SPRINGFIELD, Mass. –– In a recent article, Michael Harrison predicted that Intellectual Property Law would dominate talk radio’s legal concerns in the era that is unfolding. (It is filed at www.talkers.com under Michael Harrison and is titled “The Ticking of the Clock.”)

As talk programming evolves into new means of digital distribution through advances in technology, so does our need to understand intellectual property. While evolutionary, the nature of the rights themselves –– to control and exploit the products of one’s creativity and innovation –– remains consistent, the manner by which they are expressed and exchanged is constantly attempting to adapt to advances in technology.

The invention of, in turn, the printing press, the phonograph, radio and television broadcasting, cable, transmission from satellite, VCRs, CDs, DVDs, and now the internet has affected both the form and the substance in the interpretation of intellectual property rights.

Intellectual property has gained importance in this digital environment as, increasingly, business assets are reflected in intellectual as opposed to physical property. No longer do radio stations have rows upon rows of records with each show going out into the ether; content is digital, it is archived, and it is easily available to the consumer by means of the internet.

Between the vast availability of intellectual property on the internet, the ease of copying and distributing said material, and the relative anonymity afforded these transactions, difficult issues rise to the surface. Key among these challenges is the expectation among many users that information and intellectual property sourced or downloaded from the internet should be free of charge. If it was free on the airwaves, why isn’t it free on the internet?

Marketability is always an issue. While surveys have shown that consumers are gradually becoming more willing to pay for online content, the numbers also show that consumers are not willing to pay for content that they currently get or recently got for free. Radio, by means of the internet, provides access to thousands of global radio broadcasts both in real time, and on time shift delay. The people who find the balance between free services with advertising versus an ad-free premium version will find the revenue.

With so much digital content, there are many marketing considerations to make when presenting this material on the internet. The first is to make sure that ownership and control are established and that the intellectual property is protected.

Another trend illuminated in the article by Michael Harrison that applies to the importance of intellectual property is that of talk show hosts originating their shows from remote locations (homes, offices, etc.) other than the traditional radio station studio. When shows no longer originate from the station’s studios but from studios owned and operated by the hosts themselves, and the hosts increasingly act as independent contractors as opposed to employees (yet another trend), ownership of the content can come into question. Those that demonstrate an understanding about the type of property that exists and how said property can be marketed will profit when these things are ironed out in contracts or agreements.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

Rapper 50 Cent has another notch in his court battle belt as a federal judge in Newark dismissed an infringement allegation against both himself and his record label, G-Unit.

The plaintiff, author Shadrach Winstead, claimed the rapper plagiarized his book, The Preacher’s Son – But the Streets Have Turned Me Into a Gangster, directly ripping off elements for 50 Cent’s 2009 movie and album of the same name, Before I Self Destruct.

According to 50 Cent’s legal team, the judge tossed the case after determining that the only genuine similarities between the works were a main character that came up on the mean streets of Newark. Phrases that were arguably points of contention were deemed common and not infringement worthy.

…

Matthew David Howard Smith, 23, of Raleigh, North Carolina, pleaded guilty in Virginia federal court for copyright infringement. Upon sentencing (December 16th, 2011) he faces up to five years in prison for each count.

According to court documents, Smith was a founder of NinjaVideo, which operated from February 2008 until it was shut down by law enforcement in June 2010.

The site enabled visitors to illegally download movies and television programs still in theaters or that had yet to be released.

Users were asked to make donations to the site, which provided access to private forums that contained, more material for download. Officials said the operators allegedly collected more than $500,000 during the website’s two-and-a-half years of operation.

SPRINGFIELD, Mass. –– Good talk radio hosts draw upon multiple sources for material. News, media, pop culture and their own lives and interests are standard sources for talking points. In today’s digital world two pressing legal questions should be on your mind:

1) How difficult is it to infringe upon someone’s copyright when borrowing a concept, the goodwill, or even actual pieces from someone else’s work?

