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The use of music has long been an issue for those looking to provide music-oriented podcasts to the public.  As we have written before (see, for example, our articles here and here), clearing rights to use music in podcasts is not as simple as signing up with ASCAP, BMI and SESAC (or even adding GMR or SoundExchange to the mix).  These organizations simply cover public performance rights for music when, as our prior articles make clear, podcasts require additional rights to use music in ways not fully covered by the licenses that are offered by these organizations.  The rights to the use both the underlying musical composition and the actual recording of that composition by a band or singer must be obtained on an individual basis from the copyright holders.  That can often mean a search for both the publisher and record company who usually own those copyright in the musical composition and the sound recording, respectively.  This can often be a difficult search, especially if there are multiple songwriters of a composition (and hence multiple publishing companies which likely own the copyrights) or where the rights to the songs have been assigned over time from their original owners.  Plus, as we have written before, there is no easily accessible universal database yet in existence that provides up-to-date and complete records of who owns those copyrights.  All this combines to make the clearance of music for use in podcasts an arduous process – and almost prohibitive for any small podcaster who wants to use more than one or two pieces of music in connection with their show.

In an article in the radio industry newsletter Inside Radio this week, it appears that at least two music-oriented podcasts have attracted the attention of the music industry, receiving demands from the RIAA which has led to their ceasing of operations.  It appears that these cases demonstrate both the difficulty of clearing music for podcasts, and perhaps that, as podcasting is growing in attention, the legal issues associated with the use of music in those podcasts is coming to the forefront of the attention of the music industry.
Continue Reading Music in Podcasts – As Podcasts Shut Down Following Infringement Notices, Looking at the Required Music Rights

The Radio Music License Committee and SESAC yesterday announced an extension of the terms of the royalty agreement that is currently in place between the commercial radio industry and this performing rights organization.  As we wrote here, the agreement under which radio broadcasters have been paying for the last three years was arrived at after an arbitration process following the settlement of an antitrust proceeding, and resulted in a dramatic reduction in the amount of the royalties paid to SESAC prior to that litigation.  The antitrust settlement calls for arbitration every three years if RMLC and SESAC cannot voluntarily arrive at new royalties.  The initial three-year period expired at the end of the 2018.  The parties have been negotiating a deal that covers the period starting from January 1, 2019, and the new deal that they arrived at runs for four years through December 31, 2022.  The new blanket agreement is available on the RMLC website here and with instructions from SESAC here.  It principally carries forward the deal terms of the prior agreement.

Note that in many trade press reports there have been statements that the agreement covers the public performance of SESAC music, not just on over-the-air radio but also on the streams of broadcast stations and in other “new media transmissions.”  These new media transmissions, under the terms of the agreement, also include “radio-style podcasts.”  As we noted in connection with RMLC’s recent license agreement with BMI, these agreements cover the public performance rights in a podcast, but that is not the only music license that you need to use music in a podcast.  As podcasts are downloadable and playable on-demand, and they involve the synchronization of music and speech into a unified recorded work, the rights under Copyright law to make reproductions and likely the right to make derivative works of these recordings need to be secured.  These rights need to come directly from the copyright holders in both the musical composition (the words and music of a song) and the sound recording (that song as recorded by a particular band or singer).  The public performance rights from ASCAP, BMI and SESAC are insufficient by themselves to give you the rights to use music in a podcast, which is why there are so few podcasts that make extensive use of major label recorded music.
Continue Reading RMLC and SESAC Agree to Extend Current License Agreement for Commercial Radio – Music Licensing Update for Radio

Our friends at Edison Research recently released a study on music discovery highlighting the ways in which people discover new music.  Among their findings was that broadcast radio, YouTube and streaming services were among the largest sources for that discovery.  That report caused one radio trade publication to suggest that podcasts, which ranked relatively low among the places where new music is discovered, might have opportunities to grow there.  What that suggestion overlooks is one of the biggest reasons that music podcasts have not taken off – rights issues.  There still is no easy way to clear the rights to major label music – so most podcasts are limited to spoken word featuring limited, directly licensed music.

That comment made us think that we should re-run an article from earlier this year, that explained music rights in podcasts.  That article was prompted by the settlement between the Radio Music License Committee and BMI over music royalties for broadcasting.  While a press release about the settlement said that the BMI license includes the use of music in podcasts, we pointed out that radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining all of the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim.
Continue Reading Using Music in Podcasts – Talk to the Copyright Holders – Why You Can’t Rely on Your ASCAP, BMI, SESAC and SoundExchange Licenses

We summarized the provisions of Section 230 of the Communications Decency Act on Monday, looking at the application of the law that the President has sought to change through the Executive Order released last week.  Today, it’s time to look at what the Executive Order purports to do and what practical effects it might have on media companies, including broadcasters.  As we noted in our first article, the reach of Section 230 is broad enough that any company with an online presence where content is created and posted by someone other than the site owner is protected by Section 230 – so that would include the online properties of almost every media company has.

