Notes & Comment
Vol. 2008, No. 1
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Copyright Law
A Sour Note for Karaoke Fans?
As if life weren’t already complicated enough, it now appears that aficionados of karaoke cannot safely warble their favorite ballads unless their karaoke machine is fully licensed under the Copyright Act. In Leadsinger, Inc. v. BMG Music Publishing, et al., 512 F.3d 522 (9th Cir. 2008), the U.S. Court of Appeals in San Francisco recently held that a karaoke manufacturer must have multiple copyright licenses and pay multiple royalties to a music publisher before its customers may perform their unique brand of magic. What’s next -- singing in the shower?
The main copyright issue in Leadsinger was technical -- how is a “phonorecord” under the Copyright Act different from an “audiovisual work”? Did the karaoke manufacturer need more than a standard music license to sell a device that also displayed lyrics and synchronized music with the words? Beyond that, however, the case is instructive about the breath and scope of copyright law. It shows, in the simple example of karaoke, how copyright law divides one creative pie into many slices and gives each piece of the creative pie its own intellectual property domain.
The Facts
Leadsinger, Inc. makes a karaoke microphone and had a license from BMG Music Publishing to use BMG’s music with its device. Leadsinger’s karaoke device also allowed customers to follow (OK, bellow) lyrics to those songs. This was accomplished by plugging the device into a television, where the lyrics were displayed. The device further synchronized music and lyrics in real-time to better enable patrons to -- ahem -- perform. In addition to Leadsinger’s music license from BMG, the publisher also demanded a “lyric reprint” fee (for printed versions of the lyrics that were sold along with the device) and a “synchronization fee” with respect to that function of the device which coordinated the music and lyrics.
Leadsinger’s karaoke device was controlled by a microchip that embedded both the music and the lyrics, as well, apparently, as the software that synchronized them. Because it already had a music license from BMG, Leadsinger objected to also paying a lyric reprint fee and a synchronization fee to BMG, and it sued BMG in federal district court seeking a declaration that the music license with BMG was sufficient for all purposes. The trial court rejected Leadsinger’s argument and the Court of Appeal affirmed. Leadsinger’s karaoke device, the appellate court held, required additional copyright licenses for printed lyrics and for synchronization of the music with the lyrics.
Phonorecord or Audiovisual Work? Or Both?
The Court of Appeal distinguished, as copyright law clearly does, between a “phonorecord” (such as an LP or a CD), and an “audiovisual work” (such as a movie or recorded stage musical). These distinct types of “works” are each separately protected under copyright law. Given the definitions that applied to each work, Leadsinger’s karaoke device was deemed to be an “audiovisual work” and not a “phonorecord.” Its music license from BMG did not apply to the audiovisual aspects of the device -- the displaying of lyrics and the synchronization of music and lyrics.
[Comment: the Court might have been more accurate in its analysis had it described the intended “audiovisual” output of the karaoke device as the protected work. Instead, it insisted several times that the karaoke “device” itself was the protected audiovisual work. This conclusion seems not supported by the statutory definition of audiovisual work, which reads a “series of related images…intended to be shown by the use of machines…together with accompanying sounds….” The copyrighted “work”, therefore, would seem to be creative content intended to be displayed “audio-visually”, not the device used to project that creative content. In this sense, a karaoke device is like a TV, a VCR or a DVD player -- a device which enables creative content to be audio-visually displayed, but which is not itself the protected “audiovisual work.” The Court of Appeals did not apparently appreciate that distinction.]
In any event, because the Court concluded that Leadsinger’s original license with BMG applied only to the music and not to the audiovisual elements, Leadsinger was required to obtain a synchronization license to display images of lyrics timed in relation to recorded music and, if it reprinted those lyrics on a piece of paper for distribution to customers, a reprint license as well.
Summary and Conclusion
Applying the Ninth Circuit’s view of this case, the creative pie analogy might dissect the copyright pieces at issue in this particular karaoke device as follows: (1) the music played by the device was protected by law and required a copyright license, (2) synchronizing the music and the lyrics also was protected and required another copyright license, and (3) distributing paper reprints of the music lyrics required a third copyright license.
Using another food analogy, copyright analysis can be like peeling away layers of an onion. There are many levels and lots of circles. That daunting task is also like listening to most karaoke singers -- both can bring tears to your eyes.
© Matthew Joseph 2008. Law Offices of Matthew Joseph, San Mateo, California, practices in the areas of intellectual property licensing, commercial real estate leasing, corporate formations and business transactions. No legal advice is intended by the information provided herein and recipients should independently consult counsel before taking any action related to this subject matter.