2) How difficult is it to protect your own work from having others use too much?
Copyright protection is only available for the expression of ideas and not the ideas themselves. This is known as the idea/expression dichotomy.

The “idea” is to, say, do a show on conservative political issues. The idea, furthermore, is to spin (or “position”) an issue in a particular way as to highlight a thought-provoking point. The protectable “expression” is the recording of the segment in which you make the point. While you may have been the first person to make such a point, only your exact expression is protected and other –– perhaps not as talented –– hosts can run with the idea their own way as they see fit.

The purpose for this distinction is to balance the First Amendment goals of free expression with the copyright goals of advancing the useful arts and sciences by affording protection to the creators of such work.
This idea/expression dichotomy is ultimately the crux of the analysis regarding potential copyright infringement.

It is very obvious in a painting. If you paint a picture of the sun setting into a lake by your house, you cannot prevent others from painting the same scene. However, you can prevent someone from taking your original painting and turning it into a poster for sale.

In photography, a recent case decision also makes this concept seem obvious. In recent news, photographer Ryan McGinley, known for work that presents a lush vision of youth culture, was sued by another photographer who accused him of relying too heavily on her work for his inspiration. Janine Gordon filed suit against McGinley saying that at least 150 of his photographs are “substantially based” on her work and are violations of her copyright protections. She lost because artists can have no claim to ideas such as an interracial couple kissing, a person gazing skyward with outstretched arms, or a man riding on a spotted horse.

In radio, it should be equally as obvious despite talent wanting to think that there are less potential iterations for ideas as there are in painting or photography. Unless someone is using the exact words –– using the same ideas even in extremely similar ways will not be enough to evoke copyright infringement. Of course, this goes both ways. If a host is using a magazine article as part of his preparation, and recites the article word for word –– even only in part –– there could be infringement (though, there may also be a fair use defense, but that is for another article). On the opposite side, if a website reposts content from your show on their page, it too could be infringement.

Understanding the idea/expression dichotomy will allow you to use material without infringing upon others’ protected content while also knowing when usage of material is infringing your rights.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, Mass. –– When choosing to use non-original materials as a portion of programming, it is important to make sure that such usage falls squarely within the accepted affirmative defense of fair use.

A New Jersey federal appeals court recently reinstated a copyright and defamation lawsuit against New Jersey talk radio station, New Jersey 101.5 (WKXW-FM) and its former PM drive team “Carton & Rossi.” Craig Carton currently co-hosts the WFAN, New York morning drive show “Boomer & Carton.” Ray Rossi hosts an evening show on New Jersey 101.5.

The case was simple. New Jersey Monthly (NJM) hired a photographer to take a photo of Carton & Rossi to accompany an article to be published. An unknown employee of WKXW-FM then scanned in the image from NJM and posted it to the WKXW-FM website, among others. The image, as scanned and posted, cut off reference to NJM’s story title, and eliminated the gutter credit identifying the photographer. The station invited visitors to alter the image and submit resulting versions. In all, the station posted 26 of these submissions. At no time did the station or the hosts ask the photographer for permission, and as a result –– the photographer sued.

How could a radio station be liable for using a photo of their talent? They don’t own the copyright to do so. Here, the magazine didn’t own the copyright either. Their original contract stated that the photographer retains the copyright.

The appropriate language of the Copyright Statutes contain a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship and research. The court must consider the following four factors when determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The station argued that their usage of the image was “news reporting” –– a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use. The court disagreed. News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.

In order for a work to be determined fair use as news reporting, the news outlet must create a new work that, in part, comments on the original work and uses such pieces of the original in the process.

If the radio station is the only outlet breaking this news, and no similar broader news coverage or editorial commentary existed, such as this case, it severely undercuts the argument that such news reporting gives any new meaning to the original image. In such a scenario, the court determined that it seemed more likely that the station did not want to go to the trouble of creating its own eye-catching photo but simply appropriated the image for the same purpose.

