In the last two weeks, David Oxenford has, at two different conferences, moderated panels on digital music rights and licenses.  At the Digital Music Forum East, in New York City on February 25, 2010, his panel focused on rights and licenses generally, featuring panelists from SoundExchange, BMI, the Harry Fox Agency, Rightsflow and MediaNet.  As a handout, David provided copies of Davis Wright Tremaine’s Guide to The Basics of Digital Music Licensing, available here.  Discussion on the panel included the question of when there is a public performance versus when there is a reproduction of a copyrighted piece of music (see our post here), royalties for interactive streaming (see our post here), and the difference between a sound recording and a musical composition, rights to both of which are needed in most digital uses of music (see our post here).

At the RAIN Summit North, held at Canadian Music Week on March 12, David’s panel discussed the music royalty structure for Internet Radio companies in Canada. Panelists included the CEO of  Re:Sound (the Canadian version of SoundExchange, collecting royalties for the public performance of sound recordings) and the head of CMRRA-SODRAC (CSI), the Canadian Rights Society that collects for reproductions of musical compositions.  In Canada, broadcasters and Internet radio companies pay not only to SOCAN, the Canadian equivalent of ASCAP, BMI and SESAC in collecting for the public performance of musical compositions, but also to CSI for the reproductions of musical compositions made in servers, buffers and other digital reproductions. 

Just a reminder that all Video Programming Distributors — which includes broadcast television stations —  must identify a contact person for closed captioning issues, both immediate issues and general complaints, and file that contact information with the FCC by March 22, 2010.  As we’ve discussed previously, new FCC closed captioning rules recently went into effect that require video programming distributors to establish a contact for handling immediate closed captioning concerns, as well a contact for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rules require that video programming distributors publicize the appropriate contact information and also provide the information to the Commission, which will maintain a database open to consumers.  

Accordingly, by March 22, 2010, television stations must designate a contact person, post the necessary contact information on their web site (and in any phone directories the station may advertise in), and submit the information to the FCC.  The best way for stations to file this information with the FCC is to visit the FCC’s Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions that will walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov.

Video programming distributors must keep their contact information current and update both their Web sites and the Commission’s database within 10 business days of any changes to the information.  Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here. 

The FCC today released its National Broadband Plan to Congress, and in it spelled out its suggestions for the future of television. Facilitating the deployment of ubiquitous, dependable wireless broadband service is identified as a fundamental goal of the Commission’s proposals. The authors of the Commission’s report have viewed the problems experienced by some wireless broadband providers in major markets as indicative of a coming shortage in wireless capacity. Specifically, the Commission is concerned that as more and more applications for wireless broadband are deployed, the capacity of existing wireless spectrum will be exhausted, foreclosing opportunities presented by wireless broadband. And, as detailed below, the Commission sees the television spectrum as providing a significant part of the answer to that perceived spectrum shortfall.

The opportunities for broadband are many, in the view of the authors of the study. The Commission sees growing demand and future applications for wireless broadband not just in the areas of entertainment and commercial applications, but also in education, health, energy conservation, civic involvement, and public safety, among others. However, the Commission fears that sufficient spectrum will not be available to meet all of these needs.

Continue Reading FCC National Broadband Plan – What It Suggests for TV Broadcasters Spectrum

Broadcasters need to be aware that ASCAP, BMI and SESAC (the "performing rights organizations" or PROs) don’t cover them for all uses of music – especially uses that may be made on station websites.  Offering downloads, podcasts, and streaming video featuring music all require specific permission from music rights holders.  And, as we wrote just last week, incorporating music into recorded commercials also requires specific permission from rights holders – not just your routine payment to the PROs.  As music usually has two different classes of rights holders – those that hold the rights to the musical composition (the lyrics and music in the song, usually held by a publishing company), and the rights to the "sound recording" or "master recording" (usually held by the record companies), knowing who to ask for what rights can sometimes be complicated.  To help explain some of the basic issues of where to go for what rights, Davis Wright Tremaine has put together a Guide to the Basics of Music Licensing, available here. 

The Guide also addresses some of the controversial issues in music licensing, and the question of "fair use", a concept often cited but also often misunderstood.  So check out ourGuide for a basic introduction to the law governing music rights issues. 

