Pixelated Poltergeists: Synchronization Rights and the Audiovisual Nature of “Dead Celebrity” Holograms

70 Am. U. L. Rev. F. 1 (2020).

* Senior Staff Member, American University Law Review, Volume 70; J.D. Candidate, May 2021, American University Washington College of Law; B.A., Government (International Politics) and Italian Studies, 2018, Wesleyan University. Many thanks to my editor Erin Downey, my faculty advisor Heather Ridenour, and the entire Law Review editorial team for the insightful feedback in preparing this piece for publication. I would also like to thank Walker for the unwavering support, my friends for the countless laughs, and my family for their unconditional love that carried me through this process.

After Tupac Shakur “rose from the dead” in the form of a hologram at the Coachella Valley Music and Arts Festival in 2012, hologram concerts have only increased in popularity. This Comment examines hologram performances and how they interact with the exclusive rights of reproduction granted to copyright holders of sound recordings. After introducing copyright law more generally, this Comment discusses the trouble courts have with defining the “audiovisual” requirement for synchronization rights. Ultimately, this Comment argues that to prevent infringement claims, synchronization licenses should be necessary for performances including hologram technology.

If you make a movie ‘bout my life, make it right /

Please don’t make no holograms, don’t wanna do it twice /

You wanna use my likeness, please approve it through my wife /

And if you get the license then you better use it right . . .¹

Introduction

Although it is an album about his marriage, Chance the Rapper’s self-released album “The Big Day” also emphasizes his uneasiness.² What “The Big Day” ultimately contemplates is the future of music, discussing new technology, brand development, and Chance’s fears and wishes.³ It also serves as Chance the Rapper’s personal manifesto on the ethics of a new craze in the music industry that has captivated some artists and terrified others.⁴ Critic reviews note the album’s introspection and its fascination with nostalgia in the face of modern technology in music.⁵ The particular technology in question, as reflected in “Sun Come Down,” quoted above, is the use of holograms to “revive” dead celebrities. As holograms, dead celebrities perform on stage as if they were living.⁶

The hologram craze began at the Coachella Valley Music and Arts Festival in 2012, when Tupac Shakur’s hologram performed with living artists Snoop Dogg and Dr. Dre, twelve years after Shakur’s death.⁷ Since then, several production companies have tried to organize post-mortem celebrity performances, including ones by Michael Jackson, Amy Winehouse, and even opera singer Maria Callas.⁸ Whitney Houston’s estate recently announced a hologram tour to begin in February 2020, aimed at giving fans “a feeling again of being in her presence.”⁹ But fans are already pointing out the moral and ethical issues in production companies and venues using a dead celebrity’s name and likeness for production companies and venues to gain capital.¹⁰ That said, using a dead celebrity’s image is not the sole problem modern hologram concerts have raised.

Hologram performances have raised many legal issues in patent,¹¹ contract,¹² and copyright¹³ law, as well as ethical¹⁴ and policy concerns.¹⁵ This Comment focuses on one of the issues that hologram performances raise affecting copyright protections. Specifically, this Comment argues that holograms are “audiovisual” works comparable to film, television, and video games for the purposes of copyright law protections under 17 U.S.C. § 114(b).

Section 114(b) protects the copyright holder’s interest in the exclusive right to reproductions of his or her sound recording, including the recording’s synchronization with audiovisual work.¹⁶ This Comment argues that when producers of concerts want to incorporate holograms,¹⁷ they must obtain synchronization licenses from the sound recording’s copyright holders. This Comment also analyzes past and emerging jurisprudence surrounding holograms as part of a statutory interpretation of Section 114(b) to encourage courts to expand the definition of audiovisual work beyond traditional formats. In comparing holograms’ novel technology to film and television, courts should consider holograms as audiovisual works under a synchronization license analysis.

Part I provides background information on emerging hologram technology and introduces copyright law. It analyzes copyright law covering sound recordings and outlines the importance of obtaining and litigating a synchronization license. Further, it indicates where the dispute lies in adapting synchronization licenses to new technology, like hologram performances. Part II analyzes the current jurisprudence on types of works that need corresponding synchronization licenses. It also proposes a framework for analyzing synchronization rights for holograms, likening the technology to film and television for the purposes of audiovisual analysis. This Comment concludes that venue and production companies must obtain synchronization licenses prior to incorporating sound recordings into hologram performances to withstand copyright challenges, specifically regarding reproduction rights,¹⁸ under Section 114(b).

I. Background

Copyright law is a broad field that protects creators in a variety of industries by imposing negative repercussions against copiers of creative work.¹⁹ It protects content creators from those attempting to copy their work for commercial gain and controls the dissemination of original information.²⁰ Copyright is a necessary, but also complex, area of law. It becomes even more intricate and nuanced when modern technology intersects with established legal methods and principles.

