Synchronizing Copyright and Technology: A New Paradigm for Sync Rights.

• Author: Goodyear, Michael P.

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 I. INTRODUCTION

The novel coronavirus disease 2019 ("COVID-19") pandemic forced the world to go virtual. (1) As offices laid empty and entertainment venues remained shuttered, (2) 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, (3) leading to a surge in streaming. (4) 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, (5) fitness enthusiasts to their instructors, (6) and trivia fanatics to their pub trivia. (7) In just the first two months of the COVID-19 quarantine in the United States, the streaming content sector grew by forty-five percent. (8) By January 2021, 645 billion hours were watched per month on Twitch, the largest streaming platform. (9) At the core of these streaming industries is music. (10)

In the physical world, musicians, fitness instructors, and others frequently had to contend with music copyright. (11) 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. (12) 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. (13)

The purpose of synchronization in media creation is to enhance an audiovisual production by using underlying music to create a specific effect or mood. (14) Synchronization can be a significant addition to a work, adding a dynamic layer to an artist's story. (15) Courts originally interpreted sync rights to apply to movies, television shows, and commercials, which specifically use certain songs at particular moments. (16) More recent jurisprudence has not strayed far from these originally implicated media. (17) Yet more novel forms of media, such as on-demand or interactive streaming or recorded classes or concerts, also seem to implicate the sync right as they qualify as audiovisual works. (18) As the only wholly unregulated part of music copyright, (19) 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. (20)

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. (21) Extant 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. (22) 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. (23) 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. (24) More practice-focused articles provide analyses of the existing law, (25) 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 copyright, first describing the overarching musical work and sound recording rights, and then addressing sync rights specifically. Part V then analyzes existing sync rights case law to provide an authoritative overview 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.

2. THE PURPOSE OF COPYRIGHT

   From the start, copyright has had to balance public access to works with protecting the rights of copyright owners. (26) 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." (27) By giving creators a package of exclusive rights, "they are given an incentive to create." (28) 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. (29)

   While these incentives are an important part of copyright law, the overarching purpose of copyright is to promote the spread of knowledge and technology. (30) Renowned authority on copyright law Melville Nimmer concluded that the "primary purpose of copyright [i]s not to reward the author" but promote creation. (31) The Supreme Court has similarly concluded that promoting access is the ultimate goal of copyright. (32) If the purpose of copyright is to encourage learning (33) and progress, (34) 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." (35) Courts and Congress have strived to strike a balance between the two interconnected but often competing interests of protection and access. (36) Particularly with new technological advancements, it is important to periodically reevaluate extant copyright law to determine if this balance is met.

3. ADAPTABILITY OF COPYRIGHT LAW TO TECHNOLOGY

   Copyright law has always grown and adapted to technological change. This adaptation is exemplified by how Congress gave more types of works copyright protection over time. (37) The original Copyright Act of 1790 only protected maps, charts, and books. (38) But over the course of the nineteenth century, prints (1802), (39) music (1831), (40) dramatic compositions (1856), (41) photographs (1865), (42) and works of art, including paintings, drawings, statues, and models (1870) were included within the ambit of copyright. (43) While the inclusion of photographs showed how copyright could be expanded to include novel types of works, this trend accelerated in the twentieth century to include new technological creations. (44) Motion pictures received independent copyright protection in 1912. (45) In 1972, the Sound Recordings Act granted federal copyright protection to sound recordings. (46) The Copyright Act was amended in 1980 to protect computer programs. (47) Finally, in 1990, copyright was extended to architectural works. (48)

   But while the ambit of copyright has continued to grow, so have modifications to the rights of copyright holders in response to technological development. (49) Significant adaptations to copyright took place in response to the advent of the player piano, television program retransmission, photocopying, home video recording...