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December 12, 2005.


The opinion of the court was delivered by: GERARD LYNCH, District Judge


Plaintiff Freeplay Music, Inc. ("Freeplay") holds copyrights in certain musical compositions and sound recordings. In this action for copyright infringement, as explained in the Court's prior opinion denying defendants' motion to dismiss, plaintiff contends that defendants, owners of certain radio stations ("Broadcasters"), violated its "synchronization rights" by producing and broadcasting commercials or other programming that reproduced Freeplay's copyrighted materials on a single recording with other materials. See Freeplay Music, Inc. v. Cox Radio, Inc., No. 04 Civ. 5238 (GEL), 2005 WL 1500898 (S.D.N.Y. June 23, 2005).

In the earlier opinion, the Court declined to dismiss the complaint, holding that although the complaint was less than clear, it appeared that "[a]t a minimum, Freeplay's complaint can be construed as asserting that the Broadcasters did not merely broadcast programming supplied by an outside producer that violated its synchronization rights, but actually produced infringing materials themselves, an accusation that would state a claim for violation of copyright." Id. at *3. The parties have now filed cross-motions for partial summary judgment that pose the question whether Freeplay can prevail on a claim that the Broadcasters violated its copyrights simply by broadcasting allegedly infringing materials created and supplied by others. Since it may not, defendants' motion will be granted, and plaintiff's denied.


  I. Procedural History

  Freeplay filed its complaint on July 2, 2004. As noted in the Court's prior opinion, the complaint itself appeared to allege only that the Broadcasters had infringed Freeplay's copyrights by "broadcasting Freeplay's copyrighted sound recordings and compositions over the radio as part of their regular programming." Id. at *1. In fact, however, it emerged from the briefing of defendants' initial motion to dismiss that Freeplay's claim was a quite different, and more complex, allegation that the Broadcasters had violated its "synchronization rights" by broadcasting or creating recordings that incorporated Freeplay's musical compositions into a larger whole, for example, by using Freeplay's compositions as background music during a commercial or promotional spot in which a product or service is advertised. The Court denied the motion, holding that the complaint stated a copyright cause of action, at the very least to the extent that it asserted that the Broadcasters had themselves created such recordings. Id. at *3.

  The Broadcasters proceeded to answer the complaint, asserting among other responses the affirmative defense that they were licensed to broadcast Freeplay's compositions. Freeplay then moved for partial summary judgment striking that defense, and the Broadcasters cross-moved for summary judgment dismissing any claims based on their broadcasting allegedly infringing material created by others, arguing that its license defense was dispositive of such claims.*fn1

  II. Factual Background

  Discovery has not been completed, and the factual record is sparse. It is undisputed that Freeplay holds copyrights both in certain musical compositions and in sound recordings embodying those compositions. Freeplay asserts, and for purposes of this motion it will be assumed to be the case, that the Broadcasters have broadcast recordings that illegally incorporate its compositions. The exact nature and origin of the material broadcast has not been established, but it appears to be assumed by the parties that some or all of the allegedly infringing material consists of recordings made and supplied to the Broadcasters by third parties, such as commercial advertisements. It follows that resolution of the legal issue posed by this motion will significantly affect the scope of this action and the extent of defendants' potential liability. The Broadcasters' exposure will apparently be significantly greater if Freeplay can assert a claim for damages based not only on any use defendants have themselves made of its compositions, but also on their broadcasting recordings made by others that incorporate those compositions.