This Part first discusses the foundations of United States copyright law, the agreements into which copyright holders can enter, and the remedies for the unauthorized copying of works that copyright law protects. Then, it establishes how copyright law specifically functions to protect creators in the music industry. Further, it introduces synchronization rights, defined as rights which are granted to a sound recording’s copyright holder to protect against the unauthorized incorporation of the sound recording into an audiovisual work. Finally, it asks whether synchronization right negotiations and agreements should be required for hologram concerts.

A. Foundations of Copyright Law and the Copyright Act of 1976

Synchronization rights find their basis in modern copyright law.²¹ A copyright is a legal protection that grants ownership of a creative work and prevents or mitigates damages arising from the copying of such a work.²² Copyrights are meant to inspire innovation in creative fields.²³ The Copyright Act of 1976²⁴ (the Copyright Act) sets out the rules governing copyright law,²⁵ which are codified in Title XVII of the United States Code.²⁶

To apply for a copyright, an artist must establish that their work meets the three foundational elements of copyright.²⁷ First, the work must be creative.²⁸ The work does not need to be novel, but it must demonstrate some originality.²⁹ Second, the work must be a work of authorship.³⁰ Works of authorship are broadly defined to include “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”³¹ Third, the work must be “fixed in a[] tangible medium.”³² To be “fixed in a tangible medium” means the work must be in a form that is “permanent or stable to permit it to be perceived.”³³

Once the artist has met each element of a copyright, he or she must apply for registration with the United States Copyright Office.³⁴ Registration with the United States Copyright Office requires the artist to provide personally identifiable information,³⁵ the title of the work, information about the work’s publication, and information about the work’s inspiration if the work was derived from another piece.³⁶ Recently, the United States Supreme Court resolved a circuit split, holding that a copyright is granted only when the Register of Copyrights acts on the copyright application, not upon deposit of the application materials.³⁷

After the Register of Copyrights grants the copyright, the artist obtains a number of protections designed to preserve the creative process and respect the artistic integrity of the work.³⁸ These protections include the right of exclusivity in the work,³⁹ the right of publicity of the work,⁴⁰ and the right to reproduce the work.⁴¹ Breaching any of the rights granted by copyright is termed “infringement.”⁴² Copyright infringement occurs when a non-owner of the work duplicates elements of a work protected by copyright or otherwise interferes with the conferred rights associated with copyrights.⁴³

B. Licensing, Infringement, and Fair Use

Owners of copyrights may grant licenses to others for the use of their copyrighted works, exchanging protections against infringement suits for a fee.⁴⁴ Alternatively, works may be used or reproduced without a license if they meet the standards of the fair use doctrine.⁴⁵ The fair use doctrine outlines an affirmative defense against claims of infringement when “rigid application of the copyright statute . . . would stifle the very creativity which that law is designed to foster.”⁴⁶ Courts applying the fair use doctrine consider:

(1) the purpose and character of the use . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.⁴⁷

In certain circumstances—courts weigh the transformative value of the work against its commercialism.⁴⁸

Historically, courts have applied the fair use doctrine to non-profits or educational institutions using copyrighted work.⁴⁹ Meanwhile, with more corporate or commercial entities, courts have applied the fair use doctrine when the work is highly transformative, or so “different in purpose, character, expression, meaning, and message” that the work serves an entirely separate function to the copier as it did to the creator.⁵⁰ This exception to infringement stems from British common law.⁵¹

Fair use is an affirmative defense to infringement.⁵² When the fair use factors are not met, a court can find infringement where a plaintiff “owned a valid copyright and . . . [a] defendant copied the original elements of that copyright.”⁵³ To be found liable for infringement, an infringer need not copy the entire work.⁵⁴ Instead, “[w]here . . . a work is an amalgamation of protectible and unprotectible elements . . . the court first filter[s] out from consideration any non-protectible elements” then analyses “[t]he remaining, protectible elements . . . for substantial similarity.”⁵⁵ Remedies for infringement can include injunctive relief or damages for lost profits.⁵⁶

C. Copyright and Music

The arts and other creative mediums lend themselves naturally to a copyright analysis. Music cases concern two major aspects of creation that are eligible for a copyright: music composition and sound recording.⁵⁷ A music composition copyright is usually granted to a lyricist, artist, or composer for the content of the recording.⁵⁸ It focuses on the music and lyrics themselves.⁵⁹ A sound recording copyright is usually granted to a record label or distributor that produced a recording of the work, guaranteeing the exclusive right to reproduce the sound recording.⁶⁰ The most distinguishing feature of a sound recording copyright is that the exclusive right to perform the work is not conferred, as it is with a copyright in a musical composition.⁶¹ This Comment focuses on sound recording copyrights.