The Executive Order has four distinct action items directed to different parts of the government.  The first, which has perhaps received the most publicity in the broadcast world, is the President’s direction that the Department of Commerce, acting through its National Telecommunications and Information Administration (NTIA – the Executive Branch office principally responsible for telecommunications policy), file a petition for rulemaking at the FCC.  This petition would ask that the FCC review Section 230 to determine if the protections afforded by the law are really as broad as they have been interpreted by the courts.  The Executive Order suggests that the FCC should review whether the ability granted by the law for an online platform to curate content posted by others – the “Good Samaritan” provisions that we wrote about on Monday – could trigger a loss of protections from civil liability for third-party content if sites exercise the curation rights in a manner that is not deemed to be in “good faith”.  The Executive Order directs this inquiry even though the protections for hosting online content are in a separate subsection of the law from the language granting the ability to curate content, and the protections from liability for third-party content contain no good faith language.  The Order suggests that the FCC should find that there would not be “good faith” if the reasons given for the curation actions were “pretextual,” if there was no notice and right to be heard by the party whose content is curated, and if the curation is contrary to the service’s terms of use.  The Order suggests that the FCC should adopt rules to clarify these issues.
Continue Reading Looking at the President’s Executive Order on Online Media – Part 2, What Real Risk Does It Pose for Media Companies?

When the President issues an Executive Order asking for examination of Section 230 of the Communications Decency Act, which permitted the growth of so many Internet companies, broadcasters and other media companies ask what effect the action may have on their operations.  On an initial reading, the impact of the order is very uncertain, as much of it simply calls on other government agencies to review the actions of online platforms.  But, given its focus on “online platforms” subject to the immunity from liability afforded by Section 230, and given the broad reach of Section 230 protections as interpreted by the Courts to cover any website or web platform that hosts content produced by others, the ultimate implications of any change in policy affecting these protections could be profound.  A change in policy could affect not only the huge online platforms that it appears to target, but even media companies that allow public comments on their stories, contests that call for the posting of content developed by third parties to be judged for purposes of awarding prizes, or the sites of content aggregators who post content developed by others (e.g. podcast hosting platforms).

Today, we will look at what Section 230 is, and the practical implications of the loss of its protections would have for online services.  The implications include the potential for even greater censorship by these platforms of what is being posted online – seemingly the opposite of the intent of the Executive Order triggered by the perceived limitations imposed on tweets of the President and on the social media posts of other conservative commentators.   In a later post, we’ll look at some of the other provisions of the Executive Order, and the actions that it is asks other government agencies (including the FCC and the FTC) to take. 
Continue Reading The President’s Executive Order on Online Media – What Does Section 230 of the Communications Decency Act Provide?

Rights of publicity and privacy can present issues for podcasters and other media companies who feature people in their productions.  Almost two years ago, we wrote about the lawsuit brought by the surviving family members of the character who was central to the S-Town podcast. The podcast focused much of its attention on the life of this 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.  The lawsuit now has reportedly been settled.  That settlement suggests that we should repeat the advice that we gave when the suit was first filed, as that advice remains relevant today.

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 – and the First Amendment provides broad protections for truthful stories about public figures.  Most broadcasters and other media companies don’t routinely run up against the restrictions set out in these laws in their day-to-day coverage of news events. But the analysis may be significantly different when a podcast or other media production gets into the stories of individuals who are not public figures.
Continue Reading S-Town Podcast Lawsuit Settled – Reminder on Getting Releases from Podcast Subjects

Music licensing issues are always confusing.  At the request of streaming service provider Live365 which hosted World Audio Day as a virtual substitute for our all getting together at last month’s cancelled NAB Convention in Las Vegas, I participated in a discussion of those issues, trying to provide the basics as to who gets paid…

BMI and the Radio Music License Committee announced a settlement of their rate court litigation over the royalties that commercial radio will pay for the public performance of musical compositions licensed by BMI.  While we have not yet seen the agreement, the press release already raises one issue likely to sew confusion in the broadcast industry – the extent to which the agreement allows the use of music in podcasts.  While the press release says that the BMI license includes the use of music in podcasts, radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim.

So why doesn’t the license from BMI fully cover the use of music in a podcast?  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 the reproduction and distribution of the copyrighted songs and the right to make derivative works – all additional rights given to copyright owners under the Copyright Act. These additional rights are not covered by the public performance licenses from ASCAP, BMI, SESAC, GMR and SoundExchange, nor are the rights to use the “sound recording” or “master” in the podcast. What is the difference between these rights?
Continue Reading BMI Settlement of Royalty Battle with RMLC to Include Music in Podcasts? – Not So Fast….

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.
Continue Reading How Far Does the FCC Authority Over False EAS Alerts Go? Could Online Programming be Subject to its Reach?

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?
Continue Reading Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting