1. STAYING SAFE IN THE CYBERJUNGLE: LEGAL ISSUES IN USING DIGITAL MEDIA DAVID OXENFORD BRIAN KANE

2. LEGAL LANDSCAPE OF THE CYBERJUNGLE Music Different rights in music Licensing Royalties Other Copyright Issues Other Issues

3. RIGHTS IN MUSIC Two rights in every recorded piece of music “Musical work” or “musical composition” – the words and music of a song “Sound recording” or “master recording” – the song as recorded by a particular band or singer Which right, and how that right is used, determines how you pay for the use of music

4. LICENSES Mechanical License- reproduction and distribution of musical works Master Use License- reproduction and distribution of master recordings Public Performance License- public performance of either the musical work or the sound recording

5. PUBLIC PERFORMANCE “Public”- any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances gathered “Perform”- to transmit or otherwise communicate a performance or display of the work to a place specified… or to the public Both radio broadcasts and broadcasts by means of digital audio transmissions

6. RIGHTS Performing Rights- publicly perform or display (see slide 8) Grand Rights- perform music as part of dramatic performances (operas, plays, ballets, concert versions of dramatic musical works) Mechanical Rights- copy and reproduce mechanically (see slide 8) Synchronization Rights- use musical works and/or sound recordings in combination with visual images

7. OBTAINING SYNCHRONIZATION RIGHTS When audio or visual producer uses recordings in a project: Must contact owners of both Sound Recording and Composition Make an inquiry with the copyright administrator Rights holder or administrator issues a quote Negotiations ($0.00-$10,000’s) Intention Length Prominence Popularity

8. ROYALTIES FOR: Musical composition public performance- ASCAP, BMI, and SESAC Sound recording public performance- SoundExchange (Digital performances only) Other rights- payments elsewhere, usually require direct interaction with copyright holders or their agents

9. CURRENT ISSUES Who owns what? “Performance tax” on over-the-air radio Streaming fees Music Composition copyright holders jealous of sound recording copyright holders Big publishers look to withdraw their catalog from ASCAP and BMI Department of Justice looking at reforms

10. CURRENT ISSUES (CONT.) Do Pre-1972 sound recordings give rise to performance royalty? Potential Copyright reform on the horizon

11. SOUNDEXCHANGE ISSUES Limits on what you can stream: No more than 2 songs from any album consecutively No more than 3 sound recordings from one album No more than 4 sound recordings fro the same artist/set/compilation Limits on archiving “Looped” or continuous programs allowed, but must be at least 3 hours long “Archived” programs allowed for 2 weeks, but must be at least 5 hours long Can’t pre-announce songs Must identify songs in text on player or website

12. ON DEMAND SERVICE (PODCASTING, ETC) Royalties paid don’t apply to traditional podcasts Usually require direct licenses Podcasters need the right to reproduce and distribute music (Mechanical License) Those are often obtained from record labels or songwriters directly

13. OTHER COPYRIGHT ISSUES Unauthorized use of content – photos are a huge issue Images and files posted online still have copyrights attached Use clearinghouses to get stock photos Can apply even to social media If material is registered with the Copyright Office, damages can be as high as $150,000

14. CEASE AND DESIST Probable response to a copyright infringement However, the victim does not have to send a letter Might receive a Demand Letter Specifying financial penalty that must be paid to avoid lawsuit Talk to your lawyer to figure out best response

15. FAIR USE Reactive defense, not proactive defense Created to allow: Criticism, parody, news reporting, research and education about copyrighted works Not created to allow promotion, reproductions, nor creative works.

16. FAIR USE (CONT.) Fact specific analysis Four Factors: Nature of Use Type of Work Amount Used Impact on Market

17. GRAY AREAS IN MUSIC Parodies Mash-ups Sampling Satire

18. OTHER ISSUES Sponsorship Identification Applies online, just like it does over the air That’s why you see “#ad” on many celebrity tweets Identification depends on the medium, but if you got something to say something, you need to identify it Privacy issues Collection of identifiable information about children is prohibited without consent of parents Lots of issues if you don’t keep personal and financial information private – don’t take credit card numbers for online purchases – use PayPal or other services

19. CYBERJUNGLE SURVIVAL GUIDE Common sense is key Find out what licenses you have and your royalty free options Don‘t just take something, because you can’t figure out how to license it Establish your own brand – but make sure that brand is not already taken Create your own imaging that reflects your organization

20. BIBLIOGRAPHY “Code of Best Practices in Fair Use for Online Video.” Center for Media & Social Impact. Available: http://cmsimpact.org/code/code-best-practices-fair-use-online-video/ http://cmsimpact.org/code/code-best-practices-fair-use-online-video/ “Copyrights Basics for Radio Stations & Webcasters.” College Broadcasters, Inc. Available: http://www.askcbi.org/webcasting-information/webcasting-and-copyrights-for-radio-stations-the- basics/ http://www.askcbi.org/webcasting-information/webcasting-and-copyrights-for-radio-stations-the- basics/ “Copyright & Fair Use.” Stanford University. Available: http://fairuse.stanford.edu/overview/faqs/copyright-basics/ http://fairuse.stanford.edu/overview/faqs/copyright-basics/ Driscoll, Robert and Oxenford, David. “Using Music in Digital Media: Business and Legal Issues.” Davis Wright Tremaine LLP. Available: http://www.dwt.com/files/Uploads/Documents/Presentations/06- 10_Basics_of_Music_Licensing_Digital_Media.pdf http://www.dwt.com/files/Uploads/Documents/Presentations/06- 10_Basics_of_Music_Licensing_Digital_Media.pdf “Music Licensing for Noncommercial Broadcasters and Webcasters.” Prometheus Radio Project. Available: http://www.prometheusradio.org/musiclicensinghttp://www.prometheusradio.org/musiclicensing