In one more indication that the Broadcast Performance Royalty (or "performance tax" as opponents of the legislation call it) is not dead yet is an article in yesterday’s New York Times reviewing the issues at stake in the proceeding.  What was perhaps most interesting about that article was the fact that it appeared only one page away from an article about Internet Radio service Pandora, and a discussion of how that hugely popular service was almost driven out of business by music royalties set by the Copyright Royalty Board in their 2007 royalty decision.  The article about the broadcast performance royalty mentions that one of the difficulties in assessing the impact of the proposed royalty is that no one knows how much it will be, as it would be set by the Copyright Royalty Judges on the CRB.  Yet the Times makes no mention of the controversy over the previous decisions of the Board in the context of the Internet radio royalties, and how such royalties almost impacted services such as Pandora.  

How much would the proposed royalties on broadcasters be?  We have written before on that subject,here.  Under previous decisions using the "willing buyer, willing seller" royalty standard which is set out in the legislation that has passed House and Senate Judiciary committees dealing with this issue, the lowest royalty for the use of music in any case before the CRB has been 15% of gross revenues.  Even using a standard seemingly more favorable to the copyright user (the 801(b) standard that assesses more than the economic value of the music but also looks at the impact that the royalty would have on the stability of the industry on which it is imposed), the royalties have been in the vicinity of 7% of gross revenues for both satellite radio and digital cable radio, the two services that are subject to royalties set using the 801(b) standard.  This is more than broadcasters currently pay to ASCAP, BMI and SESAC – rates which are also currently the subject of proceedings to determine if these rates should be changed (see our posts here and here).   

Continue Reading Proposed Broadcast Performance Royalty Back in the News – Where is It Going?

 

David Silverman participated on a panel discussing the legal aspects of social media at the Great Lakes Broadcasting Conference in Lansing, Michigan on March 3, 2010. His PowerPoint presentation focused on the risks and benefits of using Twitter, Facebook and other social media in the employment context, including use by broadcasters. There are a number of laws that impact both the protection and vulnerability of social media. The bottom line is that stations need to determine the extent to which social media use will be permitted and/or encouraged in the workplace and then develop a social media policy that will delineate the ways in which station employees can use social media with regard to station matters, while at work or at home.  A copy of David’s PowerPoint presentation from the session is available here. 

Using music in commercials is not as simple as just paying your ASCAP, BMI and SESAC royalties.  While many broadcasters think that paying these royalties is enough to give them the rights to do anything they want with music on their stations, it does not.  The payments to these Performing Rights Organizations (PROs) only cover the right to publicly perform music, i.e. to broadcast it.  They do not give you the right to take the music and "synchronize" it with other words or video material, e.g.  you cannot put music in a recorded commercial or otherwise permanently fix it into a recorded audio or video production.  Instead, to make such a production, the producer needs to get the rights to both the underlying musical composition (the words and musical notes) and, if you are planning to use a particular recording of a song, the rights to use that particular recording ( the "sound recording" or "master recording").  Getting these rights may very well require that you deal both with the record company or performing artist whose recording you plan to use, and the publishing company that represents the composer of the music.  And, as some artists may have concerns about having their music used to pitch some products, getting the rights to that artist’s version of a particular song may not be easy. 

Even using the tune of a familiar song in an advertisement, with different words, is not permitted without getting the rights to do so from the publishing company.  A copyright holder in a musical composition has the right to prepare "derivative works" of that composition.  A derivative work is one that uses the original copyrighted material, but changes it somehow – like putting new words to an old tune.  Many think that "fair use" permits the making of a parody of a song, so they are allowed to use the tune as long as they produce a new version that is funny.  However, in the copyright world, fair use is not that simple.  A parody, to allow use of the original tune, must be making commentary or criticism of the original song.  Being independently funny or amusing, or otherwise dealing with some independent social or political issue, does not give you the right to use the music without securing permission from the composer of the music first.  A recent story in the Hollywood reporter’s legal blog, THR,esq.com, told the story of a Congressional candidate, Joe Walsh, who thought that it would be cute to use the music of former Eagle Joe Walsh, to make fun of Democratic politicians.  As set out in that story, Eagle Joe Walsh’s attorney did not find the campaign song very funny, and sent a very strong letter objecting to that use (the LA Times site had at one point had a link to a video of a band playing the candidate’s version of the Joe Walsh song "Walk Away", but it now says that the video has been taken down due to a copyright objection). Don’t let your station be the recipient of such a letter – get the rights to use music in commercials or other productions. 

