The NAB has announced 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.  The NAB had entered into similar agreements with all of the major labels and major independent labels back in 2009 (see our summary here).  But those agreements expired at the end of 2015, giving rise to fears among some broadcasters that some standard broadcast programming could not be streamed on the Internet (see our article here about those concerns).  These agreements, at least as to Sony and Warner, mitigate those fears.  This article provides a summary of some of the most important aspects of the new waivers.

These waivers cover requirements set forth in the Copyright Act which broadcasters, especially those who stream, may have difficulty meeting.  Generally, the waivers provide the following:

  • Relief from the statutory requirements as to “ephemeral copies” of sound recordings that require that such recordings can be kept for no longer than 6 months.  If that rule was to be applied strictly, stations that make a copy of a sound recording in furtherance of their streaming (or for their over-the-air broadcasts), by for instance making a copy of a song so that it can be stored in their digital music storage systems, could keep those copies for only 6 months.  After that time, the station would be required to delete any copy of a song and re-record it if they wanted to keep a copy in their music library for another six months.
  • The agreements waive the performance complement, which would otherwise limit a station that is streaming its signal from playing more than 2 songs from the same CD or album in a row, or playing more than 3 songs in a row from the same artist, or from playing more than 4 songs from the same artist (or from the same box set) in a 3-hour period.  The waivers allow stations to exceed these limits, only if they continue to play music in a manner consistent with normal broadcast operations.  However, even with the waiver, no station can play more than half an album consecutively.
  • The waivers allow stations to announce upcoming artists, only if they don’t announce the specific times that specific songs will be played.
  • The waivers allow some relief from the obligation that a broadcaster streaming their on-air programming on the Internet identify in text on their website or mobile app the name of the song that is playing, the artist who performs the song, and the album from which that song is taken.  That relief is limited to circumstances where, from time to time, a station can’t easily provide such textual information.

Continue Reading NAB Announces Agreements with Sony and Warner to Waive Performance Complement and Other Statutory Requirements for Broadcasters Who Stream Their Signals

As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty.  With the rise in the number of attack ads, stations are facing more and more demands from candidates who are being attacked in these ads, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality.  What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here).  In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee.  If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content.  Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here).  Because the station cannot pull the ad based on its content, the station has no liability if the candidate ad defames their opponent.  The opponent’s only remedy is to sue the candidate who ran the ad.  But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups?  Continue Reading Demands to Pull Political Attack Ads – What is a Station to Do? 

Over the last few weeks, we’ve offered insights about how you can stay out of legal hot water by establishing good practices with regard to your company’s trademark portfolio (see Part 5 of our Trade Basics series here, which contains links at the end to the other parts of the series). Unfortunately, not all companies have followed such wisdom. With Halloween just around the corner, we thought you might appreciate some Tips and Tales from the Trademark Crypt!

To help you avoid becoming another trademark horror story, don’t forget to dial into our upcoming Trademark Basics webinar, November 15th at 1pm Eastern Time for a live overview of the many issues we have discussed in the last few weeks. Register here today!

  • Searching Proposed Descriptive Marks. We have previously discussed how descriptive marks may become protectable as trademarks if they acquire what is known as “secondary meaning.” Just because a mark is descriptive doesn’t mean that you shouldn’t conduct a trademark search. In 1984, the manufacturer of GATORADE® beverages decided to use the slogan “Gatorade is Thirst Aid.” Its in-house counsel concluded that “Thirst Aid” was merely descriptive and therefore did not run a search before approving the slogan. A search would have revealed that the mark THIRST-AID® had been in use since 1921 and had been registered since 1950 in connection with soft drink products. The owner of the THIRST-AID® mark filed a trademark infringement claim and ultimately was awarded in excess of $10,000,000 in damages.
  • Running Down All Potential Impediments. Due diligence means more than running a trademark search. It means taking appropriate action to run down possible impediments before proceeding. In one case, a company named “Big O” used the marks “Big O Big Foot 60” and “Big O Big Foot 70” for tires, but its application to register BIG FOOT as a trademark was denied. Subsequently, Goodyear began using BIG FOOT for snowmobile tracks and, later, for tires. It ran a trademark search and concluded that there were no conflicting marks. It is not clear, but, most likely, the person who reviewed the search saw Big O’s abandoned application, but may not have tried to determine whether the mark was still in use. (It should be noted, however, that in 1974, the ability to locate marks that were in use, but were not registered, was far more limited than today.) In any event, a jury awarded Big O $2.8 million in damages (which was reduced to $678,302 on appeal) and $16.8 million in punitive damages (which was reduced to approximately $4.1 million on appeal).
  • Running Down All Potential Impediments – Part 2. Many companies translate their marks into Spanish for purposes of marketing to the Hispanic community. Even with a well-established trademark, a search should be conducted for the translated mark. Several months ago, a trademark infringement action was filed against Kentucky Fried Chicken for using “Para chuparse los dedos” on the basis that it is the Spanish-language translation of “Finger Lickin’ Good.” The plaintiff owns a restaurant in Southern California and has a registration for a logo that contains the identical phrase, “Para Chuparse Los Dedos,” which it says translates to “To Lick Your Fingers” in English. (We offer no comment on the possible outcome of this litigation, but mention it to illustrate the need for a thorough and competent trademark search before using almost any new mark.)
  • Clearing Advertising Copy. Famed boxing announcer Michael Buffer has reportedly been involved with at least 100 legal actions over his famous catchphrase LET’S GET READY TO RUMBLE® and claims to have never lost a case. Unfortunately, many radio stations and other media outlets have used the phrase without authorization (presumably without first consulting counsel), with many not aware that the catchphrase is legally protected, and have ended up on the receiving end of a cease and desist letter from Buffer’s attorney. At least one station was brought to court and was held liable for $175,000 worth of damages, while other awards have ranged from four to six figures.