Lastly, the court determined that most commercial usage couldn’t be considered fair usage. The station never contested that its usage was commercial, and therefore the court found it so, thereby negating their fair usage assertion.

While the posting of the 26 altered versions of the original image may fall within the court’s view of news reporting –– as it would be adding new meaning to the original image, both literally and figuratively –– the court concerned itself with the initial posting which did not fall within such an affirmative defense.

Additionally, the radio station argued that their usage was news reporting, but never argued that such a usage was non-commercial in nature. Considering that radio stations are inherently commercial enterprises, effort needs to be spent on the assertion that any particular usage when used as content, whether deemed to be infringing or not, is not the sole contributing factor into whether or not a station is commercially viable. Obviously, quality content –– as a whole –– dictates marketability, but the argument needs to be made that no particular piece of content is necessary to commercial marketability.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, MA — On May 16th, at 6:30 am Stefanie Gordon boarded a Delta flight from New York to Palm Beach. Somewhere along the flight, out the window of her airplane seat, she took a photo, tweeted it to friends when she landed, and then headed off to spend the day with her father. Gordon’s now-famous photo of the space shuttle Endeavour soaring through the clouds got her an overwhelming amount of attention but also landed her smack in the middle of an ethical and legal debate inherent to the future of the internet.

The photo was viewed nearly one million times, and has been showed by hundreds of news outlets around the world. She was paid by precisely five news organizations.

This was not the first time this happened. Janis Krum landed in the middle of the digital rights debate in 2009, when a passenger aircraft made an unexpected landing in the Hudson River. Krum took the one photo on his iPhone and instantly tweeted it from the ferry he was on a few feet from the plane, before helping passengers off the floating aircraft. He earned virtually nothing from his famous photo, which was copied and used by both commercial and private publications around the world.

While some think everything digital on the internet should be free, commercial outlets that sell a product using images and videos should feel compelled to pay for content they use.

This affects the broadcaster in two ways: first, there is potential liability for re-posting content that is found online; second, you need to protect your own original content before posting it online. And, yes, in today’s world of media convergence, photography falls into the elemental arsenal of radio broadcasters!

The mere act of taking a photograph grants the photographer copyright in the image Sharing it on a social media sites – in theory – does nothing to limit or reduce that fundamental right. So, unless the photograph is posted with a message that says, “copy this and pass it along” the photographer would maintain the copyright in the image. This applies to photographs, text, audio, or video content.

While copyright may attach immediately upon pressing the shutter or record button, so comes with it the cloud of legal uncertainty. Professional photographers are well schooled in controlling image distribution, but in the era where “everyone is a photographer,” it is often an amateur that shakes things up.

It is happening more often than ever that an amateur takes an amazing photo and does not realize its inherent value right away. Gordon immediately tweeted it, and that just let the floodgates open. People need to realize that their work – especially that which is newsworthy – may have value.

Amateurs probably wouldn’t consider this in the middle of such excitement, but it is possible to sell more valuable exclusive rights to a news outlet, or to find an agency to do the bidding for you. The days when Newsweek and Time magazine would fight over the rights to a photo with six-figure checks are dwindling, but there is still value in exploring value ahead of publication to social media.

News outlets can publish content under the theory that it is protected First Amendment speech. However, its application as fair use is widely debated. In a situation when a news outlet has no alternative access to an important image, they would be protected by fair use. However – those cases are much rarer than one would expect.

Meanwhile, retaining copyright doesn’t mean retaining all rights. A particularly vexing problem facing users of services like Twitpic involves the ever-changing fine print in the sites’ terms of service agreements. Both Gordon and Krum used Twitpic to share their photos. Currently, Twitpics’ terms of service informs users that the firm has the right to resell any images loaded by original rights holders onto its servers. In other words, Gordon has the right to sell her Space Shuttle picture, but TwitPic does now, too. They take an unlimited non-exclusive license to use the image – and by uploading it, you give them that right.

