Broadcast Law Blog

Broadcast Law Blog

More Lawsuits for Unauthorized Use of Photos – Even on Social Media Sites

Posted in Intellectual Property, On Line Media, Website Issues

In recent weeks, we have continued to see copyright lawsuits against broadcasters filed by photographers who allege that their photos have been used without permission.  This spate of lawsuits has not been confined to filings against broadcast companies – even the Donald Trump campaign has reportedly been sued recently for his son’s tweet of a picture of a bowl of Skittles in his now-famous tweet comparing Syrian refugees to the candy treats.  We have written about this issue before (see for instance our posts here and here), but what makes these issues worth writing about again is that several of the recent suits involve not just the unauthorized use of a photograph on a station’s website, but the use of photos in social media posts including tweets on Twitter and posts on Facebook.  Is this really an issue?

It certainly is a concern, especially for commercial businesses.  As we have written before, just because someone posts a picture on the Internet, even on a social media or photo sharing site, does not give others the right to exploit that photo, especially on a digital site of a commercial business.  Posting on a social media site may give the social media site owner the right to exploit posted content consistent with their terms of use, but the person who created the content does not give up their underlying copyright in any creative work to third parties.  The Skittles suit represents an instance of a photographer using copyright law to enforce these rights, apparently as he did not agree with the political sentiment expressed by the tweet in which the photo was used.  But not too long ago, there was significant publicity about a lawsuit, now reportedly settled, about a New Jersey newspaper suing a cable news network because one of its personalities used a well-known 9-11 photo from the paper as the profile picture on that personality’s Facebook page – without first securing permission.  But isn’t that what these social media sites are for – sharing content? Continue Reading

What to do When a Local Political Candidate Appears in a Spot Advertisement for a Commercial Business

Posted in Advertising Issues, Political Broadcasting

This has been an unusual political year, as the number of political broadcasting legal issues that have arisen seems far smaller than in past election cycles. Perhaps broadcasters are all on top of the issues this year, or maybe the questions that often arise in connection with attack ads simply pale in comparison to some of the non-advertising attacks that take place every day in the news and on other political-themed broadcast and cable programming. But one question that has come up repeatedly in these last few weeks before the election has been one about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. What is a station to do?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming) that appearance is a “use” by the political candidate. That includes “uses” even well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. So, an appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air. Continue Reading

Trademark Basics, Part Five: Trademarks on the Internet

Posted in AM Radio, FM Radio, Intellectual Property, Internet Radio, On Line Media, Television, Trademark, Website Issues

Once you have identified your marks and sought protection through registration for some or all of them, there are still going to be other issues that you will need to consider. Trademark owners have an obligation to police their marks and take steps to stop infringers. Otherwise, they may run the risk that someone else will profit off their marks or tarnish the reputation they have developed for those marks. In extreme cases, the failure to police one’s marks may result in losing them entirely. The biggest issues in trademark protection today arise from the use of trademarks on the Internet. In this blog, we identify some situations that you may encounter or want to think about.

Also, note that we have set a date for our free webinar – please join us on November 15th at 1pm Eastern Time for a live overview of the many issues we have discussed in this series. You can register here.


You undoubtedly have one or more websites to promote your services, to interact with your listeners or viewers or to make video or audio available for online viewing or listening. You have spent a fair amount of time and money promoting your sites. Then, you learn that someone else has registered and is using a domain name that is confusingly similar to your domain name or one of your trademarks to attract traffic to their site. There are numerous ways that these cybersquatters can register a variation on your domain name or mark: adding (or dropping) a hyphen, adding a generic term, misspelling a word, omitting a letter, and replacing the letter “o” with a “zero” or the letter “l” with a “one” are some of the most common. Continue Reading

Summaries of the Legal Issues Facing Radio and TV Broadcasters – Staying on Top of Your Regulatory Obligations

Posted in AM Radio, Appearances, Broadcast Auctions, Cable Carriage, Drones, Emergency Communications, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, Intellectual Property, License Renewal, Low Power Television/Class A TV, Multiple Ownership Rules, Political Broadcasting, Television

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. This update was published today, and provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with quick updates on the status of other issues including the Incentive Auction, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. This quarter, we’ve even added discussions of drones and copyright issues that can arise from posting photos on a station’s website. If you are trying to keep on top of all the other legal and regulatory issues TV broadcasters should be considering this fall, or if you are looking for the current status of specific proceedings potentially impacting TV broadcasters, check out our most recent updated summary, here.

