How To Stay In Tune With Music Copyrights

These days, most discussions concerning copyrighted music focus on the multiple regulatory measures being considered in order to crack down on copyright, trademark and patent infringement. In addition to proposed legislation, such as Senate Bill 978, numerous “intellectual property enforcement legislative recommendations” were laid out in a white paper issued by the president’s U.S. intellectual property enforcement coordinator.

In addition to monitoring the potential impact of new rules, it’s essential to remain vigilant in our compliance with current copyright regulations. Even the slightest unauthorized uses of copyrighted music in television programming, advertisements and content developed for online and other multiplatform content carry significant financial penalties.

With that in mind, MFM — the Media Financial Management Association — asked  two of the industry’s leading attorneys on copyright issues, Kevin Goldberg and David Oxenford, to identify the areas of greatest risk for violating copyright issues and how to ensure our compliance with this ever-changing landscape. So, in addition to providing a full article for each issue of our two-part series about music licensing, they collaborated on two sidebar pieces for the September/October issue of our The Financial Manager (TFM) magazine that contains the first articles in the series. Digital copies of the current issue are available at MFM’s website. Given the topic, I want to assure you that you have our permission to download the publication.

Goldberg, an attorney with the law firm Fletcher, Heald & Hildreth PLC, serves as both counselor to and advocate for several major press organizations including the American Society of News Editors and the Association of Capitol Reporters and Editors. He has presented on this topic at Media Finance Focus, the annual conference for members of MFM and its BCCA subsidiary. For the September/October issue of TFM he contributed an article entitled, “Packing a Bigger Performance-Rights Punch” which looks at the government’s increasingly stronger stance on copyright infringement. His contribution for our upcoming November/December issue entitled, “The Commercial Cash Register” and addresses what needs to be done to clear music for commercials.

Oxenford, an attorney with Davis Wright Tremaine LLP, has represented broadcasters before the FCC, the courts and other government agencies for almost 30 years and is a frequent presenter on copyright issues at industry forums, including Media Finance Focus. In the September/October issue of our magazine he wrote about “Dodging the Digital Blues,” the rules you need to know for using music in digital media. Coming in November/December is “Rules of the Royalty Road,” which discusses what you need to know before deciding to use a piece of music in a broadcast or cable channel programming.

Before you turn to the magazine, I’d like to give you a short summary of the areas Goldberg and Oxenford feel require our greatest diligence when it comes to copyright protection. As the producers of creative content, which we are increasingly licensing for use by others, compliance with these rules isn’t just a means for avoiding civil or criminal penalties. It’s also part of our responsibility to uphold the commercial value of television content.

According to Goldberg and Oxenford, one of the greatest copyright challenges stations face today comes with our understanding of the “fair use” of copyrighted music. They call this “one of the most misunderstood concepts in copyright law.” Instead of being a formula which, when applied correctly, will tell you whether you can use a piece of music without obtaining a license, our experts say the fair use rule is actually “applied on a case-by-case basis to cover uses such as teaching, research, criticism, news reporting or parody … the term is actually quite amorphous and, therefore, unpredictable.” They go on to note that a court will review four factors when determining whether a particular use is fair:

• What is the purpose and character of the copyrighted work? If the work is for commercial release (as is the case with most music), the experts believe its use is less likely to be deemed fair.

• What is the nature of the unlicensed use? “Again,” they warn “if commercial, it is less likely to be fair, whereas there is more leeway for use in news reporting or for educational purposes.”

• What is the amount and substantiality of the portion used? As Goldberg and Oxenford observe: “Note that this is amount and substantiality, hence, the ‘hook’ from a popular song may only be four or five notes, but may be considered substantial.”

• Most importantly, what effect will the unlicensed use have on the potential market for the copyrighted work? The authors say a good rule of thumb for answering this question is whether the use is more likely to leave a listener saying, “I don’t need to buy that” or “I gotta have that”? If it’s the latter response, the use is more likely to fall under fair use, in their experience.