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, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. Leader, Inc. v. BMG Music Publ’g, 512 F.3d 522, 526-527. (9th Cir. Cal. 2008).The Copyright Act defines literary works as “works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. Id. at 527. Though it is not explicit in the Copyright Act, courts have recognized a copyright holder’s right to control the synchronization of musical compositions with the content of audiovisual works and have required parties to obtain synchronization licenses from copyright holders. See Maljack Prods., Inc. v. Goodtimes Home Video Corp., 81 F.3d 881, 884-85 (9th Cir. 1996)
A synch right is the right to record a copyrighted song in synchronization with a film or videotape, and is obtained separately from the right to perform the music. Steele v. Turner Broad. Sys., 646 F. Supp 2d 185, 193 (D.Mass. 2009). The license is required if a copyrighted musical composition is to be used in timed-relation or synchronization with an audiovisual work. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §24.02(f) (1995). Thus, 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. See ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 62 n.4 (2d Cir. 1996).
Though it is not explicit in the Copyright Act, courts have recognized a copyright holder’s right to control the synchronization of musical compositions with the content of audiovisual works and have required parties to obtain synchronization licenses from copyright holders. Leadsinger, 512 F.3d at 527. This right is derived from the exclusive right of a copyright owner, under 17 U.S.C. §106(1), to reproduce his or her work. Agee v. Paramount Communications, Inc., 853 F. Supp. 778, 786 (S.D.N.Y. 1994). Therefore, the primary justification for a synch license is that incorporating a copyrighted sound recording into a visual medium without such a license would infringe the copyright owner’s exclusive right of reproduction.
With regard to mechanical license that concerns a license to reproduce and distribute copyrighted work, a synch license is proper to publicly perform the work in synchronization with a music video. The synch license is usually acquired through the publisher’s explicit permission. Posting on social media networks such as Facebook and Soundcloud will likely yield a similar result as in Youtube, where if Youtube receives a copyright infringement complaint from a publisher or an owner of a song, it may take down the video and give you a copyright strike.[i] After three strikes, the Youtube account gets deleted.[ii] Consequently, posting unlicensed cover songs not only is grounds for an account deletion but also a possibility of a lawsuit for copyright infringement.
Youtube has a program called Content ID where every video uploaded to YouTube is scanned against a database of files that have been submitted to Youtube by content owners.[iii] Through this Content ID’s technology allows Youtube to identify works in an original sound recording, or in a cover version (by identifying the underlying melody of a song), using information provided to Youtube by the publishers.[iv] When Content ID identifies a match between a video and a file in this database, it applies the policy chosen by the content owner that it has established under the Content ID program.[v] At the copyright owner’s sole discretion, Youtube may monetize the video with advertisements rather than take it down, with the copyright owner getting a share of the profits, track the success of the video or may block the video entirely. Thus, when a video is found to be in copyright violation, it is up to the copyright owner as to whether the video will be removed, monetized or tracked.
Youtube has a blanket synchronization licenses with a settlement with the National Music Publishers Association, which the agreement cover thousands of publishers to opt-in to a program that lets them take a cut from a $4 million advance pool and up to 50 percent of the advertising revenue from any cover song they own the rights to.[vi] The major downfall with the blanket “synch” licenses is that Youtube does not publicize which publishers have signed on to their program.[vii] Therefore, to determine whether a cover song is copyrighted, a Youtube user can upload the song and wait to see if it is detected by Content ID, triggering copyright notices and the potential for strikes against the Youtube account.[viii] If an uploaded video survives the initial check, the synchronization license allows for a share in the revenue ensuring opportunities for both the cover artist and the original songwriters and publishers, illustrating the potential mutual benefit of keeping cover songs as a part of evolving music culture.[ix]
[i] Youtube. Support: Copyright Strike Basics. Feb. 2014
[iii] Youtube. Content ID Dispute. Feb. 2014
[iv] Youtube Official Blog. Creating New Opportunities for Publishers and Songwriters. Aug. 2011.
[v] Youtube. How Content ID Works. Feb. 2014
[vi] Andy Baio, Criminal Creativity: Untangling Cover Song Licensing on Youtube, Wired 2, May 2012. Web.
[ix] Youtube Official Blog. Opportunities for Music Publishers and Songwriters, Jan. 2012.
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