Intellectual Property

Subscribe to Intellectual Property via RSS

The use of photographs on websites continues to be an issue. According to trade press reports, lawsuits were filed against two broadcasters for the unauthorized use of photos on websites, though one suit was quickly dismissed as the named broadcaster in fact had purchased rights to the photos through Getty Images, a clearance house for the rights to use photographic images. But the filings of these lawsuits, along with other suits we wrote about here filed a little over a year ago, highlight the concerns that any company should have about the photos that are found on their websites. I highlighted these issues in my digital media presentation for broadcasters, which I wrote about here just two weeks ago.

Photos that are found on the Internet cannot just be copied and posted to your own website without getting permission from the copyright owner. Contrary to what some might think, unless necessary permissions are obtained, everything on the Internet is not free to exploit on your own site. I know of many broadcasters who have received demand letters from the owners of photographs that have been copied from some website and re-used on the broadcaster’s site without permission. Many have settled with the copyright holder to avoid the fate of these broadcasters who were recently sued – so take these demand letters seriously if you receive one.
Continue Reading Beware of Using Photos on Your Website – Make Sure that You Have the Rights Before You Post

Adele’s decision to not stream her new CD “25” on services like Apple Music and Spotify has been the talk of the entertainment press pages – like this article from the New York Times.  These articles make it sound like, if you listen to any Internet music service, you’ll not hear a song from the new record.  But, in fact, if you listen to an Internet radio service, like a Pandora, iHeart Radio, Accuradio, the streams of over-the-air radio stations, or any of the myriad of other “noninteractive services” that are available online, you will hear music from 25.  The legal distinctions that allow these services to play Adele’s new music is often not recognized or even acknowledged by the popular press.  Why the difference?

As we’ve written before in connection with music from the Beatles (see our articles here and here), the difference deals with how music is licensed for use by different types of digital music services.  On-demand or “interactive” audio services, like Spotify and Apple Music or the recently in-the-news Rdio, obtain music licenses through negotiations with the copyright holders of the sound recordings – usually the record labels.  These are services where a listener can specify the next track that he or she will hear, or where the listener can store playlists of music they have selected, or even hear on-demand pre-arranged playlists with the tracks in the playlist identified in advance by the service.  If the record labels and the service can’t come to terms for the use of music by one of these interactive services, then the music controlled by the label does not get streamed.  Often, these negotiations can be lengthy, witness the delay of over a year from when Spotify’s announced its launch in the US and when that launch actually took place, because of the complexity and adversarial nature of these negotiations.   In some cases, major artists, like Adele, and before her Taylor Swift and, for a long time, bands like the Beatles and Metallica, had agreements with their labels that gave them the rights to opt out of any deal that their labels did with these audio services.  So, if an artist like Adele can opt out of being played by a service like Spotify, why is she being streamed by online radio? 
Continue Reading Adele’s New Record is Not on Online Streaming Services – Except Where It Is – The Difference Between Interactive and Noninteractive Streaming

What legal issues should a broadcaster be concerned about when expanding its use of digital media?  Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media.  While this presentation was made to college broadcasters, most of the issues discussed…

November is another of those months with no regular filing obligations – no EEO public file and Mid-Term reports, no noncommercial ownership reports, and no quarterly issues programs lists or children’s television reports. EEO public file reports and noncommercial station ownership reports, being tied to renewal dates, will be back in December. See our Broadcaster’s Calendar, here, for information about the states where stations have such obligations. For all commercial radio and TV stations, November also means that they should be completing their Biennial Ownership Reports, which are due on December 2 (extended from the November 1 due date by FCC action noted, see our article here). Those reports submit a snapshot of broadcast station ownership as of October 1, so they can be filed at any time in November.

The end of November also brings the effective date of the requirement that TV stations convert the text of their emergency alerts run in entertainment programs (like weather alerts) into speech, with that audio to be broadcast on the station’s SAP channel. See our articles here and here on that requirement.
Continue Reading November Regulatory Dates for Broadcasters – Incentive Auction and Biennial Ownership Report Preparation, Reg Fee Comments, Music Issues, Text to Speech Emergency Information and More

This week, many radio stations received a letter from SESAC, asking the stations to renew their last SESAC agreement for three years at a rate 5% lower than the rate at which they are currently paying. Sounds like a deal? But is there a catch? The SESAC letter makes clear that, by renewing the current agreement and accepting the discount, the station is agreeing that it will not be a part of any attempt by the Radio Music License Committee (“RMLC”) to negotiate a rate with SESAC. The SESAC letter has drawn a strong response from the RMLC in a letter dated today, signed by Ed Christian from Saga Communications, the Chairman of RMLC, suggesting that stations not sign the SESAC renewal requests. What is this all about?

