COPYRIGHT
Music Publishing
Article:
By Tom Frederikse, Solicitor, Clintons.  

The US 9 th Circuit Court of Appeals has recognized the existence of a “sync right” under US copyright law and the need for a separate “sync licence” for the graphic display of lyrics on a karaoke device. In Leadsinger Inc v BMG Music Publishing et al [2007] No 06-55102, D.C. No. CV-04-08099-VAP (reported 2 January 2008), the Court dismissed Leadsinger’s request for a declaration that it had a right to visually display song lyrics without anything more than the compulsory mechanical licence.

Leadsinger had argued unsuccessfully in a lower court that the standard mechanical licence it already had to “make and distribute phonorecords” would also authorise display of lyrics in real time with the recordings. The US Appeal Court held that Leadsinger’s karaoke device (being “a series of related images with accompanying sound”) constituted an “audiovisual work” rather than a “phonorecord” and therefore was excluded from the US compulsory licensing scheme. As UK law does not contain such an express exclusion of “audiovisual works” from the definition of a “literary” copyright work, it is unlikely that this precise line of reasoning could be followed here, though it is of course possible that any court could follow the spirit of this decision. The US Court also held that Leadsinger’s display of lyrics was not covered by the “fair use” doctrine.

UK copyright law has plenty of restrictions on the “copying” of works but there is no prohibition on “synchronisation” (or any specific combination with images) under UK or US statutory law – though a US court has previously recognised a right to control the synchronisation of musical compositions with the content of audiovisual works and has even required US parties to obtain “synchronisation licences” from rightsholders. It is unclear whether a UK court could or would seek to invent a “synchronisation” right or legally-require any such “sync licence” in any circumstances.

Because it would be impractical to join music to film or images without making a “copy” of the music, it is clear that some sort of licence would be needed – but the legal argument in the UK would have to be based on the existing “mechanical” licence language rather than any sort of “sync licence” (and there may be an issue in some cases as to whether the writer/publisher or the relevant collection society controls this “mechanical” right). Presumably the concept of a “sync licence” was colloquially adopted in the UK from the US (or is simply a form of shorthand for the music and film industries) but, in any case, it does not explicitly exist in UK law.

This case highlights the apparent gulf between common industry practice and actual UK law and suggests that a clarification is needed (either from the government or a UK court) on the widely-presumed existence of a “sync right”. The case specifically throws into doubt any assumption in the US that a standard “mechanical” (or “sync”) licence covers all uses of lyrics in an audiovisual (i.e. online) delivery of music.

The full text of the judgment may be accessed via:http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6128717C16DB42D8882573C400597DC7/$file/0655102.pdf?openelement.

This article can be found at  http://www.clintons.co.uk/?news_id=38

© 2008 Tom Frederickse / Clintons LLP