Under Section 114(b), the holder of a copyright in a sound recording has the exclusive right to the future use of the work, including the right to reproduce, create derivatives of, and distribute the work.⁶² Synchronization rights, defined as a 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,” are considered a subset of the reproduction right.⁶³ They are also exclusive to a sound recording copyright holder, protecting the copyright holder from any entity wishing to synchronize the sound recording to an audiovisual work.⁶⁴

Synchronization rights recognize the value in the process of combining two works that may be copyrighted individually by their creators into a third, separate work that meets the three copyright elements.⁶⁵ Courts established this right as a subset of the exclusive reproduction rights prescribed by Section 114(b) when motion pictures, rather than having live orchestral accompaniment, began to include sound recordings as scores in the early 1940s.⁶⁶

To transfer synchronization rights, the parties must agree to a synchronization license.⁶⁷ The synchronization license allows for the temporary or permanent transfer of the copyright holder’s synchronization right based on a contractual agreement.⁶⁸ The contractual agreement would specify the use of the material, which in this case would be the incorporation of the sound recording into another work.⁶⁹ A synchronization license agreement is typically negotiated by the sound recording copyright holder—usually a studio or record label—and the producer of another work or a venue’s agent.⁷⁰ Synchronization licenses protect the copyright holder’s interest in financial recognition for their work while encouraging artists to share new ideas.⁷¹ They represent a mutual agreement that establishes the payment of a sum of money for the artistic value.⁷² The prices negotiated for synchronization rights can range from 100 to 25,000 dollars.⁷³ With this variance in prices, licenses to preserve synchronization rights also fuel necessary competition in the music industry that supports creativity and innovation.⁷⁴

D. The Orrin G. Hatch-Bob Goodlatte Music Modernization Act and Copyright of Sound Recordings

The Orrin G. Hatch-Bob Goodlatte Music Modernization Act⁷⁵ (Music Modernization Act) was promulgated to address the United States Copyright Office’s difficulties in regulating a rapidly modernizing industry.⁷⁶ It consolidates three bills: the Musical Works Modernization Act,⁷⁷ the Classics Protection and Access Act,⁷⁸ and the Allocation for Music Producers Act.⁷⁹ The Musical Works Modernization Act established a non-profit agency to create a database for owners of mechanical licenses of sound recordings.⁸⁰ It ensured songwriters were paid a portion of mechanical license royalties and increased the efficiency of handling rate disputes in the Southern District of New York, a popular copyright court.⁸¹ The Classics Protection and Access Act enabled sound recordings created prior to February 15, 1972 to obtain copyright protection.⁸² The Allocation for Music Producers Act gave SoundExchange, a nonprofit started by Congress to distribute royalties, the responsibility to grant royalties to the producer, sound mixer, and sound engineer of recordings.⁸³

Though copyright holders of pre-1972 sound recordings had previously not been granted the same remedies for infringement as copyright holders of post-1972 sound recordings, the Music Modernization Act incorporates pre-1972 sound recordings into the modern copyright system.⁸⁴ Title II of the Music Modernization Act brings such sound recordings into the modern federal copyright regime, and notably, it allows record labels that hold copyrights in sound recordings to recover under the Federal Copyright Act for infringement.⁸⁵ The Music Modernization Act also includes affirmative defenses for infringement including fair use, and specifies the remedies available for infringement like the granting of injunctive relief, damages, and lost profits.⁸⁶

E. The Emergence of Synchronization Rights

At their inception, synchronization licenses emerged from 17 U.S.C. § 114(b). This provision of the Copyright Act discusses the rights granted to sound recording copyright holders.⁸⁷ In outlining the scope of exclusive rights in sound recordings, Section 114(b) reads:

The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.⁸⁸

Courts created the synchronization right from the exclusive right to reproduce sound recordings that has predated the Copyright Act.⁸⁹ Courts often refer to this right as the synchronization right, or “sync right,” based on the Copyright Act of 1909’s grant of reproduction rights.⁹⁰ Now, courts frequently cite the modern equivalent, Section 114(b), when discussing synchronization rights.⁹¹

Synchronization rights are required for artists incorporating sound recordings in timed relation⁹² to audiovisual works.⁹³ 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.⁹⁴

The earliest cases discussing synchronization rights were antitrust cases arising when sound was first incorporated into film as part of film scores.⁹⁵ In Alden-Rochelle, Inc. v. American Society of Composers, Authors, & Publishers,⁹⁶ the Southern District of New York heard an antitrust challenge against the American Society of Composers, Authors, and Publishers (ASCAP) that centered on a conspiracy “based upon a splitting of the picture synchronization rights of a musical composition from its picture performing rights.”⁹⁷ The court found an antitrust violation where the ASCAP allowed a movie producer to acquire the right to use the sound recording in synchronization with a film, but the ASCAP charged separately for the right to then show the film publicly as a performance.⁹⁸

In M. Witmark & Sons v. Jensen,⁹⁹ the court also considered an antitrust violation stemming from a movie theater owner’s showing of films without the producer of the film obtaining both synchronization and performance rights for the music used from the ASCAP.¹⁰⁰ However, the court, sitting in equity, did not grant relief for the plaintiffs, instead holding that it would be simplest to issue both synchronization and performance rights to the producers.¹⁰¹ While the cost of the performance license would then likely be passed on the venue’s owner, the court held that this was not contrary to public interest.¹⁰²

