TV STATIONS MUST REMEMBER TO PAY THE PIPER

The radio industry isn't alone in singing the blues about rules affecting new media applications for music. From background music scores to online replays of musical performances to user-generated video, TV networks and stations are finding that extending their programming to the Web requires paying the piper for the privilege.

In using music in their TV productions, broadcasters know they must obtain synchronization rights for reproducing a musical composition and a "master use" license for using a recording of a song when that song is used in connection with a recorded video production. 

However, as attendees learned during a Distance Learning Seminar hosted by BCFM, using these productions on the Internet, and creating productions exclusively for the online audience, requires special considerations. 

Radio stations can repurpose over-the-air content for online use if they 1) observe certain standards set by the Digital Millennium Copyright Act; 2) pay announced rates established by the performing rights organizations for the use of musical compositions on the Internet; and 3) pay royalties to SoundExchange for the compulsory license for the use of sound recordings.

But TV stations most often need to get additional rights from the copyright holders of songs and recordings before they can be used on their Web sites. 

In the Distance Learning Seminar, David Oxenford and Robert Driscoll, music licensing experts at the law firm of Davis Wright & Tremaine, reviewed the murkier areas that need to be addressed when webcasts—including advertisements and on-air promos—contain licensed compositions or recordings.

First off, broadcasters need to be careful that rights to use music in productions aired on a TV station are broad enough to cover repurposing of that content online.

There have been a number of issues raised in many contexts, not just music, where rights to a copyrighted work have been obtained for one medium, and one medium only, and do not extend to use on the Internet. Particularly for older productions, created before video on the Net was a gleam in people's eyes, the rights granted for the use of music in a video production may need to be extended before that production can be used on a station's Web site. 

User-generated content provides another area of concern. In these days of YouTube and MySpace, many stations give their viewers the opportunity to post their own video production on the station's Web site. While copyright law provides some protection to parties who host an online bulletin board type of service from copyright liability for infringing uses posted by third parties, the law is still being tested.

And the law imposes duties on the bulletin board provider before he can claim these protections.The provider must act promptly to remove any infringing material once the provider is put on notice that the infringing material exists and the provider can't encourage or promote the infringement.

So, terms of use for sites that allow viewers to post their own videos should be carefully drafted to warn users that they should not use copyrighted material without permission, and stations should be careful about contests that might be seen as encouraging copyright infringement (like a "make your own music video" contest, unless you have rights to use the song or songs that the videos will feature).

Putting station content on line also exposes it to a far wider audience, often making it available to viewers who might notice a copyright infringement that local audiences would overlook. So stations should be extra careful about all uses of music that might show up online.

One particularly troublesome area is the use of music in commercials. A popular recorded song cannot be used in a recorded local commercial without obtaining the rights from the copyright holder in the composition and from the record label that owns the master recording. Nor can the song be re-recorded by a local group and used in a recorded local commercial without obtaining the rights from the copyright holder in the composition.

Even what might be thought of as a "parody" of a song, sung to the tune of a popular song, but promoting the products of a local merchant, can be a problem. While parodies are protected by copyright law, the parody must meet several tests before it is protected, including that it is making fun of the copyrighted work itself. A commercial for a product using the tune of a popular song, even if it is funny, may not be protected if it is not making fun of the underlying song, but is, instead, simply being used to promote a product.

The murky world of copyright law presents few black and white answers, and many traps for the unwary. So broadcasters need to proceed with care in their online ventures.

As we continue to explore new ways for growing our businesses through new communications technologies such as the Internet, we can be sure that we'll also need to address how it affects our interdependent relationships with the creative community.