Are You Risking A Marvin Gaye-Type Fine?

When you read that Marvin Gaye’s estate won a $7.3M judgment for copyright infringement against Robin Thicke and Pharrell Williams for wrongfully appropriating elements of Gaye’s “Got to Give It Up” in Thicke’s and Williams’ Blurred Lines, did you worry at all that your station might be at risk of a similar situation? Are all of your bases covered? While the Marvin Gaye side litigation involved songs, misappropriation due to a substantial similarity can extend to just about any copyrighted work. Let’s be sure this never happens to you, and for that we turn to broadcast attorney John Garziglia…

For radio broadcasters, there are several ways that immediately come to mind in which misappropriation of copyrighted or other protected works might occur. Let’s leave aside the copyrights required for playing songs on the air as administered by ASCAP, BMI, SESAC and the two upstarts, as well as the controversy surrounding the radio station performance fee exemption for recorded music. Also, let’s assume that the required fees and reporting are being submitted to SoundExchange if webcasting.

Rather, let’s look at some of the other ways a radio station might infringe copyrights and other intellectual property protection, either innocently or knowingly.

Podcasting is one of the most recent examples of potential copyright infringement that comes to mind. Podcasting is not streaming that is subject to the performance license administered by SoundExhange. Rather, podcasting is the creation of a recorded program that is then distributed on demand. None of the blanket music copyright licenses that a radio station has to broadcast recorded music gives any permissions to put the same recorded music, even of a radio program being broadcast, into a podcast. One of my communication law colleagues, David Oxenford, recently did a deep dive into this subject in “Beware of Music in Your Podcasts – SoundExchange, ASCAP, BMI and SESAC Don’t Give You the Rights You Need.”

Another sometimes forgotten bar on using copyrighted music for which specific permission absolutely must be obtained is for the use of any recorded music, or any song, in a commercial announcement. TV commercials are replete with the use of popular songs. Each one of those songs has been individually negotiated for, likely for a substantial payment, by the advertiser or agency. Using a hit song in a commercial without a specific license to do so is a fast route to a claim for substantial copyright damages. For in-house creative, a broadcast station’s production library has music specifically licensed to use in radio advertising campaigns. Even for station promotions, unless the station has permission to use a particular song or recording in the specific promotion, its use is likely a significant copyright violation.

Delving more into radio advertising, many aspects of the commercial or promotional campaigns created by ad agencies or other stations are protected by copyright. The days of hearing a great ad campaign in a distant market, and using substantial elements for a different advertiser in your market, are long gone if such days ever existed. Ad agencies and broadcasting entities can and will protect their advertising campaign creations.

With news staffs at radio stations being sparse, there is a temptation to rely on newspapers for news copy.  Newspaper stories are copyrighted.  No more needs to be said.

Photographs and graphics on the Web are white-hot attractions for copyright infringement. Every station strives to have a striking and attractive website and Facebook page. The use of photographs and graphics found on the Internet is as easy as copy and paste. An entire industry of copyright trolls has flourished based upon posting photos and then asking for $5,000 or more when infringement is discovered. Do not use any photo or graphic found on the Web unless due to age or other factors it is in the public domain, or specific permission to do so is obtained.

An entire article could be devoted to service marks and promotional slogans. Again, the days of hearing a great slogan in a distant market and appropriating it are long gone. Most broadcast groups, programming suppliers, and programmers have fully protected their service marks and trademarks with federal registrations and do not take kindly to unauthorized uses. Because just about every station has a website which is available anywhere, a claim of confusion can be made even if the slogan or mark is used in a distant location. An unauthorized use can be expensive if the holder of the mark sues.

Finally, do not sing “Happy Birthday” at any large public radio station gathering. Warner Music Group claims a copyright on any public performance of the song according to Snopes.com  (“Happy Birthday, We’ll Sue”).

The “Happy Birthday” example illustrates how copyright is often complicated and unclear, and how potential infringement is lurking beneath many everyday activities. In 2007, law professor John Tehranian wrote about how many times each day he likely accidentally infringed on a copyright just doing normal things, observing that he probably committed at least 83 acts of infringement and faced a daily  copyright infringement liability in the amount of $12.45 million. (“How Many Times A Day Do You Violate Copyright Laws Without Even Realizing It.”)

While copyright law is, at best, a mess, the potential liability for a radio station copyright infringement claim is real, both for actual damages and for stiff statutory damages even if no profit is made as the result of an infringement.   As with the success of the song “Blurred Lines'” the higher the visibility and profitability of a potential copyright infringement, the greater is the likelihood that a copyright holder will make a vigorous claim for damages. With any successful the radio station, there is a need for continuing good legal counsel on copyright compliance.