Jewishmusic.com sent me an email the other day touting the release of "Jewish Karaoke and Band Music" CDs. From the pictures on the CDs, they contain the type of music that would turn any bar/bas mitzvah into a relic of the 1950s, fond or not depending on one's nostalgia level. There have been two court of appeals opinions on copyright and karaoke in 6 months, a number that bears no relationship to the complexity of the issues raised. The recent, and the first appellate opinion on copyright in the new year is Leadsinger, Inc. v. BMG Music Publishing, 2008 WL 36630 (9th Cir. Jan. 2, 2008), from the Ninth Circuit. The earlier opinion is Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007). (See also ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60 (2d Cir. 1996)).
Leadsinger was a declaratory judgment action, and had a few inconsequential twists, like printing out the lyrics and not just displaying them alongside a performance of the music. The courts have agreed with copyright owners that karaoke manufacturers require a sync right and are not entitled to the Section 115 compulsory license, the difference being that a sync license is issued at a market rate. The sole wild hair seems to be EMI Entertainment World, Inc.v. Priddis Music, Inc., 505 F. Supp.2d 1217 (D. Utah 2007).
It is not the result in the Leadsinger opinion that interests me, but rather some weird language in the opinion. For example, “As the definition of phonorecords indicates, audiovisual works are not phonorecords. See id. §101. Thus, §115’s compulsory licensing scheme does not apply to audiovisual works.” (page 7). True enough that audiovisual works aren’t subject to the Section 115 compulsory license, but not because they are not phonorecords: no works of authorship are phonorecords. Phonorecords are the physical embodiments of works, not the works themselves. Only nondramatic musical works are subject to the Section 115 compulsory license, and audiovisual works aren’t nondramatic musical works. (Audiovisual works are, by the way, embodied in copies, not phonorecords; the definition of phonorecords explicitly excludes the embodiment of audiovisual works).
Can nondramatic works that contain lyrics be subject to the Section 115 compulsory license? Yes. While there is no definition of musical work in Section 101, Section 102(a) protects “musical works, including any accompanying words.” The Ninth Circuit though, for reasons that escape me, wrote that “Song lyrics are copyrightable as a literary work and, therefore, enjoy separate protection under the Copyright Act.” (p. 8). Nu?
Then, the court really goes off the deep end: “That the definition of literary works includes the phrase ‘other than audiovisual works,’ confirms that a literary work may constitute an audiovisual work if it also fulfills the definition of an audiovisual work.” (p. 10). Huh? Am I alone in thinking this makes no sense?