Intellectual Property

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  • The NAB and SoundExchange filed with the Copyright Royalty Board a proposed settlement of the pending litigation over the 2026-2030
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Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s college basketball tournaments.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your promotions or advertising, as well as an increasingly important development that should be considered when considering whether to accept advertising.

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 in January on the use of Super Bowl trademarks (see here) and my 2024 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.”  Presumably, to avoid this issue, some advertisers have used “The Big Game” or “It’s Tournament Time!”
  • 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 due to language on the tickets prohibiting their use for such purposes.
  • 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 that are 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 2022 [Name of Team] success in the NCAA tournament!”

There is a common pitfall that is unique to the NCAA, namely, basketball: tournament brackets used by advertisers, in newspapers or other media, or 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 and 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.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s most recent Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament. Trademark law allows you to make references to trademarked terms in news or informational programming where you convey information about those trademarked activities.  But these references should not imply any association between the station (or any sponsor who does not in fact have the rights to state that they are a sponsor) and the NCAA or the tournament (e.g., don’t say that you are the March Madness station in Anytown unless you in fact have the rights from the NCAA to say that). Continue Reading The More Things Change, the More They Remain the Same:  Risks of Using or Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2025 Update – Part II

Each year, as the NCAA basketball tournaments get underway, my colleague Mitch Stabbe highlights the trademark issues that can arise from uses of the well-known words and phrases associated with the games in advertising, promotions, and other media coverage. Here is Part I of his review. Look for Part II tomorrow.

This is my tenth annual column for the Broadcast Law Blog on the subject of the potential pitfalls to broadcasters in using the NCAA’s FINAL FOUR and other trademarks or accepting advertising that use the marks.  I began last year’s post with the comment that the last few years had been filled with changes in college sports.  I also noted that the NCAA’s hard line against unauthorized uses of FINAL FOUR or its other marks had not changed.

As will be discussed below, looking back over the last ten years, it is clear that the value of the NCAA’s basketball tournament rights has, however, greatly changed, which helps explain the enduring efforts to challenge unauthorized uses of its marks.  Thus, broadcasters, publishers and other businesses need to continue to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Final 4®, Women’s Final Four®, Elite Eight®, Women’s Elite Eight®, Road to the Final Four® and The Read 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.  However, the NCAA has a license to use the mark and has federal registrations for NCAA Sweet Sixteen®and NCAA Sweet 16®.Continue Reading The More Things Change, the More They Remain the Same:  Risks of Using or Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2025 Update – Part I

The Copyright Royalty Board this week published notice in the Federal Register that SoundExchange is auditing two broadcast companies who are streaming their signals online to assess compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. A notice was published last month indicating an audit of five other broadcast companies.  Notices of audits are annual events.  But, as the number of broadcasters selected for audits this year is higher than in past years, we thought that we should republish some of the observations that we have made in the past about these audits. 

SoundExchange may conduct an audit of any licensee operating under the statutory licenses for which it collects royalties.  Such audits cover the prior three calendar years in order to verify that the correct royalty payments have been made (the notice issued this week audits the named broadcasters for 2022-2024, while the audits announced last month were filed in late 2024 and are for the years 2021-2023). The decision to audit a company is not necessarily any indication that SoundExchange considers something amiss with that company’s royalty payments – instead SoundExchange audits a cross-section of services each year (see our past articles about audits covering the spectrum of digital music companies who have been subject to these audits – here, here, here, here and here).  Continue Reading Copyright Royalty Board Announces SoundExchange Audits of Broadcast Companies Streaming Their Signals – How Do These Audits Work?

In the United States, performing rights in musical compositions (or “musical works” as the Copyright Act refers to them – the words and music of a song) are generally licensed by a “performing rights organization” or a “PRO.”  The U.S., unlike most countries where there is a single organization that collects these royalites, has multiple such organizations.  The recent doubling in the number of PROs triggered the Copyright Office to initiate a Notice of Inquiry last week requesting public comment on issues related to these organizations.  What are the issues that led to this inquiry? 

As set out in the Notice, in the U.S., performance rights in musical compositions have for over 80 years been licensed by three PROs – ASCAP, BMI, and SESAC.  Yet, since 2013, three new PROs have begun (GMR, PRO Music, and AllTrack).  These new PROs are not all equal. GMR has compiled a roster of songwriters who wrote many well-known songs in many different musical genres, and it has aggressively pursued royalties for the music in their repertoire – see, for instance, our articles here and here on their aggressive efforts to compel the radio industry to pay royalties.  PRO Music, while it has sought to receive licenses from various businesses, is a newer organization with music that appears to be concentrated in certain musical genres.  AllTracks is the newest of the PROs and, at this time, their licensing strategy remains to be seen. 

