Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Note from David Oxenford: Seth Resler of Jacobs Media yesterday wrote on his Connecting the Dots blog about the ease of synthesizing the voice of a celebrity, and the temptation to use that replicated voice in an on-air broadcast. Last week, in an article on policy issues raised by AI, we mentioned that some states have adopted laws that limit the use of synthesized media in political advertising. In Seth’s article, he quotes Belinda Scrimenti of my law firm pointing out some of the legal issues that arise from using a synthesized voice even in entertainment programming, and especially in commercials. Belinda has expanded on her thoughts and offers the following observations on the use of synthesized personalities on radio or TV.
The advent of artificial intelligence poses interesting and often challenging legal issues because the law is still “catching up” with the technology. Consider the impact of new AI platforms that can learn a person’s voice, then speak whatever text you submit to it in that person’s voice. If a user submits 60 seconds of Taylor Swift audio to the AI platform, the platform can use this sample to learn to “speak” as Taylor Swift, and the user can then have “her” say whatever the user wants.
While some states are considering or have adopted some restrictions on impersonation by AI, many existing legal concepts applied with traditional celebrity impersonation claims are already applicable to this kind of synthesized celebrity impersonation. Thus, if the use by a broadcaster of Taylor Swift’s voice (either taped and edited or impersonated by a human) would violate the right of publicity that is already found in the law of most states, the use of her AI voice would also violate these same rights.
Artificial intelligence has been the buzzword of the last few months. Since the public release of ChatGPT, seemingly every tech company has either announced a new AI program or some use for AI that will compete with activities currently performed by real people. While AI poses all sorts of questions for society and issues for almost every industry, applications for the media industry are particularly interesting. They range from AI creating music, writing scripts, reporting the news, and even playing DJ on Spotify channels. All these activities raise competitive issues, but there have also begun to be a number of policy issues bubbling to the surface.
The most obvious policy issue is whether artistic works created by AI are entitled to copyright protection – an issue addressed by recent guidance from the Copyright Office suggesting that a work created solely by a machine is not entitled to protection, but that there may be circumstances where a person is providing sufficient guidance to the artificial intelligence such that the AI is seen as more of a tool for the person’s creativity, and that person can claim to be the creator of the work and receive copyright protection.
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 advertisements or broadcasting of advertising, as well as one more issue that should be
With Selection Sunday this weekend, the 2023 NCAA Collegiate Basketball Tournament is about to begin. As faithful readers of this blog know, broadcasters, publishers and other businesses need 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®, 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®. (It also has a registration for SPRING MADNESS®in connectionwith its soccer tournaments.)
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 and Advertising: Use of NCAA Trademarks (2023 Update – Part 1)
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
There are normally a host of regulatory obligations at the beginning of February, but because of technical issues with the FCC’s online public file and LMS systems, many February 1 dates, as well as some January regulatory deadlines, have been extended to late February.
Due to technical problems that affected FCC filings throughout the month of January, the FCC last week issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems that were due in late January and early February. The new deadline for these filings is February 28, 2023. This new deadline applies to TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1). Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline has now been further extended to February 28 by last week’s Public Notice. Note that the Public Notice is broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28. Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as the intermittent problems that have plagued the systems could persist for some time and make meeting even the extended deadline problematic, especially if you wait for the last minute to try to file. For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on this subject.
February 28 is the deadline by which EAS participants must file their EAS Test Reporting System (ETRS) Form One. Filing instructions are provided in the Public Notice issued by the FCC earlier this month (see also our articles here and here). All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions: Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point) are not required to register and file in ETRS. Carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
The Copyright Royalty Board yesterday published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027. The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters. The Corporation for Public Broadcasting agreed to one set of rates paid to cover NPR and PBS affiliates. The NRB (the religious broadcasters’ organization) has a Noncommercial Music License Committee that agreed to another set of rates that apply to non-NPR radio stations not owned by colleges and universities, setting out rates that these noncommercial stations pay to each of these rights collection agencies. For these radio stations, the rates are based on the population served by each noncommercial station. College and university-owned stations can take advantage of a third set of rates, based primarily on the number of students in the school with which the station is affiliated. Comments and objections, if any, to these proposed rates are due on or before February 27, 2023.
Commercial broadcasters have royalty rates that are to be paid to these performing rights organizations (or “PROs”) set not through the Copyright Royalty Board but instead through varying processes. ASCAP and BMI are subject to antitrust consent decrees (see our articles here and here on arguments about those decrees). The decrees provide that, if the PRO cannot reach an agreement with representatives of the commercial radio industry (usually the Radio Music License Committee – see our article on RMLC here – although commercial religious broadcasters also negotiate rates with these entities through the NRB), a US District Court judge in New York will hold a trial, acting as a “rate court” to determine the amount for reasonable rates. ASCAP and BMI are currently negotiating with the RMLC on new rates for commercial broadcasters. SESAC is also subject to antitrust settlements with both the RMLC and the TV Music License Committee. If SESAC and the committees cannot reach agreements, an arbitration panel sets the rates (see our articles here and here on radio rates set as a result of this process). After prolonged litigation with GMR to have their rates reviewed in some manner, the RMLC last year dropped its lawsuit seeking that relief and GMR now has no oversight as to the rates it charges (see our article on the GMR license that resulted). Noncommercial broadcasting, however, under Section 118 of the Copyright Act, has its PRO obligations set by the Copyright Royalty Board and, like this year, the result is almost always a settlement between the parties (even though, theoretically, the Board could hold hearings to set the rates if the parties had not agreed to the rates).