It is inevitable that amateur users will increasingly find themselves in possession of powerful, newsworthy photos and video content… and the temptation for professionals to use them without acquiring the rights – either claiming fair use based on their being newsworthy or the belief that since it was found for free on the internet, the creator doesn’t care about their rights in it – will only lead to future liability.

SPRINGFIELD, Mass. –– Understanding ownership rights of audio content is one of the more common issues to cross my desk. While most of the information that exists on the topic, including court cases and their analysis, is centered on music-based audio, the rules can be similarly applied to both spoken- or music-based content. Therefore, this article will examine the application of such rules to music and aptly apply them to spoken-word content.

A work made for hire is defined as a work created by an employee within the scope of the employee’s employment. A work made for hire can also be created by a contractual agreement between two parties.

Unlike radio contracts, most recording contracts are classified as independent contractor relationships and as such, recording contracts are not usually deemed as works made for hire. However, record labels are adding work made for hire clauses.

Under the definition of “work made for hire” in the Copyright Act, works are eligible for such status if there is an employment relationship or if certain types of works are commissioned (as detailed in a contract). These include “a contribution to a collective work” and “a compilation.” Both of these categories include sound recordings.

Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the masters of the recording.

As a general rule, artists retain the right to have all masters returned after a 10-year incubatory period. But, now that is changing as the industry standard is shifting from independent contractor relationships to works made for hire.

In September 2010, Bob Marley’s family lost a lawsuit against Island Records seeking the copyrights to several of his best recordings. “Each of the [recording] agreements provided that the sound recordings were the ‘absolute property’ of Island,” U.S. District Judge Denise Cote wrote. She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual “right” to accept or reject what he produced.

If the parties do not expressly agree in writing that a sound recording is a work made for hire, and an employer/employee agreement is not in effect, then the collaborators are joint authors of that sound recording. The applicable sections of copyright law, taken together, mean that unless each author’s contribution is distinct, discrete and separately distinguishable within the collaborative work, the law may deem them to be joint owners of the whole. Absent an agreement to the contrary, authors own the work jointly and equally.

Each joint author, therefore, has the right to exercise any or all of the exclusive rights inherent in the joint work. This means that each author can grant third parties permission to use the work on a non-exclusive basis without the consent of other joint authors. Each author may also transfer his or her entire ownership interest to another person without the other joint authors’ consent. Each author may also update the work for his or her own purposes. Additionally, each joint author has a duty to account to the other joint authors for any profits received from licensing the joint work. This certainly could be a problem if you intended on maintaining exclusive control over the joint work.

What does this mean for you? It means that you need to read and understand the paperwork that you are signing when you are working on creating audio content.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at Matthew@matthewharrison.com. Meet him at the New Media Seminar June 10-11 in New York City.

A camera sees differently than our eyes do and can be used as a means to communicate a story. For most artists – the story goes beyond themselves and capturing moments from their lives and the literal content contained within the frame. The photographs no longer reveal literal truth but instead present a metaphor for a greater truth. The viewer is engaged in identifying the metaphor and appreciating the relationship that the photographer has demonstrated with the subject. This portfolio is both. However, there is a third component of this portfolio that makes it worthy of being the work product of a Masters Degree Scholar: these photographs were specifically created in such a way as to maximize a viewers engagement with these images. I applied scientific research to my photographic process – in order to maximize the portfolio’s ability to engage the viewer.

SPRINGFIELD, Mass — A key aspect of my job as a manager of talent and attorney is to development plans that not only include business and legal components but also take into account the possibility that the projects we are planning might, in fact, become successful. If the pursuit of success is what drives us – then shouldn’t we have a plan that takes the possibility of success into consideration? This is especially important when things involve other people, facilities owned by employers, components from the internet, and so many potential legal and ethical entanglements. It is amazing how often people don’t stop and consider this went entering into plans.

