The Good Wife is not usually where one turns for serious discussions of music copyright issues (nor is Stephen Colbert’s Christmas special where we found copyright issues discussed several years ago).  But I was surprised to find this Sunday that the principal plot line of The Good Wife was focused on a music rights dispute.  After watching, I wondered how many people in the show’s audience had any idea of what the legal issues being discussed were really all about.  In fact, copyright law, as confusing as it can sometimes be, is an unusual topic for a plot line on a TV show.  It is not as universally understandable as is a criminal trial, a custody case or some civil suit for damages.  In fact, as we’ve written before, the complexity of copyright law makes compliance difficult even for those involved in the industry.  The Good Wife episode itself made that complexity a comedic point throughout the program, as even the musicians involved in the plot line several times remarked that they, too, were clueless as to the rights issues involved in this fictional case.  But, with a couple of days to reflect on the program, I thought that it might be worth expounding on some of the copyright issues involved, as they illustrate some of the rights that are included in the copyrights to every piece of music.

As we have written before, what makes copyrights in music so confusing is that there are several copyright holders in each recorded song, and each copyright holder has different rights, often administered by different organizations.  We write much about the public performance rights in sound recordings (usually payable to SoundExchange by noninteractive digital music services, and to the record companies by interactive services) and in musical compositions (usually payable to ASCAP, BMI and SESAC, though some large publishing companies have started to pull their catalogs from these organizations to license directly).  But The Good Wife did not deal with the public performance right, but instead with other rights in music.  The two rights principally dealt with were the right to authorize the making of a reproduction (often referred to as a “mechanical right“) and the right to make a derivative work.  The first is the right of the copyright holder to authorize others to use their compositions or recordings to make copies.  In the TV case, the issue involved the rights held by the writer of the song to authorize others to make cover versions of that song and to reproduce those versions (e.g. through CDs, downloads or other digital reproductions).  The right to make a derivative work is the right that the copyright holder has to authorize others to take parts of the original work but to make more than cursory changes to that work, e.g., keeping the melody and changing the words, or as in the TV case, keeping the words but changing the melody (in the TV case, taking a rap song and giving it a real pop song melody).  Continue Reading Learning Copyright Law from TV’s The Good Wife – Compulsory Licenses, Derivitive Works and Parody and Fair Use

It is the beginning of another year – and a time to look ahead to look ahead at what broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in Washington’s alphabet soup of regulatory agencies in the near future.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

Each January, we publish a list of issues for the coming year, and it is not always the case that these issues make it to the top of various piles (literal or figurative) that sit in various offices at the FCC.  As set forth below, there are a number of FCC proceedings that remain open, and could be resolved this year.  But just as often, a good number of these issues sit unresolved to be included, once again, on our list of issues for next year.  While some issues are almost guaranteed to be considered, others are a crap shoot as to whether they will in fact bubble up to the top of the FCC’s long list of pending items. So this list should not be seen as a definitive list of what will be considered by the FCC this year, but instead as an alert as to what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below. Continue Reading What’s Up in Washington For Broadcasters in 2014? — Part 1, FCC Issues

The Copyright Royalty Board today published in the Federal Register its notice announcing the commencement of the next proceeding to set webcasting royalty rates for 2016-2020.  The Notices (here for webcasting and here for “new subscription services” – subscription webcasting and other similar pay digital music services, other than satellite and cable radio whose royalties were set in another proceeding about which we wrote here) were notable as they were not simply an announcement that the proceedings were beginning and a recitation of the procedure for filing a petition to participate (essentially a written filing setting out a party’s interest in the outcome of the proceeding and the payment of a $150 filing fee). Instead, the order sets out a series of questions for consideration by potential participants, asking that they consider some fundamental issues about the nature of the royalty to be adopted in this proceeding.  Petitions to participate must be filed by interested parties with the CRB by February 3. 

The questions asked by the Judges really revolve around two issues that have been raised many times in prior proceedings.  These questions are noteworthy only because the Judges are asking the parties to consider whether the CRB should address issues that have been litigated in prior proceedings – issues that some might have considered to be settled by these prior cases.  First, the Judges ask if the CRB would be justified in adopting a percentage of revenue royalty, rather than the per song, per listener royalty metric that has been used in the three prior proceedings. Asking that question raises several other sub-issues that are set out in the orders including:

  • Whether it is too difficult to determine what the revenues of a webcaster are, an issue that can be troublesome if the webcaster has multiple lines of business where determining which revenues are attributable to webcasting and which are attributable to other services might be complicated (though collection agencies like ASCAP and BMI are able to administer their royalty schemes, usually using a percentage of revenue rate).
  • Whether a percentage of revenue royalty is unfair to the artists because it does not pay each artists an equivalent amount for each song that is played, thought the Judges ask parties to address whether all music is worth the same amount (see our article here about the difficulty in assessing the value of music and the controversies that it raises).
  • Whether a percentage of revenue royalty encourages the webcaster to use too much music, as services not paying on a per song per listener basis might not need to be efficient in monetizing their music use unless, as suggested by the Board, there are substantial minimum fees adopted to encourage the webcaster to make money off of its use of the music.

In addition, the Board asks if there should be different rates for different types of webcasters – are some more efficient than others?  Can royalties be maximized by “price discrimination” – charging less to certain webcasters to get whatever can be received from them, while charging a higher royalty rate to other services that can afford to pay more?  In effect, there has been price discrimination in the webcasting market, but such discrimination has come about after there have been decisions perceived as adverse to webcasters, when webcasters and SoundExchange have come together, often as the result of political pressure, to negotiate alternative rates pursuant to a Webcaster Settlement Act (or the Small Webcaster Settlement Act in the initial proceeding).  See our summary of the differing royalty rates currently paid by webcasters pursuant to these negotiated deals, here.  Continue Reading Copyright Royalty Board Calls for Petitions to Participate in Proceeding to Set Webcasting Royalties for 2016-2020 – Posing Many Questions for Potential Participants

Closed captioning of video programming repurposed to the Internet has been an obligation of television stations for over a year.  Thus far, most stations have been able to comply with the requirements – as those requirements have only applied to full programs that were captioned when broadcast over the air, and then carried over to the Internet, either in whole or in segments that comprise essentially all of the program.  Now, the FCC is asking if any program excerpt should be captioned when transmitted over the Internet.  In a Public Notice released this week, the FCC asked whether the obligation to caption television programming transmitted through IP technologies should be extended to clips of such programming as well.

In asking for comments, the FCC noted that, when Congress adopted the Twenty-First Century Communications and Video Accessibility Act, which gave the FCC authority to mandate Internet captioning of TV programs, Congress required only the captioning of full programs, but it said that the limitation to full programs was intended only “at this time,” suggesting that the FCC could extend the requirements to clips at some point in the future.  Thus, the Commission is asking if this is the time to look at an extension of the obligations.  In undertaking this examination, the FCC is posing numerous requests for information from interested parties. Continue Reading Mandatory Captioning of IP Delivered Clips of TV Programs? The FCC Seeks Information About Extending Internet Video Captioning Obligations

The FCC this week announced groups of mutually exclusive (“MX”) LPFM applications, i.e. those groups where applications are for the same or adjacent channels where the grant of one application in the group would preclude other applications in that same group.  The Public Notice is here, and the list of MX groups is here.  The importance of the FCC’s announcement for LPFM applicants is that it gives the applicants 60 days, until February 14, 2014, to amend their applications to make minor changes that will resolve the MX situations (e.g. moving to an adjacent or IF channel or making a slight site change that will eliminate the interference with the other applications that would result if the applications were granted as they now stand). 

Applications left in the MX group at the end of the 60 day period will be subject to a “point system” analysis, granting the application which has the highest number of points in the FCC’s system for deciding between mutually exclusive applicants (giving points for the following:

  • (1) having an established community presence of at least two years;
  • (2) pledging to originate locally at least eight hours of programming per day;
  • (3) pledging to maintain a publicly accessible main studio that has local program origination capability;
  • (4) certifying that you qualify for a point under both the local program origination and the main studio criteria;
  • (5) certifying that neither you nor any party to your application has an attributable interest in another broadcast station; and
  • (6) being a Tribal Applicant proposing to locate your transmitting antenna site on your Tribal Lands).

Note that no amendment that is filed now can improve an applicants comparative position under these point system criteria.  Applicants are locked into the points that they claimed when they initially filed their applications.  Continue Reading FCC Announces MX Groups for LPFM Applications – Amendments Possible, So Full-Power FMs Should be Watchful

The LPFM applications are in, and counted, and the FCC is actively processing them.  A recent public notice from the FCC about the processing of these applications puts FM broadcasters on notice that they should be checking what was filed in their market areas to make sure that there are no interference issues for their full-power stations or existing translators  The FCC’s public notice about the processing of LPFM applications is available here http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-13-2308A1.pdf

 As you will see, the FCC is first looking to identify “singleton” applications, i.e. those that are not subject to any competing applications.  Once the FCC determines that an application is a singleton, its status in the FCC database will change from the application simply having been “received” to it having been “accepted for filing.”   The acceptance for filing triggers a 30 day petition to deny period, during which broadcasters can object to potential interference from the LPFM or for other violations of the FCC rules on LPFM.  Broadcasters should be looking at local applications, for issues like second-adjacent channel waivers or other issues so that objections can be filed during the petition to deny window against those applications that might be troublesome.  Continue Reading FCC Processing of LPFM Applications Continues – FM Broadcasters Beware of Potential Interference Issues

In two decisions released this week, the FCC proposed to fine two broadcast groups $20,000 each for EEO violations.  In recent years, when the FCC releases fines for broadcast EEO violations, they seem to be trying to emphasize a point as to some aspect of the EEO rules by releasing multiple decisions at the same time all having the same theme.  In the cases released this week, the point that was common to both fines was that the broadcaster had not regularly sent information openings about job openings to community organizations that asked to be notified about such openings.  It was this failure, plus the failure of the stations to discover the problem through the self-assessment that is supposed to be regularly undertaken by a broadcaster of its EEO program, and the failure to report the problem to the FCC, that led to these fines, issued to two large broadcasters – Maryland Public Television (see the FCC opinion here) and AM/FM Broadcasting (see the FCC opinion here).

The FCC’s EEO program for broadcasters has three prongs. The first requires that the broadcaster adopt an outreach program to notify all significant groups within its community of job openings at the station.  The FCC is looking for an outreach program that reaches beyond the “old boy’s network,” to recruit new people from diverse segments of the community to work at broadcast stations.  In the past, many of the EEO fines that were issued focused on this first prong of the program – fining stations that either did not reach out to community groups about openings for most of its jobs (see, for instance, our article here), or where the outreach was insufficiently broad (see, for instance, our article here about fines issued to stations that had relied solely on in-house recruiting or online sources which, alone were deemed insufficient.  The cases this week went to prong 2 of the EEO program – the obligation to notify groups about job openings when those groups ask that they be notified. Continue Reading Two $20,000 FCC Fines for EEO Violations Demonstrate the Importance of Notifications of Job Openings to Community Groups

Section 399b of the Communications Act bans advertising for for-profit companies, as well as political and issue advertising, on noncommercial radio and television stations.  While Congress over 20 years ago loosened some restrictions on fundraising by allowing paid ads by nonprofit groups on noncommercial stations, and permitting commercial entities to provide some minimal information about their businesses (including their logos) on sponsorship underwriting on public TV, the ban has otherwise prohibited commercial and political ads containing qualitative claims, price information or calls to action.  In a recent decision, the US Court of Appeals for the Ninth Circuit affirmed a decision of a California District Court upholding the constitutionality of that ban against a challenge by a noncommercial TV station operator who contended that the rule was an unconstitutional abridgement of the First Amendment.  The case is particularly interesting not just for the analysis by the Court in upholding the ban, but perhaps more so for the dissenting opinion of the Court’s Chief Judge, who found that the Court’s analysis ignored modern realities of the broadcast world in adopting a reduced standard of First Amendment protection for broadcasters leading the majority to be too timid in questioning the justification for the ban advanced by the government.  Thus, the case has importance not just for noncommercial broadcasters looking for new sources of revenue, but also for other broadcasters concerned about intrusive government regulation of their industry and the standard of First Amendment review that would be applied to such regulation.

We had written about an earlier decision in this case here and here.  The case arose when a public television operator in the San Francisco area, Minority Television Project, Inc., was fined by the FCC for having run promotional ads for commercial and political advertisers, and decided to fight that ban in court.  A panel of the Court of Appeals determined that the fine was appropriate for running commercials for for-profit companies, but unexpectedly threw out the Section 399b restriction on ads on political or controversial issues, finding that the public good of speech on these topics outweighed the government’s interest in fostering public broadcasting. Continue Reading Court of Appeals Upholds Communications Act Ban on Commercial and Political Advertising on Public TV Stations – Significant Analysis of the Standards for First Amendment Review of all Broadcast Regulation

While we were sidetracked by the government shutdown in posting reminders about regulatory deadlines for broadcasters during the last two months, it’s about time to put that behind us, and to resume our monthly practice. While everyone may be looking forward to the holidays, they need to remember that December does bring a number of regulatory obligations for broadcasters across the country.  For instance, license renewals are due on December 2 (as the 1st is a Sunday) for the following station groups: Commercial and Noncommercial Full-Power and Class A Television Stations, TV Translators, and LPTV Stations in Colorado, Minnesota, Montana, North Dakota and South Dakota; Commercial and Noncommercial AM and FM Radio Stations, FM Translators, and LPFM Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

Radio and television stations in all of those states, plus those in Alabama and Georgia, that have 5 or more full-time employees in their station employment groups, also have the obligation to complete their Annual EEO Public Inspection File Report, and to place that report into their public file (for TV stations, that would be their online pubic file).  The deadline for those reports to be complete and posted is December 1.  Radio stations in these states also need to post the most recent report on their websites, if they have a website.  Continue Reading December Regulatory Deadlines For Broadcasters – Renewals, Ownership Reports, CALM Act, and TV Form 317

A few weeks ago, we wrote about the most immediate part of the FCC’s plan for the revitalization of AM radio – providing more FM translators for AM stations.  As the FCC has just announced the deadline dates for the filing of public comments on the reform proposals, setting the comment deadline for January 21 and the reply comment deadline on February 18, we thought that it was time to return to the subject to address some of the FCC’s other proposals.  As we mentioned in passing in our last article, the other proposals do not address any fundamental change in the AM service or anything that will necessarily help to overcome the interference issues that have made life difficult for many AM stations in an urban environment.  Instead, they look at ways to make current AM station operations easier.  In some ways, the order almost looks to be looking for ways to stem the loss of AM stations until a long-term  solution for the saving the service can be devised.

Revitalizing AM radio is not easy.  As the oldest radio service, the very things that made it attractive to the early days of radio – being able to reach vast areas of the country – now create problems.  The fact that AM stations have “skywave” signals that bounce off the atmosphere and travel hundreds, even thousands of miles, especially at night, also mean that their signals interfere with other stations on the same frequencies thousands of miles from their transmitter sites.  And, as more and more electronic “noise” has entered the environment, from relatively new technologies including florescent light bulbs to garage door openers and other wireless remote control devices, AM signals have proved to be especially susceptible to interference from these sources, especially in urban environments.  These problems are difficult to address without fundamental changes in the service.  But some quick fixes are possible to address more short-term needs of AM operators, and these are the kinds of issues addressed in the new rulemaking. Continue Reading FCC Proposals for AM Radio Part 2 – Comment Deadline Dates, Site Moves and Unaddressed Questions