On the anniversary of the events of September 11, 2001, we should all be thankful for the work of the nation’s first responders. Broadcasters and other members of the electronic communications industries play a part in the response to any emergency – including through their participation in the Emergency Alert System (EAS). In recent weeks, the FCC has been aggressively prosecuting parties who it has found to have transmitted false or misleading EAS alerts. This was exhibited this week through the Notice of Apparent Liability issued to CBS for an altered and shortened version of the EAS tones used in the background of a “Young Sheldon” episode, leading to a $272,000 proposed fine. Consent decrees were announced two weeks ago with broadcasters and cable programmers for similar violations (see FCC notices here, here, here and here), with payments to the US Treasury reaching $395,000. These follow past cases that we have written about here, here, here, here, and here, where fines have exceeded $1 million. The CBS case raised many interesting issues that have received comment elsewhere in recent days, including the First Amendment implications of restrictions on the use of EAS tones in programming, and whether an altered tone in the background of an entertainment program, where audiences would seemingly realize there was no actual emergency, should really be the subject of an enforcement action. But the question that has not received much attention is one raised by the FCC’s Enforcement Advisory released last month addressing the improper use of EAS alert tones and the Wireless Emergency Alert tones used by wireless carriers (known as WEA alerts), and simulations of those tones. That advisory raises questions of just how far the FCC’s jurisdiction in this area goes – could it reach beyond the broadcasters and cable programmers to which it has already been applied and extend to online programming services?

This question arises because the FCC’s Enforcement Advisory addresses not only EAS tones used by broadcasters and cable systems, but also the WEA alert tones voluntarily deployed by most wireless providers. The advisory makes clear that the use of either EAS or WEA tones without a real emergency is a violation of the FCC rules. The Advisory states:

The use of simulated or actual EAS codes or the EAS or WEA Attention Signals (which are composed of two tones transmitted simultaneously), for nonauthorized purposes—such as commercial or entertainment purposes—can confuse people or lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.

The FCC goes on to state:

the use of the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency, authorized test, or except as designed and used for PSAs by federal, state, local, tribal and territorial entities, is strictly prohibited.
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It was news earlier this week when a company that promotes poker was sued by one of the major record labels and publishing companies for the use of music in podcasts without permission. As we have written before (see, for instance, our articles here and here), the use of music in podcasts requires a license from the copyright holder of both the musical composition and the recorded performance of the music (usually, for popular music, a publishing company and a record label). In this case, one of the first we’ve seen against a podcaster for infringement of a copyright holder’s music rights (though we have heard of other situations where cease and desist letters were sent to podcasters, or where demand letters from copyright holders resulted in negotiated settlements), Universal Music alleges that the podcast company used its music and refused to negotiate a license despite repeated attempts by the music company to get the podcaster to do so. Thus, the lawsuit was filed.

As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act. These rights are not covered by the public performance licenses which only give the rights to make performances to the public. What is the difference between these rights?
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Can retweeting or sharing someone else’s content get you into trouble? Possibly, based on news reports of a recently filed lawsuit seeking damages for defamation from a cable TV host who retweeted a twitter photo suggesting that someone has made racially derogatory comments. This case seems similar to the one about which we wrote here

At almost every broadcast conference, there is a discussion of using Alexa, Google Home and other smart speakers and digital assistants to increase the reach of broadcast radio stations. Discussions of how to get listeners to tune in and how to monetize the listeners on these new platforms are regularly included. But rarely is there a discussion of the music royalty impact of transitioning radio listeners to these digital platforms. Given these continuing discussions about smart speakers, and the apparent lack of focus on royalty issues, I thought that it was worth re-running this article that I posted earlier this year.

In the last year, the popularity of Alexa, Google Home and similar “smart speaker” devices has led to discussions at almost every broadcast conference of how radio broadcasters should embrace the technology as the new way for listeners to access radio programming in their homes. Broadcasters are urged to adopt strategies to take advantage of the technology to keep listeners listening to their radio stations through these new devices. Obviously, broadcasters want their content where the listeners are, and they have to take advantage of new platforms like the smart speaker. But in doing so, they also need to be cognizant that the technology imposes new costs on their operations – in particular increased fees payable to SoundExchange.