As we wrote several months ago, SESAC and the RMLC recently settled antitrust litigation where the RMLC argued that SESAC violated the antitrust laws by charging monopoly pricing for the multiple musical compositions that it bundled together for licensing purposes, and making it virtually impossible for stations to avoid paying these royalties as SESAC did not reveal its entire catalog, and licensed music that was almost impossible to avoid playing (like the jingles in some McDonalds commercials). SESAC agreed to settle the litigation – agreeing to negotiate industry-wide deals with the RMLC, and, if such deals could not be reached through voluntary negotiations, to have its rates set by an arbitration panel. SESAC has never before had its rates subject to oversight as, unlike ASCAP and BMI, SESAC is a for-profit company and is not subject to an antitrust consent decree that includes rate review by a US District Court. Many thought that the RMLC agreement with SESAC would result in a moderation of the SESAC rates. Many broadcasters considered SESAC rates to be too high relative to the fees paid for the much larger ASCAP and BMI catalogs given the limited catalog of music that SESAC licenses. So if SESAC agreed to negotiate rates with the RMLC, why is it now writing letters suggesting that stations not participate in the RMLC negotiations?
Continue Reading Dueling Letters about SESAC Radio Station Royalties – What’s A Station to Do?

The legal issues surrounding the use of music in broadcast and digital media is one of those topics that is usually enough to make eyes glaze over.  The importance of understanding these issues is illustrated by this week’s request from the Department of Justice for more information about the rights of songwriters to authorize ASCAP and BMI (often referred to as Performing Rights Organizations or PROs) to license their works to services like radio stations and webcasters when there are multiple songwriters who may not all be members of the same rights organization.  While we try to provide some explanations of some of those issues on this Blog, I wanted to point to a couple of other resources available to address some of these issues and to, hopefully, help make some of those issues understandable.

First, I wanted to note that I’ll be moderating a panel on current music issues at the NAB Radio Show in Atlanta on Thursday afternoon (the panel is described here) featuring representatives of the NAB, RIAA, BMI, Pandora and the Copyright Office.  Hopefully, we’ll be able to unpack some of the motivations and directions of the music royalty debates that are going on in Washington DC.  For those of you not able to make that panel, and even those of you who are planning to attend, a new source of information that provides a very good summary of the many music licensing issues now being considered by Congress and the courts is a report prepared by the Congressional Research Service released last week, available here.  The report explains in relatively simple terms how music licensing works in the United States, and describes many of the current legislative and judicial issues that currently could affect that licensing.  While obviously not addressing all of the subtleties of the arguments of all of the parties to these proceedings, the report does at least give a relatively neutral summary of the arguments of the parties.
Continue Reading Understanding Music Royalties – Congressional Research Service Releases Summary of the Law, While DOJ Asks for More Comments on ASCAP and BMI Consent Decree Reform

The US House of Representatives has been looking at potential reform of the Copyright Act for some time, holding a number of hearings before the Committee here in Washington DC (see, for instance, our article here about one of those hearings). Yesterday, the Committee announced that it is taking its examination on the road, conducting a “listening tour” of the country, starting with a roundtable on music issues to be held in Nashville on September 22. The Committee’s announcement of the listening tour (available here), says that future dates and locations (and presumably topics) will be announced at a later date.   The announcement states:

America’s copyright industries – movies, television programming, music, books, video games and computer software – and technology sector are vitally important to our national economy.  The House Judiciary Committee’s copyright review is focused on determining whether our copyright laws are still working in the digital age to reward creativity and innovation in order to ensure these crucial industries can thrive.

So what are some of the issues that are likely to be considered? On the music side, there are many issues, including questions about the disparity between the payments from digital media companies made to songwriters as opposed to sound recording rights holders (see our article here), the amounts of the royalties themselves (with digital media companies finding many royalties to be too high to allow for a profitable operation while rights holders argue that they are too low to compensate creators for the decrease in the sale of music in a physical form – see our article on how the one-to-one nature of the digital performance complicates the discussion of the value of music when compared with analog performances), issues as to whether broadcasters should pay a performance royalty for sound recordings, and the question of pre-1972 sound recordings (see our last article on pre-1972 sound recordings, here). Many of these issues were addressed by the Copyright Office in its report on reform of the copyright laws as they relate to music (see our summary here). Some of the songwriter issues are also being considered by the Department of Justice in its review of the antitrust consent decrees governing ASCAP and BMI (see our article here).
Continue Reading House Judiciary Committee Begins Nationwide Listening Tour on Copyright Reform – First Roundtable on September 22 in Nashville Focusing on Music Issues

