The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.
Continue Reading With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

The Copyright Office this week granted a request from the Copyright Royalty Board for more time to decide on the royalties to be paid to SoundExchange for the public performance of sound recordings by webcasters, including broadcasters who simulcast their programming on the Internet.  As we wrote in July, the CRB decision on

A few weeks ago, the news was abuzz with the controversy over an Australian law that would make social media companies and even search engines pay for their making available content originating with traditional media outlets.  While the controversy was hot, there were articles in many general interest publications asking whether that model could work outside Australia – and perhaps whether such a bill could even be adopted in the US.  What has received far less notice in the popular press was a US version of that bill that was recently introduced in Congress to address some of the same issues.  The Journalism Competition and Preservation Act of 2021 was not introduced in response to the Australian law, but instead it is an idea that pre-dated the overseas action.  Versions of the US bill have been introduced in prior sessions of Congress, though it never before gained much attention.  But this year’s version has been introduced in both the House and the Senate, has already been the subject of a Congressional committee hearing, and has gained support (including from the National Association of Broadcasters and even the tech company Microsoft).

The intent of these bills, and other similar legislation considered across the world, is to open a new revenue stream for traditional media outlets which cover local news – outlets that have been hit hard by the online media revolution over the last 25 years.  As we have noted in other contexts (see for instance our articles here and here), as huge digital media platforms have developed in this century, these platforms have taken away over half the local advertising revenue in virtually all media markets – revenues that had supported local journalism.  The perception is that this has been done without significantly adding to the coverage of local issues and events in these markets.  We certainly have seen the economics of the newspaper industry severely impacted, with many if not most newspapers cutting staff and local coverage, and even how often the papers are published.  Broadcasting, too, has felt the impact.  Many legislators across the globe have come to the conclusion that these digital platforms attract audiences by featuring content created by the traditional media sources that have been so impacted by online operations.  To preserve and support original news sources, various ways in which the content creators can be compensated for the use of their works, such as the legislation in the US and Australia, are being explored.  We thought it worth looking at proposed legislation in the US and comparing it to the more extensive legislation introduced in Australia, and to highlight some of the issues that may arise in connection with such regulatory proposals.
Continue Reading Making the Tech Giants Pay to Use Traditional Media News Content – Looking at the Legislative Issues

After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

With Dr. Seuss recently in the news for the decision of his estate to pull from publication certain books that were racially insensitive, we thought that we would go back and look at another decision involving the good doctor that we did not get around to reviewing when it came out at the end of last year – the decision that a book, Oh, The Places that You Will Boldly Go, a mash-up of Dr. Seuss and Star Trek, was an infringement on the Seuss’ copyrights and did not qualify for fair use treatment.  Who knew that Dr. Seuss would play such a prominent role in legal and public policy!  As we summarize below, and as we have written before (see for instance our articles here and here), fair use is not a simple concept or one that is as broadly applicable as many in the media industry seem to think.

The decision from the 9th Circuit Court of Appeals in the Boldly Go case overturned a lower court opinion finding the book to be a parody of the original Seuss work (Oh, the Places You Will Go), and thus entitled to fair use protection.  The 9th Circuit found that Boldly Go was not a fair use, but instead an improper exploitation of the copyrighted work.  The Court reached its decision by reviewing the factors set out in Section 107 of the Copyright Act that are required for a fair use analysis.  This decision is one which all media companies should review carefully, as it makes clear that fair use is not as broad of a concept as apparently believed.  Importantly, fair use does not cover any use that may be an amusing adaptation of an original work.  For instance, I am often asked by radio companies whether taking a song and substituting a new set of lyrics that provide some funny commentary on some newsworthy topic is fair use.  As is evident from the analysis undertaken in the Boldly Go case, unless the “parody” is making fun of the original copyrighted work, it may well not qualify as a fair use and thus may be subject to a claim of copyright infringement.
Continue Reading Dr. Seuss and Fair Use – Just Because You Make a Funny Version of a Copyrighted Work Does Not Mean that You Will Escape an Infringement Claim

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your operations.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion earlier this year on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
    • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
  • local programming that uses any NCAA trademark as part of its name
    • Example: A locally produced program previewing the tournament called “The Big Dance:  Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament
    • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize
    • Example: even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA.
  • events or parties that use any NCAA trademark to attract guests
    • Example: a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks and prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
    • Example: “[Advertiser name] wishes [Name of Coach] and the 2020 [Name of Team] success in the NCAA tournament!”

There is one more common pitfall that is unique to the NCAA Basketball:  tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket or corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.  Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.
Continue Reading March Madness Trademarks:  Tips To Avoid A Foul Call from the NCAA (2021 Update – Part 2)

Part 1 of my 2020 annual update on the use of trademarks associated with the NCAA Basketball Tournament was published on the same day that the NCAA announced it was cancelling the tournament due to the pandemic.  Fortunately for all concerned (the players, fans, the NCAA and the broadcasters), it appears that the tournament will proceed as scheduled, with the first men’s games beginning on March 18 and the first women’s games beginning on March 21.  Accordingly, this discussion should hold greater interest than it did last year.

So, with the tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament, including the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser known marks, including March Mayhem®, March Is On®, Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four®, and NCAA Fast Break®.

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.
Continue Reading March Madness Trademarks: Tips To Avoid A Foul Call from the NCAA (2021 Update – Part 1)

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Global Music Rights (GMR) has offered commercial radio stations an extension of their interim license for the public performance of

Global Music Rights, one of the newest performing rights organization licensing the public performance of musical compositions, has agreed to extend its interim license with commercial radio broadcasters.  That license is set to expire at the end of March (see our article here).  This interim license has been offered and extended for the last several years to allow stations to perform GMR music while GMR litigates with the Radio Music Licensing Committee over whether GMR is subject to any sort of antitrust regulation of the rates that it sets (and GMR’s countersuit over whether the RMLC itself violates the antitrust rules as a buyer’s cartel, by allegedly organizing all the buyers of GMR’s music to hold out for a specific price).  We wrote about that litigation here.  With the pandemic, the lawsuit which should have already gone to trial is likely not going to be heard until possibly next year, as discovery in the case has been postponed until later this year.

Today, the RMLC notified radio broadcasters that GMR will again extend its interim license while the litigation plays out – but GMR wants a 20% increase in the royalties that it receives.  RMLC made clear that this is not a negotiated rate – it is one that GMR has imposed with no input from RMLC.  Stations should expect to hear from GMR about the extension by March 15.  If they do not, stations interested in the extended license should reach out to GMR.  Many stations are confused by this royalty, so we thought that we would provide some background.
Continue Reading GMR Offers to Extend Its Interim License With Commercial Radio Stations – But It Wants a 20% Increase in Royalty Payments