At the emergence of television, the technology was so similar to film that courts intuitively applied synchronization license requirements from film to television broadcasts.¹⁰³ In 1984, the Second Circuit considered an antitrust suit reminiscent of Alden-Rochelle and M. Witmark & Sons. However, in Buffalo Broadcasting Co. v. American Society of Composers, Authors, & Publishers,¹⁰⁴ local television station owners, not movie producers, faced the ASCAP.¹⁰⁵ In finding that blanket licensing does not constitute an unreasonable restraint on trade where individual rights are impracticable to acquire, the court considered synchronization licenses to apply to “local stations . . . and program producers.”¹⁰⁶

Less than ten years later, the Second Circuit again considered synchronization licenses for television programs in Agee v. Paramount Communications, Inc.¹⁰⁷ to determine whether Paramount Communications, Inc. violated Agee’s copyright by using portions of Agee’s sound recordings in audio tracks that accompanied television programs.¹⁰⁸ The court found that, despite certain exceptions for rebroadcasting,¹⁰⁹ the synchronization of the sound recording with the television program without a license infringed Agee’s reproduction rights, and thus synchronization rights under Section 114(b), in part because television was an audiovisual medium.¹¹⁰ Television and film are highly similar formats for artistic work, but technology has since expanded to include more formats than the traditional projection of moving images on a screen.

F. Expanding the Synchronization Right

Expanding the requirement for synchronization licenses has implicated several novel technologies. Most similar in style to film and television, advertisements and promotional videos have become subject to synchronization license requirements.¹¹¹ In Steele v. Turner Broadcasting System, Inc.,¹¹² the District of Massachusetts considered an infringement of synchronization rights where a song written about the Boston Red Sox was used in promotional videos for the Major League Baseball post-season.¹¹³ Although the court found that the use did not violate synchronization rights because the sound recording was not sufficiently within “timed-relation” to the audiovisual work, the court nevertheless conducted a synchronization analysis for the promotional video.¹¹⁴ In Beastie Boys v. Monster Energy Co.,¹¹⁵ the Southern District of New York heard a breach of contract claim regarding the use of a remix in an online promotional video.¹¹⁶ Like the court in Steele, the court in Beastie Boys found synchronization rights applied to audiovisual works including the “use of a song in a . . . commercial soundtrack.”¹¹⁷

Similarly, courts have also considered synchronization license requirements in infringement suits regarding video games. In Romantics v. Activision Publishing, Inc.,¹¹⁸ the court considered an infringement suit where a sound recording was synchronized in timed relation to a video game.¹¹⁹ The court held that videogames were sufficiently audiovisual to require synchronization licenses, but it found that no infringement occurred where the videogame used a new recording, rather than the original recording.¹²⁰

Karaoke machines have continued to pose a question for courts analyzing synchronization license requirements. In EMI Entertainment World, Inc. v. Priddis Music, Inc.,¹²¹ the court found synchronization licenses were not necessary for karaoke machines that solely featured digitized text, since the visual images were not sufficiently audiovisual.¹²² Conversely, in Leadsinger, Inc. v. BMG Music Publishing,¹²³ the court found karaoke machines were sufficiently audiovisual as to require synchronization licenses when using sound recordings because the machines were composed of images, even if the “images [were] comprised [solely] of song lyrics.”¹²⁴

Most recently, in early 2019, music publishers filed a lawsuit against Peloton Interactive, Inc. (Peloton) for failing to obtain a synchronization license.¹²⁵ Peloton is a company that sells indoor cycling bicycles featuring classes users can watch on the bicycle’s screen.¹²⁶ The class instructors choose a playlist of songs to incorporate into the workouts.¹²⁷ The dispute centered on whether Peloton obtained adequate synchronization licenses for those songs.¹²⁸ Peloton obtained blanket “catalog-wide”¹²⁹ synchronization license agreements with many music publishers, but it did not obtain license agreements independently for every song used.¹³⁰ In late 2019, the Southern District of New York allowed the music publishers to request double damages for the infringement.¹³¹ Recently, the court dismissed Peloton’s antitrust counterclaim against the music publishers.¹³² The Southern District of New York has yet to explicitly address whether synchronization licenses are required to incorporate sound recordings into exercise videos; however, the court implicitly addressed the issue by noting the type of synchronization license Peloton needs to obtain to avoid infringement.¹³³

G. Holograms and Synchronization

Holograms rose to the forefront of the music industry in 2012 after Tupac Shakur’s hologram “performed” at the Coachella Valley Music and Arts Festival.¹³⁴ Since then, holograms have raised several legal issues, most prominently those regarding the right of publicity. The right of publicity is a court-created right.¹³⁵ Sometimes called the “fourth ‘privacy’ tort,” the right of publicity “protect[s] the interest of the individual in the exclusive use of his [or her] own identity” and protects “against commercial loss caused by appropriation” of that identity “for commercial exploitation.”¹³⁶ Roughly half of the states recognize this right.¹³⁷ Many authors have written extensively on the post-mortem right of publicity regarding dead celebrity hologram performances.¹³⁸ However, this Comment focuses on the lesser-explored synchronization right accorded to copyright holders of sound recordings and its application to hologram technology.