Consider this recent example that dominated twitter trending the past few weeks:

Rebecca Black, 13, recorded a song and music video (called “Friday”) in collaboration with a company specializing in vanity productions. Black’s parents contributed financially to the project, to ensure that they retained all rights in the song and the video, along with the original masters (as allegedly detailed in their initial contract).

While I am not privy to the specific contracts, I am confident that they were not written with success in mind. Why should they have been? This particular vanity production company had never produced a hit record or video. Their concerns likely centered on the assumption their clients – including Black and her parents – shouldn’t expect this song and video to make her a star.

As it turned out, this video did make Rebecca Black a star. With over 100 million views on YouTube in less than a month, this 13 year old and her song “Friday” was a bigger twitter buzz than the Tsunami – when the natural disaster had just happened and its aftermath was unfolding. While not all of the attention was positive, the barrage of publicity put a lot of eyes on her, including Ryan Seacrest who had Black on his radio show and later facilitated Black’s management by DB Entertainment.

In this situation – Black, her parents, and the vanity production company had contracts that were supposed to detail the rights of the parties. However, when the production company made the song available on iTunes as a download and ring tone, the Blacks threatened a lawsuit for copyright infringement claiming that only they had the rights to distribute the song. While it’s not clear if the matter will be resolved prior to a court filing, it is clear that even having a contract will not be useful if the parties don’t account for success.

How many projects are you involved in where there isn’t any paperwork attempting to detail the rights of the parties involved? If the answer is anything more than zero – then you should take some time to re-evaluate your plans.

Who owns the project? Let’s first assume that you are sole creator of the work. It’s clear that if you are using radio station facilities during time that you are being paid that your ownership of anything will seriously be questioned. But what if you are in the production room of your radio station after hours working on the tracks of a program that you want to use on your commercial website? If you are salary, is there actually an “after hours?” If you are using their equipment, don’t they have ownership interest? What if you use their phones, computers, or e-mail in the creation or production of the show? What if you are working with others? How many times has a musician/vocalist appeared on the track of another without getting compensation or credit? How many lawsuits have resulted from those appearances where no one thought about things that would arise should they be successful?

I am not suggesting that you need to have formal contracts written by an attorney for every deal that you enter into. Instead, save yourself later headaches and legal issues by anticipating problems that would arise should the project be successful and address those potential issues in advance.

NEW YORK –– Copyright law protects your intellectual property immediately upon the fixation of a creative work in a tangible form. However, in many circumstances it is desirable to additionally register your works with the United States Copyright Office; especially if you want to maintain the ability to sue for significant damages.

Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages. If you do not register your copyright within three months of initial publication, or before the date of the infringement, one would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.

To see how this plays out, assume that I have created an amazing spoken-word audio program and posted it on a website without registering the copyright. Since the audio program is an original work fixed in a tangible form (a playable file) it is protected by copyright. Therefore, if someone from another website comes and copies the file and places it on their website, my copyright has been infringed. In order for me to sue, I need to register the file with the Copyright Office.

Assuming that the infringing website doesn’t have any valid defense –– such as fair use –– then I would be able to collect my losses, plus any profits that the infringer accrued by virtue of the infringement.

What are my losses? It is easier to determine the value of the loss when the content is only available by paid subscription, rather than content that is freely available. How does one prove the value of the harm? What if the infringing website isn’t profiting from the infringement? Additionally, I would end up paying my attorney’s fees.

However, if I had registered this program within three months of its first publication, then I would be able to recover statutory damages in lieu of my virtually non-existent actual damages.

If the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement is between $750 and $30,000. However, if the court determines that the infringement was committed willfully (i.e. it was taken off your website and had any identifying owner information removed), the court may increase the award of statutory damages to a sum of not more than $150,000. Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful.

Filling out the forms online can be complicated and it is recommended that you contact a licensed attorney in your state to assist with your registration process.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.