Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Note from David Oxenford: Seth Resler of Jacobs Media yesterday wrote on his Connecting the Dots blog about the ease of synthesizing the voice of a celebrity, and the temptation to use that replicated voice in an on-air broadcast. Last week, in an article on policy issues raised by AI, we mentioned that some states have adopted laws that limit the use of synthesized media in political advertising. In Seth’s article, he quotes Belinda Scrimenti of my law firm pointing out some of the legal issues that arise from using a synthesized voice even in entertainment programming, and especially in commercials. Belinda has expanded on her thoughts and offers the following observations on the use of synthesized personalities on radio or TV.
The advent of artificial intelligence poses interesting and often challenging legal issues because the law is still “catching up” with the technology. Consider the impact of new AI platforms that can learn a person’s voice, then speak whatever text you submit to it in that person’s voice. If a user submits 60 seconds of Taylor Swift audio to the AI platform, the platform can use this sample to learn to “speak” as Taylor Swift, and the user can then have “her” say whatever the user wants.
While some states are considering or have adopted some restrictions on impersonation by AI, many existing legal concepts applied with traditional celebrity impersonation claims are already applicable to this kind of synthesized celebrity impersonation. Thus, if the use by a broadcaster of Taylor Swift’s voice (either taped and edited or impersonated by a human) would violate the right of publicity that is already found in the law of most states, the use of her AI voice would also violate these same rights.
Artificial intelligence has been the buzzword of the last few months. Since the public release of ChatGPT, seemingly every tech company has either announced a new AI program or some use for AI that will compete with activities currently performed by real people. While AI poses all sorts of questions for society and issues for almost every industry, applications for the media industry are particularly interesting. They range from AI creating music, writing scripts, reporting the news, and even playing DJ on Spotify channels. All these activities raise competitive issues, but there have also begun to be a number of policy issues bubbling to the surface.
The most obvious policy issue is whether artistic works created by AI are entitled to copyright protection – an issue addressed by recent guidance from the Copyright Office suggesting that a work created solely by a machine is not entitled to protection, but that there may be circumstances where a person is providing sufficient guidance to the artificial intelligence such that the AI is seen as more of a tool for the person’s creativity, and that person can claim to be the creator of the work and receive copyright protection.
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 advertisements or broadcasting of advertising, as well as one more issue that should be
With Selection Sunday this weekend, the 2023 NCAA Collegiate Basketball Tournament is about to begin. As faithful readers of this blog know, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.
NCAA Trademarks
The NCAA owns 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®. (It also has a registration for SPRING MADNESS®in connectionwith its soccer tournaments.)
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 and Advertising: Use of NCAA Trademarks (2023 Update – Part 1)
Here are some of the regulatory developments of significance to broadcasters from the last week, and a look ahead to events of importance next week, 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 advertisements or broadcasting of advertising. But, first, I will discuss yet one more issue that should be considered.
Endorsements by Individual Student-Athletes
After many years of litigation, in July 2021, the NCAA suspended its policy prohibiting college athletes from profiting from their names, images and likenesses (“NIL”) (or their right of publicity) without losing their eligibility. However, there is no national set of rules as to what is permissible. Rather, the right of publicity is governed by state law. Moreover, colleges and universities still have the right establish some rules or standards. For example, although student-athletes can now get paid to endorse a commercial product, they are not automatically entitled to use any NCAA or school trademarks. Thus, a college basketball player may not be authorized to wear their uniform in advertising unless the school has granted permission. Can the player wear a uniform with the school colors, but no names or logos? Can the player endorse an alcoholic product? Answers will vary state by state and school by school, so it will be extremely important to check with experienced counsel before running any advertising that involves college players.
Now, back to the game …
Continue Reading NCAA Tournament Advertising: Use of Trademarks and … One More Thing (2022 Update – Part 2)
With the 2022 NCAA Collegiate Basketball Tournament about to begin, as faithful readers of this blog know, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament (see, for instance, our articles last year about this same time, here and here). In addition, starting this year, there is another issue to consider, which I will discuss tomorrow.
NCAA Trademarks
The NCAA owns 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 NCAA Tournament Advertising: Use of Trademarks and … One More Thing (2022 Update – Part 1)
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
There was record viewership for the last-second victories in each of the 2022 NFC and AFC Divisional Round games. Thus, the interest in this year’s Super Bowl game may be unprecedented and advertisers may want to take advantage. For the last six years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL. Here is an updated version of my prior posts, which may be particularly useful to potential advertisers and broadcasters who may be asked to carry their ads.
The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcasts the Super Bowl paid the NFL over $1 billion per year for the right to broadcast NFL games through this season, including the right to broadcast the big game on a rotating basis once every three years. In addition, the NFL has entered into a new contract that goes through 2033, for a reported total of $100 billion, under which CBS, ESPN/ABC and Fox, will have television rights for three Super Bowls and NBC will have the rights to broadcast two Super Bowls.
The investment seems to pay off for the networks. Reportedly, it cost $6 M for a 30-second spot during last year’s Super Bowl broadcast, up from $5.6 M the prior year, and national advertising revenue totaled $545 M (up from $448.7 M the prior year) and these figures do not include income from ads during any pre-game or post-game programming. (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.) In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.
Continue Reading The Clock is Ticking Towards the Super Bowl: 2022 Update on Super Bowl Advertising and Promotions