Although the creators of dead celebrity holograms keep much of the development secret, the basis of the technology is a complex series of manipulations of light, glass, and video known as “Pepper’s Ghost.”¹³⁹ Pepper’s Ghost is a century-old optical trick that used reflections through plexiglass to enable ghosts to “materialize” on stage despite the actors standing out of the audience’s sight.¹⁴⁰ Now, hologram companies use video footage, rather than live actors, to create the illusion.¹⁴¹ Modern holograms can have their full “body” in motion or move just their “mouth[s].”¹⁴² The concerts are brought to life when hologram technology is used in timed relation to sound recordings of the artist’s music. This complex mix of digitized and illusory formats leaves holograms in a gray area concerning synchronization rights while hologram concerts become increasingly more popular.¹⁴³

II. Analysis

As shown by the dearth of case law and policy,¹⁴⁴ historically the courts, Congress, and commentators give little consideration to synchronization rights.¹⁴⁵ As modern technology grows in popularity, courts must address the requirement of synchronization licenses for different works. This Comment poses the following question: are holograms sufficiently audiovisual to require a synchronization license analysis from courts considering sound recording infringement cases? Based on the Copyright Act and past synchronization license jurisprudence, the answer is “yes.” Thus, producers of a hologram concert must negotiate a synchronization license agreement with the record label that owns the sound recording copyright of an artist’s work to protect themselves from a synchronization right infringement suit.

A. Holograms are Sufficiently Audiovisual to Require Synchronization Licenses when Incorporated with Sound Recordings.

At the crux of every court’s application of a synchronization license analysis is the court’s discussion of whether the work in question is sufficiently audiovisual. To determine what constitutes audiovisual, this Comment looks to the language and structure of the Copyright Act of 1976. The Copyright Act indicates a broad definition of audiovisual work that courts have supported in their interpretations of synchronization license requirements.¹⁴⁶ As technology has modernized, courts have expanded the definition of audiovisual work. This expanded definition serves as the foundation for this Comment’s argument that holograms should require synchronization license agreements.

From a policy perspective, record labels would be disincentivized to provide their recording services if synchronization license requirements were not enforced because synchronization license requirements protect the investments made by record labels in recording sounds for artists.¹⁴⁷ Thus, holograms are sufficiently audiovisual from both a legal and policy standpoint to require synchronization licenses.¹⁴⁸

1. The language and structure of the Copyright Act of 1976 leads to a broad reading of the term audiovisual

Although the Copyright Act of 1976 did not create the synchronization right, courts have relied on Section 114(b)’s grant of reproduction rights to copyright holders in sound recordings to uphold the requirement of synchronization licenses for sound recordings incorporated into audiovisual works.¹⁴⁹ Notably, Section 114(b) itself contains no reference to the words audiovisual in discussing the reproduction right granted to sound recording copyright holders.¹⁵⁰

However, other parts of the Copyright Act indicate a broad definition of audiovisual work. Works of authorship are incredibly general under the Copyright Act and include “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”¹⁵¹ The Copyright Act also gives audiovisual a broad and inclusive definition:

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.¹⁵²

Both the definition of “work” and of “audiovisual” are sufficiently broad as to allow the courts to include holograms in the definition of audiovisual work.

When interpreting statutes, a court must read them as a whole and “should not confine itself to examining a particular statutory provision in isolation.”¹⁵³ Therefore, Section 114(b) must be read among other provisions of the Copyright Act. Reading Sections 101 and 102 in conjunction with Section 114(b) demonstrates that, in enacting the Copyright Act, Congress formulated a broad definition of work and audiovisual work for the purposes of defining a copyright holder’s rights.¹⁵⁴ Holograms made for the purposes of a concert also incorporate projection, pre-recorded films or tapes, and accompanying sounds, and thus they fall squarely within the Copyright Act’s audiovisual definition.¹⁵⁵

2. Judicial analyses of synchronization licenses in cases with novel technology indicate the expansion of what courts consider audiovisual

The expansion of the court-created synchronization right has also indicated a broadening definition of what is included within audiovisual works.¹⁵⁶ As discussed in Part I.E,¹⁵⁷ courts originally analyzed synchronization rights as a subsection of the reproduction right for sound recordings incorporated into film soundtracks as part of the score.¹⁵⁸ As technology progressed, courts expanded into the area of television since the technology was so similar to that of film that there was no question that television was sufficiently audiovisual to require a synchronization license.¹⁵⁹

