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. …
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.…
Recently, the Radio Music License Committee sent out a memo to broadcasters about a July 8, 2019 SoundExchange payment deadline for pre-1972 sound recordings. As with everything in copyright law, the issues surrounding pre-1972 sound recordings are complicated, and the RMLC notice, while seemingly straightforward, still resulted in our receiving lots of questions. These questions may have been compounded because of notices sent to broadcasters back in April about another filing deadline concerning these recordings which caused much consternation for what was, for most broadcasters, a matter of little concern. For most broadcasters, neither of these dates are of particular concern unless the broadcaster has been identifying pre-1972 sound recordings and not paying SoundExchange royalties when those songs are streamed, and we understand that most broadcasters have in fact been paying SoundExchange for these recordings. But let’s try to explain what is going on in a little more detail.
First, let’s look at the basics. Sound recordings (the recording of a particular band or singer performing a song) were originally not covered by federal copyright law. The law provided protections for “musical works” (i.e. the musical composition, the words and musical notes of the song), but the mere recording of that work was initially not seen as a creative work. It was thought of more as a mechanical rendering of the real creative work – the underlying song. So when recordings came to have real value in the first half of the last century, recording artists had to rely on state laws to prevent other people from making and distributing copies of their recordings. Laws against what we would refer to as bootlegging or pirating of recordings were passed in most states, and lawsuits against bootleggers would be brought under these state laws. It was not until 1972 that Congress, through an amendment to the Copyright Act, recognized that the recordings were themselves creative works entitled to copyright protection. But that amendment did not fully make all pre-existing recordings subject to the Copyright Act, instead leaving most sound recordings first recorded in the United States prior to the adoption of the amendment to the Act in February 1972 subject to state laws until 2067.…
This week, the lawsuit brought by the Radio Music License Committee (RMLC) against new performing rights organization GMR (Global Music Rights) for alleged violations of the antitrust laws was determined by a court in Pennsylvania to have been brought in the wrong place – and transferred to a court in California. This case has been on hold for well over two years while this procedural question was ironed out. Now that the case has been transferred to California, the litigation that has been on hold while the jurisdictional issue was resolved can begin – but don’t expect quick results as these complicated cases can take years to resolve. What is involved in this case?
Back in 2016, when RMLC concluded that it was not likely to reach a negotiated royalty rate for radio’s use of the musical compositions controlled by GMR songwriters and publishers, it brought the Pennsylvania court action. In that action, it argued that the rates that GMR wanted were an abuse of the market power that GMR was able to exercise by banding these songwriters together and offering a license to radio stations on an all-or-nothing basis (see our articles here and here for more on the initial suit). As it had done successfully with SESAC (see our article here), and as has been the case for decades with ASCAP and BMI, RMLC had hoped to have the court declare that GMR’s unrestrained royalty demands were contrary to the antitrust laws, and that some limits should be imposed on those rates. The RMLC suit against GMR was brought in the same Pennsylvania court in which RMLC had sued SESAC, which led to the settlement subjecting SESAC rates to arbitration if the parties could not voluntarily agree on rates (and the arbitration process ultimately resulted in significantly lower rates for commercial radio than SESAC had previously received – see our article here on the results of the arbitration).…
Alternate Title: March Madness Trademarks: It’s
March Spring and You Do Not Want to Make the NCAA Mad Angry at You
As we have previously reported, the National Collegiate Athletic Association (NCAA) is very serious about taking action against anyone who may try to trade off the goodwill in its March Madness marks — even if the NCAA’s actual marks are not used. For example:
- Readers may recall that the NCAA filed a trademark infringement action in 2017 against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.” The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case. The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55. In May 2018, the Court awarded attorneys’ fees in the amount of $220,998.05.
- The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising. (The case was settled.)
- Even schools that are part of the NCAA are not immune from claims of infringement. Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered. (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)
These actions illustrate the level of importance that the NCAA places on acting against the use of trademarks which seek to create an association with its annual Collegiate Basketball Tournament. Clearly, such activities continue to carry great risks. Accordingly, following is an updated version of our prior blog posts on this subject.
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With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark. March Mayhem® is also registered to the NCAA, which is currently seeking to register March to the Madness.
The NCAA Aggressively Defends Against Unauthorized Use of its Trademarks
The NCAA states that $844.3M of its annual revenues derives from the licensing of television and marketing rights in the Division I Men’s Basketball Tournament. Moreover, its returns from the tournament have historically grown each year. Most of this income comes from broadcast licensing fees. It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers. As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks. Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license. Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.…
In the last few weeks, the press has been buzzing with speculation that the Department of Justice is moving toward suggesting changes in the antitrust consent decrees that govern the operations of ASCAP and BMI. Those consent decrees, which have been in place since the 1940s, among other things require that these Performing Rights Organizations treat all songwriters alike in distributions based on how often their songs are played, and that they treat all services alike with users that provide the same kind of service all paying the same rate structure. Rates are also reviewed by a court with oversight over the decrees when the PROs and music services cannot come to a voluntary agreement to arrive at reasonable rates. The decrees have also been read to mean that songwriters, once part of the ASCAP or BMI collective, cannot withdraw with respect to certain services and negotiate with those services themselves while still remaining part of the collective with respect to other music users (see, e.g., our articles here and here about the desires of certain publishing companies to withdraw from these PROs to negotiate directly with certain digital services while still remaining in these PROs for licensing broadcasting and retail music users).
With this talk of reform of the consent decrees, Congress, particularly the Senate Judiciary Committee under the leadership of Senator Lindsey Graham, has reportedly stepped in, telling DOJ not to move to change the consent decrees without giving Congress the chance to intervene and devise a replacement system. In fact, under the recently passed Music Modernization Act, notice to Congress is required before the DOJ acts. Already, both the PROs and user’s groups are staking out sides. What are they asking for?…
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…
With the Copyright Royalty Board now in the early stages of the next proceeding to consider webcasting royalties (see our article here) as well as other proceedings including the distribution of cable and satellite television royalties to TV programmers (see these CRB notices), the Chief Judge of the CRB, Suzanne Barnett, announced her…
With the reopening of the Federal government (at least for the moment), regulatory deadlines should begin to flow in a more normal course. All of those January dates that we wrote about here have been extended by an FCC Public Notice released yesterday until at least Wednesday, January 30 (except for the deadlines associated with the repacking of the TV band which were unaffected by the shutdown). So Quarterly Issues Programs lists should be added to the online public file by January 30, and Children’s Television Reports should be submitted by that date if they have not already been filed with the FCC. Comments on the FCC’s proceeding on the Class A AM stations are also likely due on January 30 (though the FCC promised more guidance on deadlines that were affected by the shutdown – such guidance to be released today).
February will begin with a number of normal FCC EEO deadlines. Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees need to include in their public files by February 1 the Annual EEO Public Inspection File Reports. TV stations in New Jersey and New York in Employment Units with 5 or more full-time employees also need to file their FCC Form 397 Mid-Term EEO Reports. While the FCC appears ready to abolish that form (see our article here), it will remain in use for the rest of this year, so New Jersey and New York TV stations still need to file. Note that the FCC considers an “employment unit” to be one or more commonly controlled stations serving the same general geographic area and sharing at least one common employee.…