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January 2, 2008

9th Cir.: Karaoke versions are audiovisual works, not fair use

In an opinion published today in Leadsinger, Inc. v. BMG Music Publishing, the Ninth Circuit held that Leadsinger’s karaoke devices, which contain copies of lyrics for display on a TV screen, are not eligible for a license under 17 U.S.C. 115 because they are “audiovisual works,” not “phonorecords.”  This holding is the same as the Second Circuit’s holding on the same question in ABKCO Music, Inc. v. Stellar Records, Inc. 96 F.3d 60, 65 (2d Cir. 1996). This means that companies marketing karaoke versions of songs, when they display the lyrics, must separately negotiate licenses with the relevant music publishers rather than relying on the statutory license that would be available if the karaoke versions were marketed without the ability to simultaneously display lyrics.

Perhaps more interestingly, the court affirmed the dismissal with prejudice of the plaintiff’s declaratory judgment claim asserting noninfringement based on the fair use doctrine.  The court held that resolving the fair use inquiry on a motion to dismiss is proper when the facts alleged in the complaint, if true, resolve the fair use inquiry.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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