Where modern technologies such as video games, promotional videos, and karaoke are concerned, courts have continued to expand the definition of audiovisual. For example, in Beastie Boys, the court considered an advertisement that used a Beastie Boys song in timed relation with a video.¹⁶⁰ The court found that “the Beastie Boys, as owners of the copyrights to the underlying songs, held the exclusive right to authorize Monster to ‘reproduce,’ ‘prepare derivative works,’ ‘distribute,’ and publicly perform the music, including by synchronizing it with an audiovisual work such as [a promotional] [v]ideo.”¹⁶¹ Although the court in Romantics found the defendants sufficiently changed an original song to avoid a synchronization right infringement in using the sound recording in timed relation to a video game, the court still applied synchronization license analysis to video games as an audiovisual medium.¹⁶²

[g]ame takes anywhere from six to twelve months and includes choosing a theme; designing graphic characters, locations, and instruments; selecting songs; synchronizing the songs with graphic elements to enable game play; game testing; and game production”).

Courts have found it particularly complex to apply synchronization right analysis to songs occurring in timed relation to videos on karaoke machines due to karaoke machines’ variety of formats.¹⁶³ Although the District of Utah found karaoke machines that featured solely lyrics on the screen were not sufficiently audiovisual for the purposes of a synchronization license, the Ninth Circuit found that similar machines, even if solely displaying text, still provided a sufficient audiovisual basis to require a synchronization license.¹⁶⁴ Neither interpretation is universally binding, but the Ninth Circuit’s reasoning is persuasive in suggesting that the definition of audiovisual work is expanding.

The most recent litigation over synchronization licenses stems from home exercise video classes.¹⁶⁵ Although courts have not directly addressed any synchronization license requirements for Peloton, Inc.’s exercise videos, the Southern District of New York’s immediate identification of the dispute as centering on the type of synchronization license needed implicitly acknowledges that a synchronization license is necessary for exercise videos.¹⁶⁶ Holograms are similar to the Peloton videos because they are also an emerging technology that incorporates visual and audial elements. Peloton, which emerged in 2012, started harnessing internet connectivity in 2014 to tap into modern indoor-cycling trends.¹⁶⁷ Similarly, after Tupac Shakur’s holographic appearance in 2012, hologram creators have also harnessed modern technology like computer-generated imagery to make the most realistic projections.¹⁶⁸ Thus, courts must be prepared to address holograms’ audiovisual nature as these lawsuits become more frequent and recurring.

Judicial analysis regarding what constitutes audiovisual work has expanded as new technology becomes involved in artistic work. Therefore, based on past jurisprudence surrounding synchronization rights, holograms should be considered sufficiently audiovisual to require synchronization licenses when used in timed relation to a copyrighted sound recording. Otherwise, the sound recording’s copyright holder is entitled to remedies for copyright infringement barring an exception, such as fair use.¹⁶⁹

3. As a matter of policy, the music industry would benefit from courts incorporating hologram technology into the definition of audiovisual work for the purposes of synchronization licenses

Developers of sound recordings, typically record labels,¹⁷⁰ are financially and creatively invested in the reproduction of that recording for their own economic benefit.¹⁷¹ At the same time, producers of hologram concerts have much to gain economically from staging deceased artists’ live performances.¹⁷² For example, “[w]hile U.S. music sales and licensing revenue are slipping (from 2001 to 2011, sales dropped from $13.7 billion to $3.4 billion), show revenue has spiked ([from] $1.7 billion to $4.3 billion).”¹⁷³ As the entity with the most to gain from hologram concerts and a primary party organizing the events, the producer of a show also has the greatest ability to pay infringement damages and would be a primary target of infringement suits should the rights to a sound recording not be sufficiently transferred.¹⁷⁴

To inspire innovation and maintain competition in the music industry, courts must provide creative protections.¹⁷⁵ Record labels, the copyright holders of most sound recordings,¹⁷⁶ are responsible for carrying out many functions in the music industry.¹⁷⁷ They discover new artists and provide financial and public relations backing for established artists.¹⁷⁸ However, they also have brought numerous suits for infringement of synchronization rights.¹⁷⁹

Thus, to protect record labels’ interests in continuing to record sounds and support new and established artists, courts should respect the record label’s reproduction rights as they pertain to synchronization license analyses for hologram performances. Although policy is not the sole reason for courts to act, the policy benefits of applying synchronization license requirements to hologram concerts only serve to support the legal expansion of the definition of audiovisual to include new technology.