Continue Reading Trademark Basics, Halloween Special: Tips and Tales From the Trademark Crypt

In recent weeks, we have continued to see copyright lawsuits against broadcasters filed by photographers who allege that their photos have been used without permission.  This spate of lawsuits has not been confined to filings against broadcast companies – even the Donald Trump campaign has reportedly been sued recently for his son’s tweet of a picture of a bowl of Skittles in his now-famous tweet comparing Syrian refugees to the candy treats.  We have written about this issue before (see for instance our posts here and here), but what makes these issues worth writing about again is that several of the recent suits involve not just the unauthorized use of a photograph on a station’s website, but the use of photos in social media posts including tweets on Twitter and posts on Facebook.  Is this really an issue?

It certainly is a concern, especially for commercial businesses.  As we have written before, just because someone posts a picture on the Internet, even on a social media or photo sharing site, does not give others the right to exploit that photo, especially on a digital site of a commercial business.  Posting on a social media site may give the social media site owner the right to exploit posted content consistent with their terms of use, but the person who created the content does not give up their underlying copyright in any creative work to third parties.  The Skittles suit represents an instance of a photographer using copyright law to enforce these rights, apparently as he did not agree with the political sentiment expressed by the tweet in which the photo was used.  But not too long ago, there was significant publicity about a lawsuit, now reportedly settled, about a New Jersey newspaper suing a cable news network because one of its personalities used a well-known 9-11 photo from the paper as the profile picture on that personality’s Facebook page – without first securing permission.  But isn’t that what these social media sites are for – sharing content? Continue Reading More Lawsuits for Unauthorized Use of Photos – Even on Social Media Sites

This has been an unusual political year, as the number of political broadcasting legal issues that have arisen seems far smaller than in past election cycles. Perhaps broadcasters are all on top of the issues this year, or maybe the questions that often arise in connection with attack ads simply pale in comparison to some of the non-advertising attacks that take place every day in the news and on other political-themed broadcast and cable programming. But one question that has come up repeatedly in these last few weeks before the election has been one about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. What is a station to do?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming) that appearance is a “use” by the political candidate. That includes “uses” even well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. So, an appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air. Continue Reading What to do When a Local Political Candidate Appears in a Spot Advertisement for a Commercial Business

Once you have identified your marks and sought protection through registration for some or all of them, there are still going to be other issues that you will need to consider. Trademark owners have an obligation to police their marks and take steps to stop infringers. Otherwise, they may run the risk that someone else will profit off their marks or tarnish the reputation they have developed for those marks. In extreme cases, the failure to police one’s marks may result in losing them entirely. The biggest issues in trademark protection today arise from the use of trademarks on the Internet. In this blog, we identify some situations that you may encounter or want to think about.

Also, note that we have set a date for our free webinar – please join us on November 15th at 1pm Eastern Time for a live overview of the many issues we have discussed in this series. You can register here.