  The Broadcasters' license defense is based on licenses they have obtained from Broadcast Music, Inc. ("BMI"). BMI, which is not a party to this lawsuit, is a non-profit organization that enters agreements with songwriters, composers, and music publishers. Under these agreements, the artists grant BMI a (non-exclusive) right to license public performance of their copyrighted musical works. Freeplay has entered such an affiliation agreement with BMI. BMI in turn issues licenses to customers, including the Broadcasters, permitting them to publicly perform all of its affiliated artists' copyrighted musical works. BMI collects fees from its licensees, and in turn pays royalties to the artists according to the terms of its agreements. It is undisputed that Freeplay's musical compositions are covered by BMI licenses issued to the Broadcasters. The Broadcasters claim that these licenses defeat any claim against them for broadcasting programming created by others that incorporates Freeplay's compositions, even if such programming was created in violation of Freeplay's "synchronization rights." Freeplay argues that it does not. DISCUSSION

  Copyright is commonly conceived as "a bundle of discrete exclusive rights" each of which may be transferred or retained separately by the copyright owner. N.Y. Times Co. v. Tasini, 533 U.S. 483, 495-96 (2001) (internal quotation marks omitted). See 17 U.S.C. § 201(d)(2) ("Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred . . . and owned separately."). Freeplay's claim concerns one specific right included within a copyright for a musical composition or sound recording, the so-called "synchronization right."

  The Copyright Act does not explicitly define or confer any separately-labeled "synchronization" right. It does, however, give the copyright holder the exclusive right (among others) "to reproduce the copyrighted work in copies or phonorecords." 17 U.S.C. § 106(1). As the Second Circuit has described it, "the so-called synchronization right, or `synch' right . . . [is] the right to reproduce the music onto the soundtrack of a film or a videotape in synchronization with the action. The `synch' right is a form of the reproduction right also created by statute as one of the exclusive rights enjoyed by the copyright owner." Buffalo Broad. Co., Inc. v. Am. Soc'y of Composers, Authors & Publishers, 744 F.2d 917, 920 (2d Cir. 1984). The Court went on to note, "When [a] producer wishes to use outside music in a film or videotape program, it must obtain from the copyright proprietor the `synch' right in order to record the music on the soundtrack of the film or tape." Id. at 921. Such a license is necessary because "incorporating a copyrighted sound recording into the soundtrack of a taped commercial television production infringes the copyright owner's exclusive right of reproduction." Agee v. Paramount Commc'ns, Inc., 59 F.3d 317, 319 (2d Cir. 1995). The exclusive right to reproduce a copyrighted composition or recording, of which the synchronization right is an aspect or subdivision, is distinct from the right, separately granted to a copyright holder by 17 U.S.C. § 106(4), to perform a copyrighted musical work publicly. The distinction, at least in its most common applications, is straightforward: performing a copyrighted musical composition (say, singing Bob Dylan's song "Blowin' in the Wind") on a radio show constitutes a performance of the work; incorporating a tape of a copyrighted recording into a television commercial or the soundtrack of a movie (say, copying the recording of Mr. Dylan singing "Blowin' in the Wind" onto the soundtrack of a commercial for a store selling kites or a fiction film about hang-gliders) constitutes a reproduction of the work (specifically, in the form of synchronization).

  Rights to perform and reproduce copyrighted works are separately granted and may be separately licensed. For example, both musical compositions such as songs, 17 U.S.C. § 102(a)(2), and particular sound recordings embodying versions of those compositions, id. § 102(a)(7), may be copyrighted, but different rights attach to each. Thus, any copyright confers on its owner the exclusive right to reproduce the copyrighted work. Id. § 106(1). However, while a copyright in a musical work confers the exclusive right to perform the copyrighted work publicly, id. § 106(4), a copyright in a sound recording does not. Id. §§ 106(4), 114(a). Although the owner of a copyright in the musical composition holds the exclusive right both to reproduce and to perform the composition, he or she may license, or decline to license, either right separately.

  It is common ground between the parties that BMI licenses cover the public performance of Freeplay's compositions, and therefore authorize the Broadcasters to play recordings of Freeplay's music on the air during their radio programs. The BMI licenses do not purport to authorize licensees to reproduce works of its affiliated copyright owners, however. Thus, holding a BMI blanket license would not authorize a licensee to engage in synchronization. More specifically, the BMI license would not authorize the Broadcasters to create promotional audiotape that used Freeplay's recordings as a background to a commercial urging listeners to "tune in to WXYZ radio."*fn2 The question that divides the ...

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