4. Synchronization licenses should be required for works that are audiovisual and should not require a judicial finding that the work is sufficiently “in motion”

Some scholars argue that the analysis of synchronization licenses should not focus on the audiovisual nature of the work, but rather on whether the work is sufficiently “in motion.”¹⁸⁰ Sometimes, holograms are projections based on still images or only move one part of their “body.”¹⁸¹ Thus, holograms would not necessarily require synchronization licenses because they are not sufficiently “in motion” to fall within the definition of “audiovisual.”¹⁸² However, even the most simple holograms require the incorporation of projection, images, and mirrors to operate.¹⁸³ In the technological era, hologram developers are using computers and video to animate and add depth to almost all commercial holograms, thus enabling them to become more complex audiovisual works.¹⁸⁴

Moreover, courts have favored “audiovisual” over “in motion” in discussing the matter, and holograms’ very nature falls within both historical and modern legal conceptions defining audiovisual works for the purpose of a synchronization license. Holograms themselves are copyrightable works¹⁸⁵ that consist of an amalgamation of projection, still image, and moving image technologies.¹⁸⁶ Although holograms are not directly equivalent to film or television due to their complexity, they do incorporate similar technologies by utilizing moving images.¹⁸⁷ When a sound recording is incorporated into a hologram performance, the work is inherently and definitionally audiovisual—audio from the recording combined with visual images of a person—in a manner that surpasses the complexity of lyrical text on a screen like in karaoke machines.¹⁸⁸

As opposed to karaoke machines, holograms are technologically and visually more equivalent to advertisements, promotional videos, and video games. Instead of singular elements, holograms, especially modern ones, utilize many components that go towards a finding of an audiovisual work, such as moving images, projection, videography, and sound.¹⁸⁹ Even if holograms are not as definitionally audiovisual as film or television and are thus treated more similarly to karaoke machines, courts should favor the Ninth Circuit’s argument¹⁹⁰ over the District of Utah’s¹⁹¹ because the Ninth Circuit is a more persuasive institution. Therefore, courts should conduct synchronization analyses in cases concerning holograms as a matter of law because of a consistently expanding definition of audiovisual in past cases concerning synchronization rights.

B. Remedies for Copyright Holders Against Infringers who Breach or Fail to Acquire Synchronization License Agreements can be Based on Applying Pre-existing Legal Frameworks

Through Title II of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act, copyright holders received federal copyright protections of sound recordings, including pre-1972 sound recordings.¹⁹² Now, federal remedies for infringement and exceptions to infringement, like fair use, apply to sound recordings.¹⁹³ After courts conduct a synchronization right analysis because holograms are sufficiently audiovisual, determining infringement remedies would not overwhelm the courts because a legal framework for analysis and infringement remedies already exists. Any breach of the synchronization right should be subject to injunctive relief, damages (including statutory damages), or profits like any other copyright infringement.

Additionally, as technology progresses and becomes less expensive, the possibility arises that nonprofits or educational institutions will use holograms, especially for large-scale events. In considering cases involving these types of institutions, courts have a pre-existing framework to apply the doctrine of fair use as an exception to a finding of liability in infringement suits.

1. The enforcement of synchronization licenses and remedies should mimic federal application of general copyright enforcement and infringement remedies

To implement this Comment’s recommendation, a shift must occur in the framework of how courts discuss synchronization rights. Even though synchronization rights stemmed from a definition surrounding audiovisual work in the context of film and television, the advent of new technology has already led courts to expand the definition of audiovisual to include promotional videos, video games, and even (though it is disputed) karaoke machines displaying lyrical text.¹⁹⁴

In upcoming cases, courts can implement a change in their analytical framework by including language describing holograms and projections within their discussion of synchronization rights. Similarly, the United States Copyright Office could encourage private actors, through administrative rulemaking or a shift in industry standards, to adopt broader licensing agreements for synchronization rights. For example, some template forms for synchronization license agreements have already expanded their definition of audiovisual work to simply address “works” generally as anything creative “throughout the world, in any medium or form, whether now known or hereinafter created.”¹⁹⁵

The key to enforcing synchronization license requirements for holograms lies in treating infringement of synchronization rights as a general copyright infringement. The Music Modernization Act incorporated pre-1972 sound recordings into the federal copyright system along with post-1972 sound recordings for the purposes of infringement.¹⁹⁶ Copyright infringement occurs when one who is not the owner of a work copied elements of a work protected by copyright.¹⁹⁷ Breaches of licensing agreements are often raised as copyright infringement actions.¹⁹⁸ Unless an infringer succeeds on an affirmative defense such as fair use, a court can grant the rights holder injunctive relief, as well as damages and profits, or statutory damages.¹⁹⁹

2. The fair use caveat to infringement liability should apply to synchronization licenses for hologram performances as it does for other similar copyright infringement suits

Although holograms are expensive to create, hologram performances may serve purposes other than commercial gain.²⁰⁰ For example, non-profit organizations could use hologram concerts could be used to raise morale for and engagement with their causes. In these circumstances, courts should apply the fair use doctrine as they would in any copyright infringement case.²⁰¹ This is supported by the Music Modernization Act that incorporates pre-1972 sound recordings into the modern copyright framework, including in allowing courts to apply doctrines such as fair use as an affirmative defense to infringement suits.²⁰²

The fair use doctrine considers the “purpose and character of the use,” the “nature of the copyrighted work,” the “amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and “the effect of the use upon the potential market for or value of the copyrighted work,” and weighs the transformative value of the work against its commercialism.²⁰³ In fair use cases, no single factor is dispositive.²⁰⁴ Courts would be asked to consider what type of institution was using a hologram and the type and purpose of the performance given. Even though hologram technology is expensive and commercial nowadays, the fair use elements can be reconsidered as lawsuits arise in the future.