Cybersquatting

You undoubtedly have one or more websites to promote your services, to interact with your listeners or viewers or to make video or audio available for online viewing or listening. You have spent a fair amount of time and money promoting your sites. Then, you learn that someone else has registered and is using a domain name that is confusingly similar to your domain name or one of your trademarks to attract traffic to their site. There are numerous ways that these cybersquatters can register a variation on your domain name or mark: adding (or dropping) a hyphen, adding a generic term, misspelling a word, omitting a letter, and replacing the letter “o” with a “zero” or the letter “l” with a “one” are some of the most common. Continue Reading Trademark Basics, Part Five: Trademarks on the Internet

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. This update was published today, and provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with quick updates on the status of other issues including the Incentive Auction, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. This quarter, we’ve even added discussions of drones and copyright issues that can arise from posting photos on a station’s website. If you are trying to keep on top of all the other legal and regulatory issues TV broadcasters should be considering this fall, or if you are looking for the current status of specific proceedings potentially impacting TV broadcasters, check out our most recent updated summary, here.

Of course, there are issues that radio broadcasters face as well. Last week, I updated the Kansas Association of Broadcasters on the regulatory issues facing broadcasters – both radio and TV. The slides that I used for my presentation at the KAB Annual Convention in Wichita are available here. In that presentation, I discussed issues including AM revitalization and FM translators, the online public inspection file, music licensing, political broadcasting, and other matters. While none of these articles or presentations can be comprehensive, these slides and the TV NewsCheck update, at least give you a quick overview of the many issues that broadcasters should be watching to stay on top of their legal obligations.

Earlier this week, our friends at the broadcast and digital media consulting and research firm Jacobs Media posted an article on their blog called “What Could Possibly Go Wrong,” dealing with the financial and reputational issues that can arise if a contest is not fully thought out. That article reminded me of all of the legal issues that we have written about over the years that can arise if all of the issues with a broadcast contest are not carefully considered. Those potential issues range from the an FCC fine if the contest is not conducted as advertised, to the threat of civil liability if the contest results in an injury to a contestant or observer. I thought that I would highlight some of the articles that we have written in the past to remind broadcasters of those potential liabilities.

On the FCC side, the FCC has always been a stickler on the rules, requiring that broadcasters, when conducting their own on-air contests, announce the rules of those contests and to follow those rules as announced. While that burden has become somewhat lighter in the last year as the FCC has allowed stations to publicize the material rules of a contest on a station’s website rather than having to announce them on the air (as long as the on-line location of those rules is itself publicized sufficiently on air, see our post here), that rule change has not affected the underlying obligation of a broadcaster to conduct the contest as announced, in accordance with the contest’s announced rules. Continue Reading What Could Possibly Go Wrong With a Broadcast Contest? – From the Legal Side

SESAC was, until recently, the only one of the three major performing rights organizations (PROs) that was not subject to an antitrust consent decree – meaning that it could set the rates that it wanted without any oversight by any court or other judicial body. For practical purposes, that ended when the radio and television industries separately sued SESAC claiming antitrust violations. Both the radio and TV industries felt that the SESAC royalties were too high in relation to those charged by ASCAP and BMI given the far greater amount of music controlled by these two larger PROs. As we wrote here (television) and here (radio), both antitrust cases ended with settlements where SESAC agreed that its rates would be subject to review by an arbitration panel to assure their reasonableness, if voluntary negotiations between the groups representing the industries and SESAC were not successful in arriving at mutually agreeable rates. So far, it appears that the rate-setting process for radio and TV are going in different directions.

The TV Music License Committee and SESAC have announced that they have reached an agreement in principle as to rates for the TV industry. See the press release here. While the agreement has not been finalized or made public, if negotiations of the final documents are successful, the TV industry and SESAC appear to avoid having their rates set by the arbitration process. So far, that does not seem to be the case for the radio industry. Continue Reading Update on the SESAC Royalty Arbitration Proceedings with the Radio and TV Industries

Last week, we discussed the benefits of federally registering your trademarks.  But having a few federal registrations under your belt doesn’t mean your task of building a valuable trademark portfolio is complete.  There are several additional steps you can take to make sure you are managing your trademarks wisely and getting the most value from them.

As we discussed last week, federal registration gives you many benefits and it is the most cost-effective way to protect your brand.  Once you have those registrations in hand, however, it is important to periodically take stock in what you own and what you are (or are no longer) using.  This can help you identify (1) new brands that can be exploited, potentially opening up new lines of licensing revenue, (2) vulnerabilities in your current trademark practices that could expose you to the risk of litigation, and (3) cost savings by identifying marks that are no longer in use and discontinuing their maintenance and enforcement.  Proactively maintaining your trademark portfolio can also help you avoid surprises.  Imagine discovering that an important trademark registration has lapsed only through the due diligence being conducted by a potential buyer of your station or station group.  Not only is that an embarrassing position to be in, but it could compromise your valuation and your negotiating power. Continue Reading Trademark Basics Part 4: Trademark Housekeeping 101 – Conducting a Trademark Audit