With at least six PROs representing composers of musical works in existence, Congress has received complaints that businesses using music have been confused by demands for royalty payments from these new organizations, accompanied by threats of lawsuits if royalties are not paid.  The Notice of Inquiry does not even note that the landscape is even more complicated, as there are additional PROs claiming rights in the underlying compositions in spoken word recordings – see our article here – and, from time to time, PROs arise that purportedly represent certain foreign-language recordings.  There is, no doubt, confusion among those who publicly perform music and need to be licensed to play that music about who they have to pay, and what these users are getting when they pay their royalties. Continue Reading Copyright Office Commences an Inquiry into the Proliferation of Performing Rights Organizations – Looking at the Complexity of Licensing Musical Works in the United States

  • Payola on broadcast stations suddenly was in the news this past week.  Early in the week, Senator Marsha Blackburn (R-TN)
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For years, we have warned about the need to license music in podcasts – and how such licenses need to be obtained directly from copyright holders.  We’ve noted demand notices sent to podcasters causing those podcasters to pull their programs from various distribution platforms (see, for instance, our articles here and here).  We warned that, as podcasts are on-demand performances and are permanently “fixed” with other audio, the public performance rights given by the licenses that broadcasters and some other services obtain from ASCAP, BMI, SESAC, GMR, and even SoundExchange, are insufficient to cover broad uses of music in podcasts (see, for example, our articles here and here).  A Press Release yesterday from NMPA (the National Music Publishers Association that represents publishing companies that generally hold the copyrights in musical works – the musical compositions that provide the word and music in a song) announces that the organization has sent a take-down notice to Spotify asking it to remove from podcasts hosted by Spotify “thousands of unlicensed uses of NMPA members’ works.”  The Press Release indicates that over 2,500 notices have been sent, and that more are on the way.

This action should reinforce our concerns about the use of unlicensed music in podcasts.  But, contrary to the suggestion that the NMPA letter makes that licensing “is not hard to do,” for many podcasters, it is in fact hard.  There is no central organization, like the PROs or SoundExchange, that provides blanket licenses that cover all music uses in podcasts.  A podcaster who wants to use a popular song in a podcast has to find the copyright holder (or, more frequently, the copyright holders) to both the sound recording (the artist who recorded the music or their copyright holder, often the record company) and to the musical work (the composer or composers and lyricists or their publishing companies, which normally hold the copyrights) and get their permission to include the song in the podcast – most often at a price.  This often involves significant research to find the proper rightsholders. Continue Reading NMPA Calls for Takedowns of Spotify Podcasts Using Unlicensed Music – A Reminder to Podcasters of the Perils of Music in Their Productions

Last week, U.S. Senators Marsha Blackburn (R-Tenn.), Alex Padilla (D-Calif.), Thom Tillis (R-N.C.), and Cory Booker (D-N.J.) introduced the American Music Fairness Act (see their Press Release for more details), with a companion bill to follow in the House.  If adopted, this legislation would impose a new music royalty on over-the-air radio stations.  The royalty would be payable to SoundExchange for the public performance of sound recordings.  This means that the money collected would be paid to performing artists and record labels for the use of their recording of a song.  This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR, which are paid for the performance of the musical composition – the words and music to a song. This new legislation is virtually identical to that introduced in the last Congress (see our article here), and is another in a string of similar bills introduced in Congress over the last decade.  See, for instance, our articles here, here, here and here on previous attempts to impose such a royalty.

As in the version of the bill introduced in the last Congress, in an attempt to rebut arguments that this royalty would impose an unreasonable financial burden on small broadcasters, the legislation proposes relatively low flat fees on small commercial and noncommercial radio stations, while the rates applicable to all other broadcasters would be determined by the Copyright Royalty Board – the same judges who set internet radio royalties payable to SoundExchange by webcasters, including broadcasters for their internet simulcasts.  Under the bill, the CRB would review rates every 5 years, just as they do for webcasting royalty rates.Continue Reading It’s Back!  American Music Fairness Act Proposing New Music Royalties for Over-the-Air Broadcasting Introduced in the New Congress

  • FCC Chairman Carr sent a letter to NPR and PBS announcing that he has asked the FCC’s Enforcement Bureau to
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Mitchell Stabbe, our resident trademark law specialist, today takes his annual look at the legal issues in Super Bowl advertising and promotions (see some of his past articles here, here, and here).  Take it away, Mitch:  

As a life-long fan of the Baltimore Ravens (the life of the Ravens, not my life), my interest in the Super Bowl XVII has waned a bit.  The opposite is true for those who seek to profit from the playing of the game.  Accordingly, following are updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  But, first, a trivia question.  Who won Super Bowl I.  (Answer at end)

The Super Bowl means big bucks.

There are currently four primary television networks that broadcast and stream NFL games in the United States (CBS/Paramount+, Fox, ABC/ESPN/ESPN+ and NBC/Peacock).  It is estimated that, with the new contract which took effect last year, each will pay the NFL an average of over $2 billion per year for those rights through 2032, including the right to broadcast the Super Bowl on a rotating basis.

The investment seems to pay off for the networks.  Reportedly, it will cost more than $8 Million for some of the 30-second spots during this year’s Super Bowl broadcast, up from last year.  It has also been reported that last year’s game brought in advertising revenue totaling more than the $600 M from the prior year (with as much as an additional $60 million from ads run when last year’s game went into overtime).  These figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an 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 mark or the game.  Accordingly, with the coin toss almost upon us, advertisers should take special care before publishing or engaging in advertising or other 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 phrases “Final Four” or “March Madness” in connection with the annual NCAA Basketball Tournament.)Continue Reading 2025 Update on Super Bowl Advertising and Promotions