Synchronizing Copyright and Technology: A New Paradigm for Sync Rights

Abstract

Embedded in a copyright owner’s musical work or sound recording is the synchronization, or sync right. One of the least discussed aspects of music copyright, considerations about sync have come to the fore as the world has increasingly moved from the real world to the virtual. The COVID-19 pandemic has spurred thousands of activities and events to go online. With many of these involving music, the shift to the virtual world has raised new questions about the extent of sync rights.Traditionally, sync rights were meant to require licenses for the use of music in timed-relation to a film or television show. Charting the historical trajectory of this judge-made law, this Article finds that courts have largely continued to confine sync rights to movies, TV shows, and closely related media. At the edges, however, courts have started to disagree and many newer forms of audiovisual work media—such as streaming—have been unexamined, leaving creators without proper guidance. To help draw some clarity, this Article hopes to offer the first comprehensive overview of sync right case law in decades. Drawing from these findings, this Article then proposes utilizing a two-part test drawn from case law—(1) an audiovisual work (2) with music played in timed-relation—to limit the boundaries of sync and better achieve balance between rightholders’ rights and public access to works. In particular, the timed-relation prong of this test has been largely ignored, but revitalizing this intent element could provide more useful and clearer analysis of sync rights and novel media in the future.