UCLA Entertainment Law Review

People who are deaf or hard of hearing need captions to understand spoken words in movies and television shows. By the 1990s, after decades of struggles, advocates for the deaf community were largely successful in utilizing legislative, regulatory, and litigation remedies to get producers to caption their movies and television shows.

However, some time in the late 1990s and early 2000s, many producers inexplicably stopped captioning song lyrics in their movies and television shows. This decision

seems to be a reaction to court cases holding that producers needed separate copyrights to produce song lyrics on “sing-along” videocassettes and karaoke machines. Producers apparently believed that separate copyrights are necessary to caption song lyrics for the deaf and hard of hearing consumers.

This article contends that the producers are mistaken in using a “copyright defense” as an excuse not to caption song lyrics, and are potentially leaving themselves vulnerable to a class action lawsuit by deaf consumers if they continue the practice. Recent court decisions have respectively established that 1) providing full accessibility and enjoyment for deaf customers means captioning song lyrics and 2) copying otherwise protected material for the purpose of making it accessible to customers with disabilities comes within the “fair use” exception of the Copyright Act.

If history is any guide, it is only a matter of time before the deaf community turns to the courts to force producers to caption the lyrics to songs that are featured in their movies and television shows. While producers could very well have valid defenses against a lawsuit for not captioning song lyrics in movies or shows, the “copyright defense” should not be one of them.