Continue Reading Using Music in Advertising or In a Video Production? Secure the Necessary Rights – ASCAP, BMI and SESAC Licenses Are Not Enough

The FCC’s rules limiting the common ownership of radio and television stations, and of television stations and daily newspapers, are triggered by the Grade A contours of the television station encompassing the city of license of the radio station, or the city in which the newspaper is published.  Since June, there has been one problem with the application of that rule (Section 73.3555) – television stations in the digital world no longer have Grade A contours.  When adopting service contours for digital television, the FCC specified a Noise Limited Service Contour ("NLSC") as essentially the equivalent of the Grade B contour of an analog television signal – the contour at which the majority of people can receive the signal a majority of the time.  The FCC also specified a principal city contour – the signal level that needed to be placed over a station’s city of license.  But the FCC never bothered to specify the Grade A contour, despite the fact that the cross-ownership rules were premised on that contour.  In a case decided last week involving the financial restructuring of a radio company, the FCC’s Media Bureau staff decided that they would use the NLSC as a proxy for the Grade A contour until such time as the full Commission otherwise directed.

This decision actually makes common ownership of television stations and either newspapers or radio stations somewhat more difficult, as the noise limited contour, approximating the old analog Grade B contour, actually extends further than where the Grade A contour would have reached (when a digital station replicated its analog service area).  Thus, using this standard, the owners of a television station could be precluded from having attributable interests in radio stations or daily papers in more communities than would have been the case in the analog world.  As the FCC is now embarking on its review of the multiple ownership rules (as we have written before), the FCC may well revisit this issue in the course of that review.

Continue Reading FCC Clarifies Application of the Multiple Ownership Rules After the Digital Transition Makes the Grade A Contour Disappear

Getting legal education from a fake news program is always dangerous, but a recent episode of the Stephen Colbert Show, here, nicely demonstrated trademark law.  The clip illustrates what we have written before, that the term "Olympics", like "Super Bowl" and "March Madness" are trademarked, and attempts to use them in commercials or promotions, or to otherwise imply that a product or program is associated with one of these events, can lead a broadcaster into legal trouble and potential liability.  The Colbert program shows Stephen discussing with his brother, a trademark lawyer, Stephen’s ideas for associating his program with the Olympics and, when his brother consistently rejects the plans, Colbert tries to change the 5 ringed Olympic symbol to five interlocking triangles, and other symbols that are similar, and Colbert is told that each is likely to bring a lawsuit.  Only when Colbert abandons the Olympic name, and the symbols, and comes up with a name – The Quadrennial Cold Weather Athletic Competition – that is the equivalent to the "Big Game" that many use when referencing the Super Bowl, was the brother satisfied that Colbert would not get successfully sued.  Stations should take similar precautions when thinking about using these terms in their programs.

Using the trademarked word or phrase in news reports about the event, or in other commentary, is in many cases just fine.  But trying to imply an endorsement or connection to the event for which true sponsors pay "big bucks", can get you into trouble, as explained by Mr. Colbert.  Thus, just as we looked to Colbert for examples of how music licensing works, and on when a candidate becomes legally qualified, he illustrated another legal concept.  When will we next look to Mr. Colbert for an explanation of the law?  Stay tuned.

When someone "lobbies" the FCC on issues pending in a rulemaking proceeding or other contested case, the Commission requires that there be a certain amount of disclosure of the communications made to Commission decision-making personnel.  The rules governing the communications with the FCC’s decision-making personnel in such cases are called the "ex parte" rules.  These rules preclude some communications entirely (e.g. oral communications trying to influence a decision in a contested individual case unless all parties to the case are present, or any presentations in rulemakings in the last week before the FCC meeting at which it will be considered), and allow some communications, but with disclosure to the public (e.g. comments made to FCC Commissioners by parties, written or oral, in rulemaking proceedings).  The FCC has just commenced a new proceeding to look at whether the disclosures that are made after some of the communications with decision makers are detailed enough, and also whether new technologies used by the FCC (like its Blogs for various subjects including the blog dedicated to comments on the Future of the Media Proceeding, about we’ve written before) make some of the ex parte rules outmoded.

A full summary of the proceeding is available in our Davis Wright Tremaine advisory, here.   Comments are due 45 days after the Notice of Proposed Rulemaking in this proceeding is published in the Federal Register.