In recent weeks, I have had several calls from broadcasters asking if it was permissible to copy articles from other news sources and post them on the station website – with attribution to the original source. As I told them, posting content without permission of the copyright holder can lead to big problems. We have written about these issues in connection with the use of photos and video (see, for instance, our articles here, here and here), and recently even using embedded photos from a social media site have been called into question (see our article here). The copying of any substantial part of a news article raises the same issues as posting pictures or video found on the Internet onto your site. Such actions diminish the ability to of the content’s owner to profit from its own content. If someone can read a story on a broadcaster’s website, why would they need to go to the site of the originator of that content – even where attribution to the originating site (and even a link to that site) is given on the broadcaster’s site?

Years ago, there were many websites that would “aggregate” news by taking significant portions of news stories from other sites and make it available to the aggregator’s readers. There was a rash of lawsuits where content owners, including newspapers and others, claimed that aggregators using even a paragraph or two of the original story were infringing on their rights to their content. Content owners had real concerns about this aggregation sites, as a reader can usually get the gist of the story from the introductory paragraphs and, even when the aggregator provided a link to the full story, the readers would be far less likely to go to the full story when they had already been given its substance. Today, to avoid these lawsuits, most such news aggregators provide at most a headline (and sometimes even the headline can be creative enough to pose a copyright risk if run on an aggregator’s site – so just a generic paraphrase of that headline is often used), and at most a very brief description of the story on the originating site – a description that only directs the users of the aggregator site to the originating site and does not use any of the originating story’s language or original reporting, e.g. a statement that “you can find a good story about Virginia’s collapse in the NCAA tournament in this story” or “for more developments on latest in the personnel changes in the Trump Administration, check out this story in the Washington Post.” Using more than this kind of generic referral is a risk, and fair use is no often going to be available as a defense.
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Almost every week, we write about some legal issue that arises in digital and social media – many times talking about the traditional media company that did something that they shouldn’t have done in the online world, and ended up with some legal issues as a result. Two weeks ago, I conducted a webinar, hosted by the Michigan Association of Broadcasters and co-sponsored by over 20 other state broadcast associations, where I tried to highlight some of the many legal issues that can be traps for the unwary. Issues we discussed included copyright and trademark issues, a reminder about the FTC sponsorship identification rules for online media, FCC captioning obligations, privacy implications, as well as discussions about the patent issues that have arisen with the use of software and hardware that makes the digital transmission of content possible. Slides from that presentation are available here and, for the full webinar, a YouTube video of the entire presentation is available below which can be reviewed when you have some spare time over this upcoming holiday or at any other time that you want to catch up on your legal obligations.

Some of the specific issues that we talked about are familiar to readers of this blog. We discussed the many issues with taking photographs and other content found on the Internet and repurposing them to your own website without getting permission from the content’s creator (see our articles here and here). Similar issues have arisen when TV stations have taken YouTube videos and played them on their TV stations without getting permission from the creator. Music issues arise all the time, especially in producing online videos and creating digital content like podcasts, as your usual music licenses from ASCAP, BMI, SESAC, GMR and SoundExchange don’t cover the reproduction and distribution rights involved when content is copied or downloaded rather than live-streamed (see our article here). The presentation also cautioned companies to be careful about trying to rely on “fair use” as there are no hard and fast rules on when a use of copyrighted materials without permission is in fact fair (see our articles here and here on that subject).

Similarly, there are many other potential pitfalls for digital media companies. We’ve written about some of the FTC rules on requiring sponsorship identification on sponsored digital content – even tweets and Facebook posts (see our articles here and here). Plus, there are always issues about privacy and security of personal information that sites collect – and particularly strict rules for content directed to children. And, as many stations found out when a company asserted patent infringement claims about digital music storage systems used by most radio stations (see our articles here and here), patent issues can also arise in connection with any companies use of digital media.
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In recent days, the press has been full of stories about Axl Rose from the band Guns N’ Roses sending take-down notices to websites, including Google affiliated sites, that feature a picture taken of him from one of his concerts making him look to be overweight (see, e.g. stories available here, here and here). The photos are often accompanied by captions, reinterpreting Guns N’ Roses songs by modifying the lyrics to include references to food or overeating or otherwise making light of the picture. The take down notice is premised on Rose’s alleged ownership of the underlying photo. According to the press reports, Rose requires all professional photographers taking photos at his concerts to sign releases, giving Rose ownership of all copyrights in the images taken. The legal issues raised by the take down notice are many – including reflecting on the recent calls for reform of the “safe harbor” provisions of the Digital Millennium Copyright Act for user-generated content much in the news lately, particularly with respect to YouTube videos including music (see our article here). No doubt, however, the first issue that will be considered in answering these take down notices is whether the images and associated commentary constitute “fair use.”

