Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
With Dr. Seuss recently in the news for the decision of his estate to pull from publication certain books that were racially insensitive, we thought that we would go back and look at another decision involving the good doctor that we did not get around to reviewing when it came out at the end of last year – the decision that a book, Oh, The Places that You Will Boldly Go, a mash-up of Dr. Seuss and Star Trek, was an infringement on the Seuss’ copyrights and did not qualify for fair use treatment. Who knew that Dr. Seuss would play such a prominent role in legal and public policy! As we summarize below, and as we have written before (see for instance our articles here and here), fair use is not a simple concept or one that is as broadly applicable as many in the media industry seem to think.
The decision from the 9th Circuit Court of Appeals in the Boldly Go case overturned a lower court opinion finding the book to be a parody of the original Seuss work (Oh, the Places You Will Go), and thus entitled to fair use protection. The 9th Circuit found that Boldly Go was not a fair use, but instead an improper exploitation of the copyrighted work. The Court reached its decision by reviewing the factors set out in Section 107 of the Copyright Act that are required for a fair use analysis. This decision is one which all media companies should review carefully, as it makes clear that fair use is not as broad of a concept as apparently believed. Importantly, fair use does not cover any use that may be an amusing adaptation of an original work. For instance, I am often asked by radio companies whether taking a song and substituting a new set of lyrics that provide some funny commentary on some newsworthy topic is fair use. As is evident from the analysis undertaken in the Boldly Go case, unless the “parody” is making fun of the original copyrighted work, it may well not qualify as a fair use and thus may be subject to a claim of copyright infringement.
Continue Reading Dr. Seuss and Fair Use – Just Because You Make a Funny Version of a Copyrighted Work Does Not Mean that You Will Escape an Infringement Claim
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament. Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your operations.
Activities that May Result in a Demand Letter from the NCAA
The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships. However, similar to my discussion earlier this year on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:
There is one more common pitfall that is unique to the NCAA Basketball: tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament. The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket or corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights. Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.
Continue Reading March Madness Trademarks: Tips To Avoid A Foul Call from the NCAA (2021 Update – Part 2)
Part 1 of my 2020 annual update on the use of trademarks associated with the NCAA Basketball Tournament was published on the same day that the NCAA announced it was cancelling the tournament due to the pandemic. Fortunately for all concerned (the players, fans, the NCAA and the broadcasters), it appears that the tournament will proceed as scheduled, with the first men’s games beginning on March 18 and the first women’s games beginning on March 21. Accordingly, this discussion should hold greater interest than it did last year.
So, with the tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament, including the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark. The NCAA does not own “Sweet Sixteen – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.
The NCAA also has federal registrations for some lesser known marks, including March Mayhem®, March Is On®, Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four®, and NCAA Fast Break®.
Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts. The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.
Continue Reading March Madness Trademarks: Tips To Avoid A Foul Call from the NCAA (2021 Update – Part 1)
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
March brings springtime and, with it, a likely reprieve from the cold and extreme weather much of the country has been suffering through. As noted below, though, March brings no reprieve from the routine regulatory dates and deadlines that fill a broadcaster’s calendar.
TV operators have until March 8 to file comments in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).
Continue Reading March Regulatory Dates for Broadcasters: Copyright, White Spaces, and Zonecasting Comments; LPTV and Translator Analog-to-Digital Extension; Emergency Alerting for Streaming Companies, and More.
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate. In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics. This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate). In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech). But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.
First, it is important to understand what the Doctrine covered and what it did not. It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks. It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations. The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance. The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis. In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them. How that was done was left to the station’s discretion, and the FCC intervened in only the most egregious cases.
Continue Reading The Return of the Fairness Doctrine – What it Was and Why it Won’t Return
We are waiting on the Copyright Royalty Board to release its decision setting the royalties that webcasters (including broadcasters who simulcast their over-the-air programming on the Internet) will pay to SoundExhange for the public performance of sound recordings in the period 2021 through the end of 2025. As we wrote here, that decision would normally have been released in December but, as the trial to establish those rates was delayed by the pandemic and held virtually over the summer, the decision on rates could come as late as this April, though once effective it will be retroactive to all streaming that has occurred since January 1 of this year. While we await the announcement of the new rates, as I’ve recently received several questions about the rules that apply to streaming under the statutory license, I thought that I would take a quick look at the “performance complement” and other rules that apply to companies that rely on this license.
Note that the rules set out below are slightly different for certain broadcasters, as the NAB in 2016 entered into agreements with Sony and Warner Music Groups to waive certain of the statutory requirements for broadcasters who stream their over-the-air signals on the Internet. These agreements allow broadcasters to stream their normal over-the-air programming featuring music from these labels without having to observe all of the obligations set out below. We summarized those waivers here, and hope that they will be further extended to cover the new royalty term. Also, some big webcasters have negotiated relief from these requirements (see our article here). But for those not subject to a waiver, let’s look at some of the rules that webcasters relying on the statutory license are to observe.
Continue Reading Looking at the Performance Complement and Other Rules that Apply to Webcasting Companies Relying on the Sound Recording Statutory License
