For several years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL (see, e.g. our articles here and here).  It’s that time of year again, so here is an updated version of my prior posts.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years.  The investment seems to pay off for the networks.  The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers.  In addition to the sums paid to have their commercials aired (reported to be approximately $5.6 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad.  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game.  Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl.  Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament – see, for instance, our articles here and here.)
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In the last week, we have received many inquiries from radio stations that received a notice from attorneys for Global Music Rights (GMR) about document production in GMR’s litigation with the Radio Music License Committee (RMLC).  As we have written before (see, for instance, our articles here, here and here), RMLC and GMR have for several years been engaged in antitrust litigation.  RMLC is seeking to impose outside review on the rates that GMR can charge broadcasters for the public performance of the music written by the songwriters that they represent, while GMR argues that RMLC itself violates the antitrust laws by unifying competing broadcasters and preventing them from doing business with GMR.

The recent communications from GMR concern GMR’s obligation to produce documents to the RMLC’s attorneys in discovery in this litigation.  Because RMLC has not been directly involved in GMR’s dealings with radio stations over the interim license agreements (and because RMLC itself does not have copies of the interim licenses that stations entered into with GMR), RMLC’s lawyers asked GMR for the production of these licenses as part of their discovery.  Because the interim licenses contain some confidentiality language, GMR’s recent communications was to let stations know that they are planning to produce those licenses to the RMLC’s attorneys, subject to the Protective Orders that GMR attached to their messages.  These Protective Orders are designed to keep the information in those licenses out of the public record, to be reviewed only by a limited group of people including RMLC’s attorneys and expert witnesses. The GMR communications are asking broadcasters if they have objections to the production of these licenses to RMLC’s lawyers.     
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Late last month, the Ask Musicians For Music Act (the “AMFM Act”) was introduced in both the House and Senate. If enacted, the AMFM Act would impose on over-the-air broadcast radio stations a performance royalty for the use of sound recordings in their programming. This is yet another bill proposing that the current royalty that requires that digital music services pay royalties both for the use of musical compositions (as already paid by broadcasters) and the sound recording (currently paid by broadcasters only for the Internet streams of their programming) be extended to cover all over-the-air broadcasts by radio stations. Extending the sound recording performance royalty to over-the-air radio has been proposed many times before (see, for instance, our articles hereherehere and here), but this is the first time that the proposal has been advanced in the current session of Congress. Similar bills were introduced last session before the 2018 elections but were never brought to a vote in either the House or the Senate – see our post here.

As we’ve written before, the royalties that broadcasters pay to ASCAP, BMI, SESAC and even GMR are paid to the composers of music (and the copyright holders in the musical compositions, usually a publishing company). Sound recording royalties are paid to the performers (and the copyright holders in the performances, usually the record labels). These are the royalties that broadcasters pay to SoundExchange when they stream their programming on the Internet. Historically, in the US, broadcasters and other businesses who play sound recordings are not subject to a performance royalty for the use of those sound recordings (except for digital audio music services who do pay sound recording performance royalties in the US), though such royalties are paid in many other countries in the world. This bill proposes to make broadcasters pay for their over-the-air performances. Under the provisions of the bill, the Copyright Royalty Board would set these royalties along with those paid by digital audio services, and the royalties would be paid to SoundExchange.
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Global Music Rights (most commonly known as GMR), the newest of the major performing rights organizations (PROs) licensing public performances of musical compositions, filed a lawsuit against radio operator Entravision Communications earlier this month. The suit alleges that Entravision failed to pay GMR royalties for the public performance of hundreds of compositions written by GMR songwriters. According to the complaint, GMR sent Entravision several letters over the last few years, notifying Entravision that it was playing GMR music and asking that it enter into a license to play that music. When no license was signed or even requested after these multiple requests, the lawsuit was filed.

The suit seeks $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e. damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. While Courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages have been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unlimited downloads of unlicensed music, but from a publicly traded radio company presumably already paying other performing rights organizations for the use of music.
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The Department of Justice’s Antitrust Division is, as we reported here and here, conducting a review of the consent decrees which govern ASCAP and BMI. Comments were filed in August, and those comments have now been posted to the Division’s website and are available for review here (they are organized alphabetically in groups

This week, the Radio Music License Committee issued a press release that states that Global Music Rights (“GMR”), the new performing rights organization that collects royalties for the public performance of songs written by a number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others) has agreed to extend their

Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.

Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5.
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In a very important proceeding we summarized here, the Department of Justice’s Antitrust Division is reviewing the antitrust consent decrees that govern ASCAP and BMI – the decrees that require that these performing rights organizations treat similarly situated licensees (and artists) in the same way and which allow a Court to review the reasonableness

July is an important month for regulatory filings – even though it is one of those months with no FCC submissions tied to any license renewal dates. Instead, quarterly obligations arise this month, the most important of which will have an impact in the ongoing license renewal cycle that began in June (see last month’s update on regulatory dates, here).  Even though there are no renewal filing deadlines this month, radio stations in Maryland, Virginia, West Virginia and DC must continue their on-air post-filing announcements on the 1st and 16th of the month.  On these same days, pre-filing announcements must be run by radio stations in North and South Carolina, who file their renewals by August 1.  Stations in Florida and Puerto Rico, who file on October 1, should be prepared to start their pre-filing announcements on August 1.  See our article here on pre-filing announcements.

Perhaps the most important date this month is July 10, when all full power AM, FM, Class A TV and full power TV stations must place their quarterly issues/programs lists in their online public inspection files.  The issues/programs list should include details of important issues affecting a station’s community, and the station’s programming aired during April, May, and June that addressed those issues.  The list should include the time, date, duration and title of each program, along with a brief description of each program and how that program relates to a relevant community issue.  We have written many times about the importance of these lists and the fact that the FCC will likely be reviewing online public files for their existence and completeness during the license renewal cycle – and imposing fines on stations that do not have a complete set of these lists for the entire license renewal period (see, for instance, our articles here, here and here).  So be sure to get these important documents – the only official documents that the FCC requires to show how a station has met its overall obligation to serve the public interest – into your online public file by July 10. 
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The Department of Justice’s Antitrust Division yesterday announced that it was starting a review of the ASCAP and BMI antitrust consent decrees that govern the United States’ two largest performing rights organizations for musical compositions (referred to as the “musical work”). The DOJ’s announcement of the initiation of the examination of the consent decrees poses a series of questions to which it invites interested parties – including users, songwriters, publishers and other interested parties – to file comments on the decrees, detailing which provisions are good and bad and, more broadly, whether there is a continuing need for the decrees at all. Comments are due on July 10.

This re-examination of the decrees has been rumored for many months. Back in March, we wrote about those rumors and the role that Congress may play in adopting replacement rules should the DOJ decide to fundamentally change the current provisions of the consent decrees. The DOJ itself just recently looked at the consent decrees, starting a review only 5 years ago with questions very similar to those it posed yesterday (see our post here on the initiation of the last review 5 years ago). That review ended with the DOJ deciding that only one issue needed attention, whether the decrees permitted “fractional licensing” of a song. We wrote about that complex issue here. That issue deals with whether, when a PRO gives a user a license to play a song, that user can perform the song without permission from other PROs when the song was co-written by songwriters who are members of different PROs. The DOJ suggested that permission from one PRO gave the user rights to the entire song, an interpretation of the decrees that was ultimately rejected by the rate courts reviewing the decrees (see our article here).   So, effectively, the multi-year review of the consent decrees that was just concluded led nowhere. But apparently the DOJ feels that it is time to do it all again. To fully understand the questions being asked, let’s look at what the consent decrees are, and why they are in place.
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