Conclusion

Copyright law is broad, and for good reason. It protects artists’ interests by rewarding the investment and creativity required to produce new creative works for public consumption.²⁰⁵ In particular, music is a large field within the realm of copyright law, with copyrights granted both for the composition of new music and for the creation of sound recordings.²⁰⁶

The copyright protections afforded for sound recordings are only increasing in breadth as modern technology continues to emerge. This broadening has come at both the statutory level and the judicial level. Prior to the incorporation of film scores as opposed to including a live orchestra at the cinema, synchronization rights were not even formulated.²⁰⁷ Now, courts commonly discuss and debate synchronization rights for novel technologies as varied as promotional videos, video games, and karaoke machines.²⁰⁸

In summation, the language of Section 114(b) grants the exclusive reproduction rights to copyright holders in sound recordings.²⁰⁹ Courts have used the exclusive reproduction rights granted by Section 114(b) to create a synchronization right when sound recordings are incorporated into audiovisual works.²¹⁰ The synchronization right protects a sound recording copyright holder’s interests where the sound recording is incorporated into an audiovisual work.²¹¹

Neither courts nor the Copyright Act of 1976 expressly define audiovisual works for the purposes of synchronization rights. However, the language and structure of the Copyright Act encourage a broad interpretation for the definition of what constitutes an audiovisual work.²¹² Additionally, the jurisprudence surrounding audiovisual works has expanded the definition as well.

Originally, courts applied synchronization right analysis to mediums such as film and television.²¹³ However, courts have expanded the definition to include promotional videos, video games, and even some karaoke machines.²¹⁴ Implicitly, courts have also acknowledged synchronization right requirements for exercise videos.²¹⁵ Although commercial holograms have varying degrees of movement,²¹⁶ their complex composition of video, still images, projection, and illusion²¹⁷ leads them to be sufficiently audiovisual in the wake of courts expanding the definition of traditional audiovisual works.²¹⁸

Additionally, from a policy perspective, the proper enforcement of synchronization licenses would incentivize record labels, the major holders of sound recording copyrights, to continue providing artist support services.²¹⁹ Record labels are key players in the music industry, and their role in discovering new artists, supporting artist publicity, and engaging the public in artist branding is essential to the continued success of musicians, producers, and consumers alike.²²⁰

Further, the existing enforcement and remedies framework for copyright infringement could easily be transferred to include holograms.²²¹ Especially after the unanimous passing of the Orrin G. Hatch-Bob Goodlatte Modernization Act through Congress, the incorporation of holograms into a copyright system designed to protect the interests of copyright holders in sound recordings is established and straightforward.²²² Courts would carry no additional burden to construct a new framework solely for evaluating hologram claims. Therefore, hologram concert producers must engage in similar synchronization license negotiations as film and television producers to protect themselves from copyright infringement lawsuits.

While no lawsuits have yet made it to trial regarding holograms and synchronization licenses, the emerging technology is at the forefront of media attention. Hologram creators have faced lawsuits in copyright law where individuals have challenged the technology on the grounds of right of publicity and right to likeness.²²³ Fans are also concerned about how holograms represent the legacy of their dead celebrity icons.²²⁴ Hologram use has also raised more technical patent infringement lawsuits.²²⁵ As technology progresses, complex issues arise with how the mechanism for holograms functions.²²⁶ Additionally, news articles are constantly reporting on upcoming hologram tours’ ethical questions, keeping the issue at the forefront of discourse amongst music industry professionals.²²⁷

Since synchronization rights are so highly litigated by record labels looking to enforce their copyright protections, it is only a matter of time before synchronization right lawsuits emerge in the context of dead celebrity hologram concerts. Courts must be prepared for this inevitability. In interpreting modern technology, innovative solutions are often needed, but with synchronization licenses, innovation is not even necessary. Congress and the courts have already established an expansive framework for analyzing audiovisual works incorporated with sound recordings and providing remedies such as injunctive relief, damages, and lost profits for breaches of exclusive rights protected by copyright. The federal courts may now apply it to any new case arising in the context of hologram performances. As Chance the Rapper warned, “Please don’t make no holograms . . . [but] if you get the license then you better use it right.”²²⁸

Pixelated Poltergeists: Synchronization Rights and the Audiovisual Nature of “Dead Celebrity” Holograms

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