Intellectual Property

Subscribe to Intellectual Property via RSS

The week before last, we summarized the provisions of the Music Modernization Act as passed by the House of Representatives. The Senate is now poised to take up this legislation in a hearing scheduled by the Senate Judiciary Committee for next Tuesday, May 15. The legislation proposes, among other things, to set up a SoundExchange-like collective for the collection and payment of mechanical royalties due under Section 115 of the Copyright Act and to create a digital public performance right in pre-1972 sound recordings (ending some of the litigation that has arisen in recent years on that issue). Our summary provides more details on these issues and highlights some of the other issues addressed by this bill.

The consideration of the bill by the Judiciary Committee is the next step to the bill becoming a law. The hearing will feature representatives of several groups directly affected by the legislation – including David Israelite, the CEO of the National Music Publishers Association (NMPA represents publishing companies that usually hold the copyrights to musical compositions); Chris Harrison, the CEO of the Digital Media Association (DiMA represents digital music services like Spotify, Pandora and Apple Music); and Mitch Glazier, the President of the Recording Industry Association of America (RIAA represents the major record labels who usually own the copyrights to the sound recordings – the compositions as recorded by particular performers). Members of DiMA and the RIAA pay mechanical royalties. Members of NMPA collect those royalties. Thus, these groups are directly affected by the Music Modernization Act. Songwriters and performers, including Motown legend Smokey Robinson, will also testify at the hearing. A full list of the participants can be found on the Judiciary Committee’s website, where video of the hearing will also be available next week.
Continue Reading Senate to Hold Hearing on May 15 on Music Modernization Act

May is one of those months where there are neither deadlines for EEO Public File Reports nor for any of the quarterly filings of issues/programs lists and children’s television reports. But the lack of these routine filing deadlines does not mean that there are no dates of interest in the coming month to broadcasters and other media companies. As seemingly is the case every month, there are never times when Washington is ignoring legal issues potentially affecting the industry.

May 10 brings an FCC meeting where two items of interest to broadcasters will be considered. One is a proposal to abolish the requirement for posting licenses and other operating authorizations at a broadcaster’s control point and to eliminate the requirement that FM translators post information about the station’s licensee and a contact phone number at their transmitter sites (see our post here for more details). The second is a proposal to modify the processing of complaints about new or modified FM translators causing interference to existing stations. See our summary of that proposal here. If adopted at the May 10 meeting, these proposals will be available for public comment after they are published in the Federal Register.
Continue Reading May Regulatory Dates for Broadcasters – FCC Meeting, FM Translator and LPTV Filing Windows, Political Windows and More Consideration of Music Reforms

This week, the US House of Representatives passed the Music Modernization Act. While widely supported among many digital media companies providing on-demand subscription music services as well as by many in the music industry, the bill seemingly has not received the publicity that has been afforded to past music royalty legislation. That may be, in part, because there were few who adamantly opposed the provisions of the bill, as evidenced by a unanimous House vote – something that never would have happened had any significant portion of the music industry opposed the bill. But this moment of togetherness may be, in part, due to the somewhat limited (though nevertheless very important) issues that it addresses.

The Modernization of Music Act began as a legislative effort primarily to address the issues raised under Section 115 of the Copyright Act – the section dealing with what are often called “mechanical royalties” – the royalties paid to publishing companies for the copyright in the “musical work,” i.e. the musical composition. In other words, these royalties are paid to the copyright holder of the words and music to a song (sometimes the composer but more often a publishing company) – not to the artist who actually records that song. The provisions of Section 115 were first adopted to allow artists to record songs once a song has been recorded and publically released in the United States – to record a “cover” of the original recordings – provided that compensation set by agreement between the user and the copyright holder is paid or, absent a voluntary agreement, that a royalty set by the Copyright Royalty Board is paid to the copyright holder (see our post here on the last CRB decision on those rates). That mechanical royalty was later expanded to cover “digital phonorecord deliveries” (“DPDs”) – the making of digital copies of the musical composition made in the context of a distribution and delivery of the song to individual consumers. Through caselaw and industry practice, DPDs were interpreted to include the need for royalties not just when a digital download is made, but also when an on-demand or interactive stream of a song is delivered to a consumer.
Continue Reading House of Representatives Passes Music Modernization Act – Looking for Clarity on Mechanical Royalties, Pre-1972 Sound Recordings and Other Music Rights Issues

We wrote last summer about the substantial reductions in SESAC royalties that the Radio Music License Committee was able to achieve for commercial radio stations through a decision in its arbitration proceeding. RMLC recently sent out an email to all commercial stations that had authorized it to act on the stations’ behalf reminding them that,…

In recent weeks, I have had several calls from broadcasters asking if it was permissible to copy articles from other news sources and post them on the station website – with attribution to the original source. As I told them, posting content without permission of the copyright holder can lead to big problems. We have written about these issues in connection with the use of photos and video (see, for instance, our articles here, here and here), and recently even using embedded photos from a social media site have been called into question (see our article here). The copying of any substantial part of a news article raises the same issues as posting pictures or video found on the Internet onto your site. Such actions diminish the ability to of the content’s owner to profit from its own content. If someone can read a story on a broadcaster’s website, why would they need to go to the site of the originator of that content – even where attribution to the originating site (and even a link to that site) is given on the broadcaster’s site?

