In 2015, Attorney John F. Stanton published [Song ends] Why Movie and Television Producers Should Stop Using Copyright as an Excuse to Not Caption Song Lyrics in the UCLA Entertainment Law Review. The short version is that “copyright defense” is not a valid argument for not captioning song lyrics in movies or shows. Making song lyrics accessible for people with disabilities falls under the “fair use” exception of the Copyright Act.
In recent years, no one has used the “copyright defense” as an excuse for not captioning song lyrics. However, caption viewers still encounter some movies and shows that don’t caption song lyrics. If the song is faint or there’s dialogue occurring, then the song lyrics are typically not captioned. But that’s not what is happening. Someone is clearly singing words to a song and there is no overlapping dialogue.
Thomas Logan: Hello, everyone. This is Thomas Logan from Equal Entry here with Ken Nakata of Converge Accessibility. In this episode of A11yInsights, we’re talking about movies and TV shows that don’t caption song lyrics when they should be. This is something I’m really passionate about because I love music, I love songs, and for myself, oftentimes I’m not paying attention to lyrics, I hear more of the melody.
But in shows where I have captions, I benefit a lot from being able to read the lyrics as part of the captions, and I’ve noticed kind of pervasively in a lot of the content that I watch, I rarely see lyrics. So I think one of the reasons was once upon a time, people used to really think that there’s a copyright defense for why lyrics cannot be included in shows, but I wanted to dig deeper and find out what’s been done in the legal world around lyrics in media and have a discussion about it.
So, I think the place we wanted to start was this case that we found from 2015. The case we’re discussing today is Anthony versus Buena Vista Entertainment. And to start, Ken, could you give us an idea of what that was about?
Are Lyrics Essential and Required to be Captioned in Multimedia?
Ken Nakata: I’d be happy to. That case involved a deaf plaintiff who was suing Buena Vista because they downloaded a video from Netflix, and it didn’t include captioning of the lyrics in the music, and he ended up bringing a claim against Sony Pictures and Buena Vista and Netflix and everybody else in the stream of companies that brought that video ultimately to her. And it was an unusual case because it really wasn’t an ADA case. And it wasn’t a typical case where I’d expect to see this, which was probably the 21st century Communication and Video Accessibility Act, or CVAA.
Instead, it was a claim that was based mostly on contract law, and also under California’s Unruh law. And we can talk about why that was likely the case. I think it would have probably been a little bit more successful if it was done under the ADA, and it wouldn’t have been brought in California, but we can talk about that later.
Thomas Logan: My position would be that I do believe that wherever possible the lyrics should be included because they do contribute to the meaning and my understanding of, for example, using the web content accessibility guidelines applied to ADA, for example, that under the web content accessibility guidelines, there would be an expectation for those lyrics to be included when they can fit. Can you discuss more the idea of the difference between bringing the case under ADA versus Unruh?
Ken Nakata: Yeah, I’d be happy to. The difference of bringing it under the ADA and Unruh really comes down to an additional requirement that California imposes under the Unruh Act. If you don’t have a parallel claim under the ADA, if you sue for discrimination on basis of disability under the Unruh Act, a plaintiff also has to show that the defendant engaged in what’s called intentional discrimination so that they knew that this was a problem, that they went ahead and did it anyways, knowing that it was going to have an impact on people with disabilities.
And in this case, well, plaintiff wasn’t able to show that. And, that’s a huge difference. And that’s one of the big reasons why you rarely see cases that are being brought just under Unruh.
Because in order to show that additional element of intentional discrimination is really hard. Unless you’ve got something like a smoking gun memo that says, “Oh, we hate people who are deaf and so we don’t want to caption those lyrics.” It’s really hard to show intentional discrimination.
Thomas Logan: Well, that is interesting. And I think it’s also just interesting that a lot of the reasoning or rationalization of people maybe not considering including lyrics into the captions either comes from an inaccurate understanding. For example, as I mentioned, I have personally heard in some places in my work over the years, people assuming they can’t be included for copyright reasons.
But, from what we’ve looked at, that doesn’t seem to be an argument that holds true, is that correct?
Ken Nakata: Well, I’m not an expert by any means in intellectual property law. But, my understanding is that, you do have to get permission from the original artist in order to play the music as part of a movie in any ways. And as we all know from watching movies, we see lots of credits at the end of the movie for the original artists whose music was actually being played in the movie. But I think that the additional permissions that would be needed for the captions, I think that kind of goes without saying because the spoken words are being provided anyway.
The additional step of providing if the captions for it that go along with that lyric is, I don’t think that that’s a copyright issue personally, but again, I’m not an expert on intellectual property law.
Artistic Intent with Song Selection
Thomas Logan: Great. I think that’s fair enough. I think one extra interesting point I want to discuss here for maybe the last point is just talking about technology and what could or should be possible.
I think one thing that’s interesting is seeing more specifically, Netflix has a list of captioning guidelines for what vendors who are, adding content into their system need to follow. And they have actually under one of their rules for songs, you should subtitle all audible song lyrics that do not interfere with dialogue.
Lyrics should be transcribed verbatim as per the audio. And they also have some information about how to mark the song title and artist, for example. I think one interesting thing to consider and maybe is already being done, but sort of this idea of the third party being responsible for providing captions and transcripts.