21. BIBLIOGRAPHY (CONT.) “Music Use of Copyright” American Council on Education. 2013. Available: http://www.acenet.edu/news- room/Documents/Music-use-of-copyright.pdfhttp://www.acenet.edu/news- room/Documents/Music-use-of-copyright.pdf Oxenford, David. “5 Things Broadcasters Should Know About SoundExchange Music Royalties.” Broadcast Law Blog. 2016. Available: http://www.broadcastlawblog.com/2016/03/articles/5-things-broadcasters-should-know-about- soundexchange-music-royalties/http://www.broadcastlawblog.com/2016/03/articles/5-things-broadcasters-should-know-about- soundexchange-music-royalties/ Oxenford, David. “Beware of Music in Your Podcasts – SoundExchange, ASCAP, BMI, and SESAC Don’t Give You the Rights You Need.” Broadcast Law Blog. 2015. Available: http://www.broadcastlawblog.com/2015/02/articles/beware- of-music-in-your-podcasts-soundexchange-ascap-bmi-and-sesac-dont-give-you-the-rights-you-need/http://www.broadcastlawblog.com/2015/02/articles/beware- of-music-in-your-podcasts-soundexchange-ascap-bmi-and-sesac-dont-give-you-the-rights-you-need/ Oxenford, David. “Copyright Office Reviews Section 512 Safe Harbor for Online User-Generated Content – The Differing Perceptions of Musicians and Other Copyright Holders and Online Service Providers on the Notice and Take- Down Process.” Broadcast Law Blog. 2016. Available: http://www.broadcastlawblog.com/2016/04/articles/copyright- office-reviews-section-512-safe-harbor-for-online-user-generated-content-the-differing-perceptions-of-musicians-and- other-copyright-holders-and-online-service-providers-on-the-noti/http://www.broadcastlawblog.com/2016/04/articles/copyright- office-reviews-section-512-safe-harbor-for-online-user-generated-content-the-differing-perceptions-of-musicians-and- other-copyright-holders-and-online-service-providers-on-the-noti/

22. BIBLIOGRAPHY (CONT.) Oxenford, David. “Highlighting the Scope of Legal Issues that Can Arise in a Media Company’s Digital Operations.” Broadcast Law Blog. 2015. Available: http://www.broadcastlawblog.com/2015/11/articles/highlighting-the-scope-of-legal-issues- that-can-arise-in-a-media-companys-digital-operations/ http://www.broadcastlawblog.com/2015/11/articles/highlighting-the-scope-of-legal-issues- that-can-arise-in-a-media-companys-digital-operations/ Oxenford, David and Driscoll, Robert. “The Basics of Music Licensing in Digital Media: 2011 Update.” Davis Wright Tremaine LLP. 2011. Available: http://www.dwt.com/advisories/The_Basics_of_Music_Licensing_in_Digital_Media_2011_Upd ate_02_22_2011/ http://www.dwt.com/advisories/The_Basics_of_Music_Licensing_in_Digital_Media_2011_Upd ate_02_22_2011/ Oxenford, David. “Legal Snapshot – Issues for Audio Services.” Wilkinson, Barker, Knauer LLP. 2016. Available: http://www.wbklaw.com/uploads/file/Articles- %20News/2016%20articles%20publications/RAIN%20Legal%20Issues%20for%20Audio%2 0Services%20-c1.pdfhttp://www.wbklaw.com/uploads/file/Articles- %20News/2016%20articles%20publications/RAIN%20Legal%20Issues%20for%20Audio%2 0Services%20-c1.pdf

23. BIBLIOGRAPHY (CONT.) Stim, Rich. “Copyright Infringement: How are Damages Determined?” NOLO. Available: http://www.nolo.com/legal-encyclopedia/copyright-infringement-how- damages-determined.htmlhttp://www.nolo.com/legal-encyclopedia/copyright-infringement-how- damages-determined.html Templeton, Brad. “10 Big Myths about copyright explained.” Available: http://www.templetons.com/brad/copymyths.html http://www.templetons.com/brad/copymyths.html Tepper, Cary. “Using Copyrighted Music in Commercials – The Facts.” Tepper Law Firm, LLC. Print. Welsbroth, Spencer. “Digital Music Licensing Guide.” Weisbroth Law. Print.

24. STAYING SAFE IN THE CYBERJUNGLE: LEGAL ISSUES IN USING DIGITAL MEDIA DAVID OXENFORD BRIAN KANE