What legal issues should a broadcaster be concerned about when expanding its use of digital media? Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media. While this presentation was made to college broadcasters, most of the issues discussed are relevant to commercial broadcasters as well, especially to broadcasters who are expanding their digital presence – whether by increasing content on their websites, developing podcasts, or using social media to connect with their audience. The slides for the presentation are available here, and address issues including the use of music on a website (see, for instance, our article about concerns over the use of music in podcasts), how broadcast stations brands (program titles and slogans) can draw unwanted attention from trademark holders who have registered similar marks, how media created for analog purposes may need new permissions to be used in other digital mediums, how fair use needs to be relied on sparingly in borrowing someone else’s content for your digital media production, cautions on the use of social media, and the steps that need to be taken by stations to avoid liability for user-generated content (see our articles here and here on user-generated content).
When I have given various forms of this presentation over the years, many broadcasters and media companies ask why they should be concerned about these issues, as they have operated in the digital media world for a couple of years, and never faced a problem occasioned by any of their online content. When asked that question, I often think about how new digital media still is. As set out in the slides, many of the biggest players in the industry – Pandora, YouTube, Netflix, etc. – are all about ten years old, or less. As the biggest digital media players are less than a decade old, rightsholders have taken their time to ramp up their enforcement efforts. But in the last 2 or 3 years, we are seeing more and more activity by rightsholders moving to protect their content when it is used without permission online – whether it be music, trademarks or even pictures. Photographers have become very active in pursuing website operators who have posted pictures, often found elsewhere on the Internet, without permission from the photographer or other copyright holder of that photo (see our article here). Patent holders, too, are more active chasing perceived infringers, making it more and more important for media companies to assure that they get assurances of rights protections through indemnifications in contracts from technology providers (see our articles here and here). Rightsholders of all types are more active, and more and more legal issues are arising from online content and operations – so be careful with all of your operations, and your digital operations in particular, to avoid potential problems.