Of course, there are issues that radio broadcasters face as well. Last week, I updated the Kansas Association of Broadcasters on the regulatory issues facing broadcasters – both radio and TV. The slides that I used for my presentation at the KAB Annual Convention in Wichita are available here. In that presentation, I discussed issues including AM revitalization and FM translators, the online public inspection file, music licensing, political broadcasting, and other matters. While none of these articles or presentations can be comprehensive, these slides and the TV NewsCheck update, at least give you a quick overview of the many issues that broadcasters should be watching to stay on top of their legal obligations.

What Could Possibly Go Wrong With a Broadcast Contest? – From the Legal Side

Posted in Advertising Issues, AM Radio, FCC Fines, FM Radio, Programming Regulations, Public Interest Obligations/Localism, Television

Earlier this week, our friends at the broadcast and digital media consulting and research firm Jacobs Media posted an article on their blog called “What Could Possibly Go Wrong,” dealing with the financial and reputational issues that can arise if a contest is not fully thought out. That article reminded me of all of the legal issues that we have written about over the years that can arise if all of the issues with a broadcast contest are not carefully considered. Those potential issues range from the an FCC fine if the contest is not conducted as advertised, to the threat of civil liability if the contest results in an injury to a contestant or observer. I thought that I would highlight some of the articles that we have written in the past to remind broadcasters of those potential liabilities.

On the FCC side, the FCC has always been a stickler on the rules, requiring that broadcasters, when conducting their own on-air contests, announce the rules of those contests and to follow those rules as announced. While that burden has become somewhat lighter in the last year as the FCC has allowed stations to publicize the material rules of a contest on a station’s website rather than having to announce them on the air (as long as the on-line location of those rules is itself publicized sufficiently on air, see our post here), that rule change has not affected the underlying obligation of a broadcaster to conduct the contest as announced, in accordance with the contest’s announced rules. Continue Reading

Update on the SESAC Royalty Arbitration Proceedings with the Radio and TV Industries

Posted in Broadcast Performance Royalty, Intellectual Property, Music Rights

SESAC was, until recently, the only one of the three major performing rights organizations (PROs) that was not subject to an antitrust consent decree – meaning that it could set the rates that it wanted without any oversight by any court or other judicial body. For practical purposes, that ended when the radio and television industries separately sued SESAC claiming antitrust violations. Both the radio and TV industries felt that the SESAC royalties were too high in relation to those charged by ASCAP and BMI given the far greater amount of music controlled by these two larger PROs. As we wrote here (television) and here (radio), both antitrust cases ended with settlements where SESAC agreed that its rates would be subject to review by an arbitration panel to assure their reasonableness, if voluntary negotiations between the groups representing the industries and SESAC were not successful in arriving at mutually agreeable rates. So far, it appears that the rate-setting process for radio and TV are going in different directions.

The TV Music License Committee and SESAC have announced that they have reached an agreement in principle as to rates for the TV industry. See the press release here. While the agreement has not been finalized or made public, if negotiations of the final documents are successful, the TV industry and SESAC appear to avoid having their rates set by the arbitration process. So far, that does not seem to be the case for the radio industry. Continue Reading

Trademark Basics Part 4: Trademark Housekeeping 101 – Conducting a Trademark Audit

Posted in Intellectual Property, Trademark

Last week, we discussed the benefits of federally registering your trademarks.  But having a few federal registrations under your belt doesn’t mean your task of building a valuable trademark portfolio is complete.  There are several additional steps you can take to make sure you are managing your trademarks wisely and getting the most value from them.

As we discussed last week, federal registration gives you many benefits and it is the most cost-effective way to protect your brand.  Once you have those registrations in hand, however, it is important to periodically take stock in what you own and what you are (or are no longer) using.  This can help you identify (1) new brands that can be exploited, potentially opening up new lines of licensing revenue, (2) vulnerabilities in your current trademark practices that could expose you to the risk of litigation, and (3) cost savings by identifying marks that are no longer in use and discontinuing their maintenance and enforcement.  Proactively maintaining your trademark portfolio can also help you avoid surprises.  Imagine discovering that an important trademark registration has lapsed only through the due diligence being conducted by a potential buyer of your station or station group.  Not only is that an embarrassing position to be in, but it could compromise your valuation and your negotiating power. Continue Reading

Second Circuit Holds Marketing Campaign Organizer Liable Under FTC Act for Deceptive Representations of Its Marketing “Affiliates”

Posted in Advertising Issues, On Line Media, Website Issues

There is nothing new about the FTC bringing enforcement actions based on deceptive advertising practices.  Those cases are the FTC’s bread and butter.  But in recent years the FTC has been pushing forward with cases that address the increasingly complex network of entities involved in marketing, including companies that collect, buy, and sell consumer information and play other behind-the-scenes roles in marketing campaigns.  The FTC has also taken a strong interest in deceptively formatted advertising, including “native” advertising that does not adequately disclose sponsorship connections.  A recent Court of Appeals decision highlights the potential for any internet company to be liable for a deceptive advertising campaign that it had a hand in orchestrating – even if the company itself does not create the advertising material.