Years ago, there were many websites that would “aggregate” news by taking significant portions of news stories from other sites and make it available to the aggregator’s readers. There was a rash of lawsuits where content owners, including newspapers and others, claimed that aggregators using even a paragraph or two of the original story were infringing on their rights to their content. Content owners had real concerns about this aggregation sites, as a reader can usually get the gist of the story from the introductory paragraphs and, even when the aggregator provided a link to the full story, the readers would be far less likely to go to the full story when they had already been given its substance. Today, to avoid these lawsuits, most such news aggregators provide at most a headline (and sometimes even the headline can be creative enough to pose a copyright risk if run on an aggregator’s site – so just a generic paraphrase of that headline is often used), and at most a very brief description of the story on the originating site – a description that only directs the users of the aggregator site to the originating site and does not use any of the originating story’s language or original reporting, e.g. a statement that “you can find a good story about Virginia’s collapse in the NCAA tournament in this story” or “for more developments on latest in the personnel changes in the Trump Administration, check out this story in the Washington Post.” Using more than this kind of generic referral is a risk, and fair use is no often going to be available as a defense.
Continue Reading Using Copyrighted Content on a Website – Including News Articles and Videos – Secure the Rights!

In December, we wrote about a proceeding initiated by the Copyright Office to review the reporting obligations of cable and satellite television systems related to the statutory license that permits those systems to carry the programming of local television stations.  Systems must report information including revenue and subscriber information that allow royalties to be computed. …

Last week, a US District Court Judge in the influential Southern District of New York issued an opinion finding that the fact that a picture of New England Patriot quarterback Tom Brady that was displayed on the websites of a number of media defendants was potentially infringing – even though the photo was not copied by the website owners and hosted on their servers. Instead, the photo was “embedded” on the websites and actually came from Twitter where it was hosted on servers maintained by that company. The Judge determined that because the photo automatically showed up on the defendants’ websites when those sites were visited by members of the public and appeared to visitors to be an integrated part of their websites, the mere fact that the photo was not hosted on the servers of the defendants, but instead on the server of Twitter, was not enough to provide a defense to the claim that the defendants had displayed the content without permission of the copyright holder. The right to “display” a copyrighted work is an exclusive right given to the copyright holder under Section 106 of the Copyright Act, meaning that the copyrighted work cannot be displayed without the permission of the copyright holder. As we wrote here, here and here, there have been many cases where photographers have sued broadcasters and other media companies for posting photos on their websites or even on their social media feeds without permission.

It had been widely accepted for the last decade that website owners were safe from copyright liability if they merely embedded content that was served from another site (e.g. social media sites like Twitter or YouTube) as contrasted to actually hosting the content on the website owner’s own server. This feeling of security stemmed from a case last decade where the 9th Circuit Court of Appeals made the distinction between hosting content and merely linking to content on another site. In that case, the Perfect 10 case, the defendant hosted an image search site with thumbnail images of pictures (the thumbnails hosted on the site of the defendant), and when a visitor to the site clicked on the thumbnails, the image was expanded by launching the image on the hosting site. In that case, because the large photos that were displayed when the user clicked on the thumbnails were hosted on the plaintiff’s site, the defendant was not found to be infringing for displaying those larger photos. The Judge in last week’s case found some striking differences in the use of an embedded Twitter photo case that, she said, made clear that there should be no clear safe harbor from liability simply because the image was hosted on a site not owned by the defendants in this case.
Continue Reading Court Finds That Embedded Twitter Photo on Website May Subject Website Owner to Copyright Liability – Be Careful What You Post

On Friday, 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…

Last month, we posted some updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL.  “As Super Bowl Approaches, Advertisers Should Be Aware of The NFL’s Efforts to Protect Its Golden Goose – 2018 Update”  Now, that is behind us (for another year), it is just in time to think about these issues in the context of the Winter Olympics!

The guidance from last month’s blog addressed the following subjects:

  • Advertising that refers to the Super Bowl or other NFL trademarks;
  • Advertising that uses non-trademarked terms that will be understood by the public to refer to the Super Bowl;
  • Conducting or sponsoring events and parties for viewing the Super Bowl;
  • Sweepstakes or giveaways that use “Super Bowl” as part of its name or offer prizes that include game tickets;
  • Offering “special” coverage relating to the Super Bowl, accompanied by advertising;
  • Congratulatory advertising; and
  • Whether disclaimers will provide a defense to a claim.

The concepts advanced in that discussion apply equally to the Olympics, but the US Olympic Committee has a unique weapon in its arsenal, so there are additional considerations of which you should take note.
Continue Reading The Super Bowl is Over – Let’s Talk About the Olympics and Trademarks

Last week, the Copyright Royalty Board published a Federal Register Notice announcing that SoundExchange was auditing broadcaster Alpha Media as well as Music Choice and Google to assess their 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…