Never mentioned at these broadcast conferences that urge broadcasters to take advantage of these smart speakers is the fact that these speakers, when asked to play a radio station, end up playing that station’s stream, not its over-the-air signal. For the most part, these devices are not equipped with FM chips or any other technology to receive over-the-air signals. So, when you ask Alexa or Google to play your station, you are calling up a digital stream, and each digital stream gives rise to the same royalties to SoundExchange that a station pays for its webcast stream on its app or through a platform like TuneIn or the iHeartRadio. For 2018, those royalties are $.0018 per song per listener (see our article here). In other words, for each song you play, you pay SoundExchange about one-fifth of a cent for each listener who hears it. These royalties are in addition to the royalties paid to ASCAP, BMI, SESAC and, for most commercial stations, GMR.
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In recent weeks, we’ve written about a number of legal issues that need to be considered in connection with podcasting – getting releases from guests, making sure that ownership of the podcast is clear, and considering music royalties. Another issue that I discussed in my presentation on legal issues for broadcasters entering

In recent weeks, I’ve written about my presentation at the Podcast Movement Convention on legal issues for broadcasters who are thinking about podcasting, and followed up with an article warning any company with employees or contractors creating podcasts or other digital media projects to be sure to clarify who owns the content that is created. Recently, there has been litigation about another issue – the individuals featured in podcasts suing the producer for unauthorized uses of the interviews recorded for use in the podcast, under theories including the invasion of privacy or violation of the rights of publicity of the interviewees.

One lawsuit receiving significant publicity (see for instance the detailed articles here and here) is from the family of the individual who became the main focus of the popular podcast S-Town. The podcast focused much of its attention on the life of an individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity. Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest. Most broadcasters, covering news events, don’t routinely run up against the restrictions set out in these laws. But podcasts and various other reality programming may be more lifestyle-oriented, and may detail private facts about individuals who are not in the news, leading to issues like these. Getting a release from the subject of an interview waiving any such rights, and otherwise giving the producer the rights to exploit the recordings that are made, can help to reduce the risk that these laws may otherwise pose. Plus, there are other reasons that a release may be helpful.
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Last week, we wrote about legal issues for podcasters, and made the point that media companies should be making clear by contract or otherwise who owns the podcasts that their employees and independent contractors have created. This week, there was press coverage (see, for instance, the article here) about a law suit

Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast.
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Next Wednesday, July 25, I will be speaking at the Podcast Movement Conference in Philadelphia, as part of the Broadcasters Meet Podcasters Track, discussing legal issues that broadcasters need to consider as they move some of their content into podcasts. One of the topics that I will be discussing will be the music royalty obligations of podcasters who use music in their programs. A month ago, we wrote about how broadcasters’ streaming royalties are affected by smart speakers like the Amazon Alexa and Google Home, as these speakers play the digital streams of a radio station’s programs where SoundExchange royalties must be paid, as opposed to the over-the-air signal of the station, where no such royalties are owed. These smart speakers may have an impact on podcasters royalties, affecting who needs to be paid in connection with the use of music in podcasts.

When I initially started to write about issues of music use in podcasts, my emphasis was on the need to secure direct licenses from performers and composers (or their record companies and publishing companies) for the rights to make reproductions and distributions of music in podcasts. When digital content is downloaded, it triggers rights under copyright law implicating the reproduction and distribution rights of copyright holders (see our article here), as opposed to their public performance rights – the rights with which broadcasters are most familiar as those are the rights that they obtain when paying Performing Rights Organizations ASCAP, BMI, SESAC and GMR in connection with their over-the-air broadcasts and those PROs plus SoundExchange in connection with noninteractive digital streaming. When podcasts were something that were downloaded, just like the purchase of a download of a song from the iTunes music store, it was the reproduction and distribution rights that were triggered, and conventional wisdom was that the PROs had no role to play in the licensing of downloaded media. As technology has changed, the analysis of what rights you need to use music in podcasts may well be changing too. The direct licensing of music for your podcast is still needed – but a public performance right may well also be necessary.
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I was recently interviewed by Steve Goldstein of Amplifi Media, a firm that consults for podcast companies, on the difficulties with the use of music in podcasts. That interview has been turned into an article on Steve’s blog, here, discussing these legal issues. That article discusses the same issues that we’ve written about