A Karaoke Legal Hack

Glen earlier offered an able analysis of how copyrights affect karaoke. His summary of U.S. law explained why we have to sing along to studio recreations of popular melodies. Although I don't disagree with Glen's description of the problem, I offer a different solution than he did. He proposed amending the Copyright Act. I propose a way that karaoke fans might win access to their favorite tunes without waiting for lawmakers to act.

As Glen observed, pop songs typically comprise two distinct sorts of copyrighted expression: a musical work (the composition and lyrics) and a sound recording of that that musical work. Those two types of works get different protections under U.S. law. The former get protection under a liability-like rule, under which anyone who pays a statutory rate can copy a musical work. The latter, in contrast, gets protection under a property-like rule; you have to get the permission of the copyright owner before you copy a sound recording. I summarize those and other distinctions in my Music Copyright Table.

U.S. copyright law treats musical works and sound recordings differently in another way, too. The former gets protected from a wide variety of unauthorized uses-reproductions, the creation of derivative works, the public distribution of copies, or public performances. Rights in latter, in contrast, cover only unauthorized reproduction, the creation of derivative works, and the public distribution of copies. One who owns the copyright in a sound recording cannot, in other words, object to its public performance.

That description of the law suggests a way that Glen and fellow fans of karaoke might win access to the original music accompanying their favorite songs. Suppose that a karaoke machine contained legal copies of various pop tunes and technology capable of playing those tunes with the vocals dampened or muted. Karaoke singers would get the original tunes they crave while—arguably—the owners of the sound recording rights in those tunes would have no right to object. (The owners of the rights to the music and lyrics would of course have grounds to demand a license for the public performance of their works, but that's already the case.)

Why the "arguably" caveat? Because the owner of a sound recording retains the right to bar unauthorized derivative works. That the sort of lyrics-muting karaoke machine I've described would crank out music on the fly would not alone offer a defense; as William Patry recently explained, derivative works need not be fixed. Those who sell or use such karaoke machines might, however, take shelter in the claim that the muting process does not result in a "work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality." 17 U.S.C. § 114(b).

Owners of the sound recordings thus used might object that the lyrics-muting karaoke machine does, in fact, alter the "quality" of their works. But that word plainly does not bar anyone from altering the way they perform a sound recording by, say, upping the bass or using cheap speakers. The karaoke machine I've described merely takes that process one more step. Furthermore, I'd argue that § 114(b) impliedly limits the owners of sound recordings (as opposed to the owners of other sorts of copyrighted works) to barring only fixed derivative works. That section says, "The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 [the section pertaining to derivative works] is limited to the right to prepare a derivative work . . . ." (emphasis added). Do you "prepare" a work when you merely perform it? Surely not.