The DMCA has adopted a “safe harbor” for “internet service providers” including website owners who host user-generated content – content that is posted not by the site owner and its employees, but instead by users of the site (see our article here). As the hosts of these sites do not control what is being posted, Congress in adopting the DMCA, thought that it was important that the site owners not be liable if users post content that could potentially infringe on some third party’s intellectual property rights. However, the site owner must take certain steps to minimize the posting of infringing content – including making clear in its descriptions of the proper use of the site that users need to respect intellectual property rights, and providing both on the site and in a registration form filed with the Copyright Office the name and contact information for a person who copyright holders should contact if they believe that infringing content has been posted on the site (the Copyright Office is proposing changes to that form, see our article here). Copyright holders can then notify these identified individuals of the perceived infringement by sending what are commonly referred to as “take down notices.” Certain formalities need to be followed in sending these notices are provided under the provisions of the DMCA, including a specific identification of the infringing content, and a good faith belief that the content is in fact infringing. In connection with any take down notice and the decision of the site owner as to whether to honor that request, the question of fair use must be evaluated.
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Social media and other digital platforms are playing a more and more important part of the business of traditional media companies.  In the last few weeks, I’ve participated in two seminars, looking at the legal issues that arise in these areas.  At the Winter Convention of the Wisconsin Broadcasters Association, I conducted a seminar outlining the legal issues that broadcasters need to consider in their digital media endeavors.  The slides from that presentation are available here.  We talked about many issues, some of which I write about regularly (e.g. music rights), and others that I will write about more in coming weeks, including privacy, online sponsorship attribution, user-generated content, and other issues that arise in the online world.  One issue that we spent a significant amount of time discussing was copyright – including specifically concerns that can arise when stations take content found on the Internet – pictures, videos, music or other creative works – and appropriate it for their websites or other digital properties, without bothering to get permission. 

Many broadcast employees, as well as many others throughout society, think that if something is on the Internet, it is there to be used by others, and no rights need to be obtained to use that material.  That is incorrect, and can get users into trouble.  In recent months, we have seen many lawsuits filed against broadcasters, including against some of the biggest broadcasters in the country, over improper use of photographs found on the Internet.  What often happens is that someone at a station is putting together some content for a station website – say the arrival in town of some band whose music the station plays.  Rather than calling the band’s management company or the concert promoter to get pictures to use in the article about the artist or the upcoming show, the station employee finds some picture on the Internet, copies it through a simple mouse click or two, and pastes it onto the station’s website.  A few months later, a cease and desist letter arrives, or worse, an immediate demand is made for a significant sum of money, claiming that the use of the photo infringed on the copyright of the photographer who took the pictures.  How can this be, asks the station employee?  When someone posts something in the Internet, isn’t it free for anyone to use?
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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). 
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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

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. 


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The term "Super Bowl" is a trademark owned by the National Football League, and it is protected very aggressively. What does that mean?  The biggest no-no of all is to use the term "Super Bowl" in any advertising or promotional announcements that are not sanctioned by the NFL.  This prohibition includes sweepstakes and contests as well.  Advertisers pay high licensing fees to the NFL for the right to use the term "Super Bowl" in their advertising.  You will almost certainly hear from the NFL’s attorneys if you use the term in advertising without explicit authorization from the NFL.  So no "Super Bowl sales" in your ads – and don’t refer to your station as the "Super Bowl Authority" in your promotional statements.  These restrictions explain why you often hear it referred to as "The Big Game."  But this restriction does not mean you cannot utter the words on air under any circumstances. 

There is a court-created trademark concept known as "nominative fair use."  Under this concept, trademarks can be used when necessary under certain conditions.  First, the mark must not be readily identifiable in any other way.  For example, you do not have to refer to the Pittsburgh Steelers as "the professional football team from Pittsburgh."  Secondly, you can only use the mark to the extent necessary to identify it.  Repeated gratuitous use would cross the line – for instance if you repeatedly state that your station is "the place to hear everything about the Super Bowl."  And third, you cannot do anything to suggest a false connection or sponsorship arrangement.   What does this really mean?  It means that DJs can use the term "Super Bowl" editorially in discussing the game on air (but not in a way to imply that the station has a connection to the game, or not in a repeated way analogous to a station slogan or positioning statement).  It means that news stories about the game can refer to the "Super Bowl."  The NFL will not consider such uses to be trademark infringement so long as the use is reasonable.  In fact, from an editorial perspective, the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.


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