Yesterday, it was announced that the Radio Music License Committee (RMLC) settled its lawsuit with SESAC (see the press release here, and the full agreement here), where the RMLC had charged that SESAC’s practices in collecting its music royalties from the radio industry violated the antitrust laws (we wrote about the filing of the lawsuit here). While there was no admission of guilt by SESAC, it did agree that, between now and 2037, it will negotiate royalties with RMLC on an industry wide basis (up to now, SESAC could negotiate on a station-by-station basis). If RMLC and SESAC can’t agree to a royalty, the royalty rate will be set by an arbitrator – and past SESAC royalties would not have any precedential value in such proceedings (broadcasters have contended that past SESAC rates are far more, in comparison to those charged by ASCAP and BMI, then would be warranted based on the percentage of music from SESAC writers that is played on most radio stations). In subjecting SESAC to industry-wide negotiations and potential arbitration, the settlement is very similar to the deal reached in antitrust litigation between SESAC and the TV Music License Committee (about which we wrote here).

The settlement also tracks the structure of RMLC agreements with ASCAP and BMI (see our articles here and here) in that future SESAC licenses will cover broadcasters not only for their over-the-air programming, but also for their Internet streams and their HD channels (which were charged separately by SESAC for many stations). However, the agreement provides that the unitary license should not diminish the total royalties that would have been paid by the industry to SESAC if these rates were negotiated separately.   In other words, the effect of the unitary license is simply administrative convenience – everything is covered by a single license, so each station does not need multiple licenses from SESAC for its normal broadcast activities. However, unlike the ASCAP and BMI agreements, this agreement puts limits on this unified coverage for a broadcaster’s business that is outside the retransmission of the broadcaster’s over-the-air signals, excluding on-demand subscription services (presumably ruling out Rdio, in which Cumulus has an interest, from being covered by the radio license), and also excluding music-intensive custom radio, specifically ruling out Pandora and iHeartRadio from relying on this license for their online services. The agreement also says that other music users that are not primarily radio operators cannot get coverage for these other non-broadcast businesses simply by buying a radio station. What else does the agreement provide?
Continue Reading Radio Music License Committee Settles Antitrust Suit Against SESAC – What Does it Mean for the Radio Industry?

The FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any multichannel video programming distributor (i.e. cable or satellite TV) from carrying the signal of the station at the end of a retransmission consent agreement unless the station is accessible over-the-air or by Internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this Petition are due by August 14. This is an initial Petition for Rulemaking (which can be viewed here), so these comments will inform the FCC as to whether to further pursue the proposals made in the Petition through a formal Notice of Proposed Rulemaking which would be needed before a rule change.

Obviously, this petition raises controversial issues. Mediacom asserts that it is looking after the interests of consumers in being able to access television programming – and not losing that access during retransmission consent negotiations. Broadcasters, on the other hand, feel that the ability to remove their signal from an MVPD is their most effective bargaining chip in retransmission consent negotiations. Broadcasters will no doubt argue that they have the rights to their programming and, if the MVPD will not agree to terms for its carriage, the MVPD should no longer have the right to carry the programming.
Continue Reading FCC Asks for Comments on Petition for Rulemaking that Would Tie TV License Renewals to Restrictions on Blackouts after the Expiration of Retransmission Consent Agreements

Twice this morning, I was faced with the question of whether a business needs a license to play a radio or TV station on their premises, once in a story in one of the broadcast trade publications (see the article here, in the You Can’t Make This Up column toward the bottom of the article) about a gas station that thought that they got around paying ASCAP, BMI and SESAC fees by using “6 or 7” consumer radios around the station. After I saw that article, I thought that it was worth writing this article, as the difference between 6 and 7 radios could make a real difference as to whether the business needs to pay music royalties.

Broadcasters need to be careful about urging their clients to play their stations at their business locations. There are very specific rules, and if the rules are not followed, liability can result. But, as detailed below, there are some exceptions to the obligation of commercial establishments to pay ASCAP, BMI and SESAC that apply specifically to establishments that play only FCC-licensed radio or TV stations. But the details of the exceptions must be observed or there can be issues. All of the performing rights organizations have contractors who travel the country, checking out retailers, bars, restaurants, and other commercial establishments to make sure that they are following the rules. There are periodically press reports about these rights organizations seeking royalties (sometimes through legal actions) from coffee shops, nightclubs, and even farmers markets that publically perform music without signing license deals. So these commercial establishments need to know the rules about music use to avoid becoming a target. As set forth below, the rules are very specific, and broadcasters can actually benefit from the exceptions as, in the limited circumstances set out in the Copyright Act, businesses can play music from FCC licensed outlets without a license, but music from other sources could present an issue. But be careful, as there are very specific rules – and the difference between 6 and 7 radios could be a real issue.
Continue Reading Does a Local Business Need Licenses from ASCAP, BMI and SESAC to Play My Radio or TV Station on Their Premises?