by this definition of timed-relation.

For example, fitness classes such as Zumba or SoulCycle depend in large

part on the coordination of movements to music. Zumba involves dancing

to Latin and World music, following an instructor to perform specific

moves in time with the music.

309

SoulCycle also requires attendees to

match the speed of the music’s beat and to follow the instructor’s

306

Id.

307

Steiner v. CBS Broad., No. B190839, 2007 WL 2178542, at *4 (Cal. Ct. App.

July 31, 2007).

308

See, e.g., EMI Ent. World, Inc. v. Priddis Music, Inc., 505 F. Supp. 2d 1217,

1219 (D. Utah 2007) (noting that the defendant already paid for reproduction licenses

but at issue was whether they also had to pay for sync licenses); Leadsinger, Inc. v.

BMG Music Publ’g, 512 F.3d 522, 529 (9th Cir. 2008) (holding that in addition to its

§ 115 compulsory reproduction license, Leadsinger also had to secure sync licenses).

309

See Classes, ZUMBA, https://www.zumba.com/en-US/pages/class

[https://perma.cc/6X2J-FV9E] (last visited June 1, 2021) (“We take the ‘work’ out of

workout, by mixing low-intensity and high-intensity moves for an interval-style,

calorie-burning dance fitness party. Once the Latin and World rhythms take over,

you’ll see why Zumba® Fitness classes are often called exercise in disguise.”).

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choreography.

310

This involves both a visual of the instructor and on-

screen instructions for how fast to bike. Both exercise classes would seem

to fit squarely inside this definition of timed-relation.

In a very different setting, a video stream of an in-studio radio show

would not meet the timed-relation definition. A streamed, downloadable

video of a radio show would be fixed and qualify as an audiovisual work.

However, the music playing on the radio show is not lined up beat-by-beat

with any images on the video. Therefore, while the radio station hosts are

reproducing a song, their actions should not implicate a sync right as

compared to a reproduction one.

Another example of a use that would be permissible under this timed-

relation definition is incidental or background use of music. Documentary

filmmakers or the press, for example, often film live scenes.

311

These

scenes may involve background music playing during an interview in a

coffee shop or while filming an interaction on the street.

312

The director

or filmmaker likely did not choose to have these exact songs playing in the

background; instead, they were merely playing by chance. This sort of

recorded scene would, at present, necessitate a sync license, but, under the

proposed timed-relation definition, it would not. Similarly, in response to

police officers playing copyrighted music to trigger takedowns,

313

a sync

license would not be required under this definition of timed-relation.

This robust timed-relation definition achieves a better balance

between rights holders and public access. At present, sync rights are

required for a wide array of digital content. The crux of courts’ analysis

on sync rights has been on whether the work constitutes an audiovisual

work.

314

Yet, despite the synchronization label, users do not always time

310

Who We Are, SOULCYCLE, https://www.soul-cycle.com/our-story

[https://perma.cc/4BFF-4D5M] (last visited June 1, 2021) (“Set in a dark candlelit

room to high-energy music, our riders move in unison as a pack to the beat and follow

the signature choreography of our instructors.”).

311

See Peter Biesterfeld, Unscripted Storytelling: Finding the Story in

Documentary, VIDEOMAKER, https://www.videomaker.com/how-

to/documentary/unscripted-storytelling-finding-the-story-in-documentary

[https://perma.cc/YVF9-W6VD] (last visited June 1, 2021) (“Thus, independent non-

fiction stories are typically shot without knowing what comes next, let alone how the

film will end.”).

312

See KEITH AOKI, JAMES BOYLE & JENNIFER JENKINS, TALES FROM THE PUBLIC

DOMAIN: BOUND BY LAW? 7–9 (2006) (for several example scenarios of when a

filmmaker may want to capture live music that they themselves did not choose to

play).

313

See supra notes 24241–44 and accompanying text.

314

See, e.g., Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 527–29 (9th

Cir. 2008) (holding a “karaoke device” to be an audiovisual work); Beastie Boys v.

Monster Energy Co., 983 F. Supp. 2d 338, 340 (S.D.N.Y. 2013) (holding that an online

promotional video constituted an audiovisual work); Romantics v. Activision Publ’g,

Inc., 574 F. Supp. 2d 758, 766 (E.D. Mich. 2008) (holding that a videogame was an

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136 MISSOURI LAW REVIEW [Vol. 87

the visual images to the licensed music.

315

Emphasizing and reimagining

the timed-relation requirement adds back this crucial element of intent,

which has not been considered in evaluating whether novel forms of media

implicate sync rights, as compared to reproduction rights. This would

allow content creators to forego complicated and prohibitive sync

licensing and permit those works that innocently contain background

music and those that sync rights were not originally intended to cover.

This intent-driven definition of timed-relation fulfills the original

purpose of copyright, as it has been achieved by courts and legislatures for

decades when confronting new technologies. Emphasizing the second

element of the sync rights test does not add a new test that would

imbalance copyright; instead, it brings to light an element that has long

remained in the shadows of music copyright jurisprudence. This element

is important for guarding against an overexpansion of sync rights beyond

the type of uses – such as television shows and movies – which were

originally intended to be covered by synchronization. Like the courts and

Congresses of prior decades, reinvigorating this rule strikes a balance

between preserving the sync rights given to copyright owners and ensuring

public access to more works, the overarching goal of copyright.

VIII. CONCLUSION

With the proliferation of new media that could implicate sync rights,

the time is ripe for courts to acknowledge and provide guidance on the

two-part sync rights test. Music copyright is mired in a web of overlapping

rights and licensing structures, and sync rights are perhaps the most

obfuscated. Even fairly simple new media that possibly implicate sync

rights, such as karaoke machines, have led to dissimilar outcomes in

different courts. The COVID-19 pandemic has led to more events and

entertainment moving online in saved and downloadable video format,

posing additional licensing obligations for a myriad of industries.

The solution can be achieved by looking back and applying the

complete rule that courts intended. While courts have largely focused on

whether a use creates an audiovisual work, that is only one part of the test.

By analyzing the second part of sync rights – timed-relation – courts can

follow in the historical approach of achieving the goal of balance in

fair use, that can be and should remain important limitations on the

overextension of copyright. It also does not change the other exclusive

rights of the musical work or sound recording copyright owner, who can

audiovisual work); EMI Ent. World, Inc. v. Priddis Music, Inc., 505 F. Supp. 2d 1217,

1225 (D. Utah 2007) (holding that a karaoke machine was not an audiovisual work).

315

Yu, supra note 161, at 392.

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continue to enforce infringements of their broader reproduction right.

Understanding and utilizing this long misunderstood test to the full

presents a positive advancement in interpreting and protecting both music

* * *

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