I wonder if the music industry for artists, just for the music themselves actually provides captions or has that, as they’re the producer of that work of art. To actually caption the lyrics or hear the lyrics properly. It’s kind of a famous thing in the music industry of people laughing about lyrics they’ve misheard or they’ve made up their own lyrics to songs that aren’t actually accurate.
[Not in the audio clip] Here’s an example of wrong lyrics from “The Goldbergs” when Barry sings Billy Joel’s “We Didn’t Start the Fire.” This was before the Internet where we could look up lyrics.
♪ Harry Truman, Doris Day ♪
♪ Joe is stallin’ Mellor’s cough ♪
♪ Nose hairs and pro coffee pots ♪
♪ Rock your fella, salmonella ♪
♪ Chickens say “Bock!” ♪
♪ Toy bone, on the phone ♪
♪ Tossed panini, yay scones ♪
♪ Ben’s friend Lew Falls ♪
♪ Walk around the block ♪
♪ Barf-O, booed a breast ♪
♪ Slamma Jamma, crew’s Chest ♪
♪ Prince is great, paper plates ♪
♪ Trouble with Aunt Suzy ♪
♪ We didn’t start the fire ♪
♪ Blah-blah-blah-blah,
blah-blah-blah ♪
♪ Blah, blah, blah ♪
♪ Blah, blah, blah ♪
I can see that being very common in music where if it is an independent person trying to caption the material without having that information from the original producer, they may actually include the wrong lyrics. So that’s something I’m also interested in, is if that actually becomes available as a referenceable source material for the people working on that industry.
My other assumption is that people working in the role of, say, a music supervisor or someone responsible in these creative works to be building the sound mix for the creative works, it’s pretty unlikely that they would be trying to have lyrics at an audible volume while dialogue is happening inside of the work of art.
So I think, the idea of like lyrics being going in the background while dialogue is being spoken, that would only happen maybe in things that were less professionally produced. But it’s an interesting topic just wanted to discuss.
And again, I brought it up because I noticed it so much as I’m a person who uses captions in almost everything that I watched. And I really like when I see the song lyrics, but I very infrequently see the song lyrics included in the captions when I’m watching content.
Ken Nakata: Well, Thomas, let me get back to something that you said earlier about all the song lyrics should be captioned. Don’t you think that a large part of this ultimately depends on the artistic intent of why the movie director put in the song in the first place?
Thomas Logan: Yes, I do, and I have an assumption that there is always been an artistic intent if the song has lyrics. In the cases that I’ve looked at, there’s a purposefulness for why that song was chosen. There’s a million songs to choose from to put into your creative work. And from [00:08:00] my side, I think that’s a very purposeful decision.
The lyrics are definitely listened to as part of the process of selecting the song that goes in. So it’s rare to me that it would be decorative or not meaningful.
Ken Nakata: I don’t know whether that’s really true. For instance, we’ve discussed this before. Say a movie puts in a song and it’s being sung in Gaelic, or in the Shawshank Redemption, they put in a Mozart aria, which is all sung in Italian. And the point of that, I would say, is that the artistic intent or the director’s intent of putting that in the movie to begin with wasn’t about the words in the song.
It was about the emotion that was being evoked by that song. And in the case of the Mozart aria, for instance, the one that I used was all about the actual meaning of the lyrics would have been trying to go and trap an unfaithful lover, but the melody of the song is absolutely gorgeous and hypnotic.
And if they actually put in the lyrics in the subtitle, I think it would give the exact opposite feeling to the viewer.
Thomas Logan: That might be more of a globalization thing to me, because I guess if, depending on the example we’re talking about, I can understand that it is sort of the same way that captions are handled when something is said in a foreign language in a movie and it’s intentionally not supposed to be understood.
I think typically, or oftentimes it’s included in the English track version of the captions. You wouldn’t be translating that information. It’s kind of that idea, but if it was like the Italian version of the captions in this song example, maybe would and then maybe that just points out for people that do understand what’s being sung.
Yeah, it maybe wasn’t the intent but if it’s for the English audience then you wouldn’t be captioning those lyrics the same way you don’t caption like spoken language that’s in another language that English speakers don’t speak.
Ken Nakata: Right, I agree with that. But that really gets back to intent, right?
Thomas Logan: Yes, I think that definitely gets back to intent, and again, I think those are some of the edge cases that exist. And then I think also, though, it’s very possible that content that’s produced quickly, or like, without that artistic intent, that’s very possible.
I think at this point, though, in like most professional pieces, again, I would say it’s more likely in the regular case, it had an intent.
Ken Nakata: Okay, I can agree with that. Yeah, granted, I was raising an edge case.
Thomas Logan: I think it’s interesting, though, and I hope if people are interested in this discussion, maybe we can even have some comments with real examples.
Maybe you can think of an example just like the example Ken gave, where it’s being used in this work and really there are lyrics being sung but the intent is totally opposite or actually if it was captioned it would make it much more confusing because it really has no purpose or it would almost give the opposite understanding of the content.
I think those are interesting cases to see and understand and that’s part of making this more of a discussed topic. I’ve really never seen a lot of illustrative examples on this topic. And if we want to improve access to information, we have to teach and we have to learn and we have to have examples and we have to have discussions.
So, we’d love to hear from you. Let’s continue the conversation. Give us some comments and we’ll be happy to respond. Thank you so much for your time and we will see you in our next episode.
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