The decision in this case, FTC v. LeadClick Media, LLC, comes from the U.S. Court of Appeals for the Second Circuit and is a significant victory for the FTC and its co-plaintiff, the State of Connecticut.  Specifically, the decision holds that online advertising company LeadClick is liable for the deceptive ads that were published as part an advertising campaign that it coordinated, even though LeadClick itself did not write or publish the ads.  In addition, the Second Circuit rejected LeadClick’s argument that its ad tracking service provided it with immunity from the FTC’s action under Section 230 of the Communications Decency Act (CDA). Continue Reading

Reminder: October 31 Last Day to Seek 250 Mile Waiver for FM Translators Moves to Rebroadcast AM Stations

Posted in AM Radio, FM Translators and LPFM

All this year, the FCC has been busy processing applications by AM broadcasters to buy an FM translator or a translator construction permit, and to move the translator as much as 250 miles to rebroadcast an AM station. We wrote about the Commission’s rules for these translator moves, as set out in December, here. These translator moves have been very successful for many AM stations, giving them an opportunity to put their programming on an FM channel in their market for the first time. The waiver of the translator processing rules now in place allows a broadcaster to acquire a translator and “move” it to the market served by the AM as long as the move is no more than 250 miles. In the AM market, the translator can operate on any commercial FM channel that is available. Once the waiver period ends, except during very infrequent major change windows, translators can only be moved a limited distance where their existing operations interfere with the proposed operations at the new site. This requirement means that the stations usually need to stay on a channel three up or down from the currently authorized channel. So the current 250 mile waiver has provided unusual flexibility for many AM stations to essentially get a new translator on any commercial channel that works in their service area.

The Commission, in its AM Revitalization order (which we summarized here), has promised to open two additional windows at some point in 2017. In these windows, the first of which will be open to Class C and D AM stations only, AM stations that did not take advantage of the 250 mile waiver can apply for new FM translators to rebroadcast their AM stations. In some smaller markets, some station owners have decided not to spend the money to buy a currently authorized translator to move it in the current window, but instead to wait until 2017 to apply for a new one, believing that there is plenty of spectrum in those smaller markets on which to locate a new FM translator. Stations in larger markets, or located in areas where there are many FM stations already, have been more likely to use the 250 mile waiver to stake a claim on the spectrum that is available now in their markets, before a competing station takes that spectrum. For anyone wanting to immediately lay claim to an FM channel for a translator for an AM station, you have only a few weeks to do so under the current relaxed waiver standard – so if you are in that category, you’d better move quickly. We neglected to mention this in our summary of important regulatory dates for broadcasters in October – but it is obviously a deadline that should not be overlooked.

Emergency Communications Updates: FCC Hotline for Hurricane Matthew, Reminder on Accessibility of Emergency Warnings, and Possible Extension for Audio Conversion of Certain Visual Emergency Information

Posted in Emergency Communications, Public Interest Obligations/Localism, Television

With the approach of Hurricane Matthew to the coast of the southeast United States, emergency communications is a high priority for all media outlets. Emergency communications have also been a hot issue at the FCC – with 3 notices in the last week dealing with this important subject. One notice was to provide emergency contact information at the FCC which will be available 24 hours a day during the Hurricane for any assistance that the agency can provide. A second notice was a reminder of how broadcasters (particularly television broadcasters) need to make emergency information accessible. Information that is provided through spoken word must also be made available visually to the hearing impaired, and information that is presented visually must be provided aurally to those who are blind. The third notice asks for comments on the possible extension of time for the waiver of the obligation that TV broadcasters convert certain emergency information presented visually on-screen into audio on a SAP channel for those that are blind or otherwise visually impaired.

The 24-hour hotline (FCC information here) is a service that the FCC instituted many years ago during similar emergencies to help any licensed communications service to the extent possible. In some cases, the response may simply be an immediate response to a request for a temporary authorization to maintain service during the emergency. During Hurricane Katrina, I was asked by a client to talk to people manning the FCC’s emergency number about helping get a fuel truck bringing gasoline to power auxiliary generators at broadcast stations past FEMA roadblocks keeping traffic out of the worst-hit area. I don’t know if the call to the FCC did it, but the truck did get the authorization to enter the restricted area and the station was able to keep operating. So use this number if needed during the emergency. Continue Reading