Do You Ever Simulcast TV News? Do You Know The Rules?
In the wake of Hurricane Irene and as we sit in the midst of the current hurricane season, there is always a possibility a station may go into complete news mode to deal with a weather emergency. That also means, at times, sharing a feed with your local television partner. If that happens, for any reason, do you know the rules when the TV airs commercials if they happen to play on your station? One of our readers threw that question at attorney John Garziglia.
Question: What if a commercial produced by a national talent meant for TV only ends up airing on the radio station?
John Garziglia says: As a basic legal matter, any programming content run on a radio station must be cleared for such use, either as a matter of a broad statutory license such as BMI, ASCAP and SESAC songwriter licenses, as a matter of statutory exemption from copyright law such as most musical recordings (think performance fees), because the radio station has contracted directly or has permission to run the content, because the radio station produces such content itself and owns it, because the broadcast of the content is a fair use under copyright laws, or because the content is in the public domain. The running of a commercial with national talent through a re-broadcast of a TV station, even in an emergency situation, does not likely fall under any of these categories.
To observe that copyright law is a morass is an understatement in today?s world. Just because compliance with the law and respecting other?s rights in intellectual property may be difficult, however, does not relieve a radio station from liability for infringement for wrongful use of content. In the case of a commercial run on a TV station, it is unlikely that the TV station itself holds the various rights to give permission for a radio station to run such a commercial. Thus, as a strictly legal matter, the radio station is likely liable for infringement or wrongful use in such an instance.
But, it is worth noting that copyright law is not like a photo speed enforcement camera which tags everyone who is a violator with a fine or penalty. First of all, copyright and various intellectual property rights are not generally enforced by criminal laws. Rather, their violations are a matter between the parties involved. The award of damages or injunctive relief (i.e. a stay or other court-ordered action) will involve a legal proceeding of some sort before a judge or other tribunal.
Given that a legal proceeding likely must take place, the single inadvertent running of a TV commercial by a radio station in a time of public emergency is unlikely to be viewed by a judge or other decision-maker as a productive use of legal processes. The rights holder is likely have a tough time seeking recompense.
That does not mean, however, that in a high profile situation someone might not try to enforce his or her intellectual property rights. Which brings us to the ultimate observation which is that while mistakes and worse may happen in the operations of a radio station, the defense of such mistakes is what insurance is for.
In a situation where a radio station is chased after for an intellectual property claim, the resulting litigation itself can often consume thousands or hundreds of thousands of dollars in legal defense fees. Having an insurance company standing behind the radio station providing a defense, should such litigation arise, is the prudent business answer to the Radio Ink question. Thus, this is really a question for the radio station?s insurance agent, which is whether the radio station is covered by errors and omissions insurance, or another form of business liability insurance, should it mistakenly run content the station is not authorized to broadcast.
John Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at 202-857-4455 or jgarziglia@wcsrcom Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.
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