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Copyright, Labor, and Other Program Rights

A program producer must assure that he/she has the right to use each element in the program produced for the purposes for which the program will be used. These purposes may include one-time or multiple-time broadcast, and non-broadcast uses (including cassettes, web casts, web archives, and other media). In general, the program producer will want to assure that he/she has obtained rights to use any material owned or copyrighted by another, any material to which another has contributed his/her labor, and any material over which another has control by contract.

Use of Copyrighted Material

The Copyright Act of 1976 (17 U.S.C. sections 101 and following) provides a unified national system for statutory protection of original works created by authors. Copyright protection under the statute is extended to original works of authorship such as literary works (computer programs, ceratin types of data bases); musical works (including accompanying words); dramatic works (including accompanying music); pictorial, graphic and sculptural works; motion pictures and other audiovisual works (including the sound element of those works); sound recordings, compilations of sound recordings; and certain digital transmissions of these works. However, copyright protection does not extend to ideas or facts (one can copyright the expression of ideas or facts only); titles and short phrases (though names, slogans, and logos are often protected by trademark laws); public domain works (works which cannot be copyrighted or for which copyright protection has expired); and most United States government works (works prepared by government employees in the course of their official duties). Copyright protection grants authors exclusive rights to their works, and the right to control the uses of those works by others, except where those exclusive rights are limited by the statute or where the statute grants to others a compulsory license in the work.

The limits in the statute, and the compulsory licenses, mean that others, including program producers in limited circumstances, may use the work without prior permission from the copyright holder (usually the creator or a license-holding society); however, where compulsory licenses are involved, the copyright user may have to pay the copyright holder for such uses. It is safest to assume that the program producer must obtain approval, preferably written, in advance (often for a fee) from the copyright holder before using the copyrighted work of another, or check with an attorney.

1. Music Licenses for Over-the-Air Broadcast by Public Broadcasting Entities. The Copyright Act provides that certain groups of copyrighted material can be used by specific entities for certain purposes, without obtaining prior permission from the copyright holder. That is, the statute grants a "compulsory license" in the work to the user. To assure that these provisions are constitutional, the Act provides for payment to the copyright holder by one means or another. Section 118 of the Copyright Act grants a compulsory license for the use of published nondramatic musical compositions in the production and transmission of programs by public broadcasting. Fees for use of such musical works are paid through licensing agreements between public broadcasting entities and the major licensing societies (ASCAP, BMI, SESAC, and Harry Fox Agency), which are currently in effect through December 31, 2007. These agreements grant covered station licensees and producers working on their behalf the right to use the nondramatic music in the repertoires of those societies in public broadcasting. In addition, the agreement with Harry Fox Agency permits the making of tapes for use as part of the broadcast (recording rights). A program producer should check the exact terms of the license agreements and of the established rates before relying on them. These described rights cover noncommercial public broadcasting use of programming by CPB-eligible and CPB-qualified public radio stations. Program producers using the public radio satellite interconnection system for commercial programming or commercial use of noncommercial programming are not covered by these negotiated agreements.
2. Other Music Rights. Section 114 of the Copyright Act contains an exemption permitting the inclusion of sound recordings in public broadcasting programs transmitted by over-the-air broadcast, except that copies of the programs may not be commercially distributed to the general public. Therefore, subject to a series of specified rules, copies of sound recordings made for public radio broadcast use do not require payment of a royalty. Digital transmissions of music and sound recordings over the Internet or by other new technological means are outside the scope of this Users Guide. Similarly, section 112 permits public broadcasters already licensed or otherwise authorized to copy copyrighted sound recordings (records and cassettes) to make one copy of the program which includes the copyrighted work. This so-called ephemeral recording provision is designed to permit broadcasters to schedule broadcast of programs at convenient times. This copy is generally discarded after broadcast or kept for archival use.
3. Other Materials. The compulsory license does not cover use of dramatic musical works (i.e., ballets, operas and musicals, musical works which tell a story or are used in a way so as to tell a story), or any use of non-musical works (a play, periodical, literature, poetry, etc.). The program producer must negotiate a license for use of such materials with the copyright holder. In addition, anyone who wishes to record or "fix" sounds or sounds and images of a live musical performance, including certain studio recordings, must secure the consent of all the performers (17 U.S.C. section 1101). For your protection the consent should be written and reviewed with counsel.
4. Special Uses of Copyright Material. Certain uses of copyrighted material are permitted under the Copyright Act, even though they may otherwise seem to be an infringement.
   1. Fair Use. "Fair use" of limited amounts of material from a published copyrighted work is permitted (section 107 of the Act). There are no bright line rules for determining whether use of material is a "fair use" for which no license need be obtained, or for determining payment for such use. The statute provides that "fair use" is determined by weighing four factors: the purpose of the use, including whether the use is commercial or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for or value of the copyrighted work. The significance of each factor to a finding of fair use will vary with each case. In general, limited use of small clips or excerpts of a work in a movie review or a news story will be regarded as a fair use; however, a use, even of small portions that is not a "transformative" use, that takes the essence of the work, or that has an effect on the market for the original work, is less likely to be deemed a fair use. The scope of fair use of an unpublished work is generally narrower than for published works.
   2. Other Exemptions. Other special uses include the instructional transmission exemption which permits not-for-profit educational institutions and governmental bodies to include the performances and displays of nondramatic literary and musical works in instructional programs under specified conditions (section 110(2) of the Act); and the performance under specified conditions of nondramatic literary works without license by public broadcasters and governmental bodies, if those transmissions are specifically designed for and primarily directed to the blind or deaf (section 110(8) of the Act).

Copyrighting the Program

Copyright law also provides a means to protect programming which the program supplier produces. Most programs will meet the original works requirements; they can be copyrighted by being "fixed" in a tangible medium—either written, before broadcast, or recorded simultaneously with public dissemination. The rights that are part of the "copyright" attach with fixation.

In March 1989, the United States became a signatory to the Berne Convention for the Protection of Literary and Artistic Works ("Berne"). Congress passed amendments to the U.S. Copyright Act to enable the U.S. to sign the Convention. As a member of Berne, the U.S. and other member nations must extend copyright protection to foreign copyright owners. Although most of the provisions of the Copyright Act of 1976 were unaffected by the Berne membership, there are some changes which are important to note.

One of the major changes under the revised Copyright Act is the copyright notice requirement. Under the 1976 law, notice of copyright on publicly distributed works was mandatory. Now, mandatory notice has been abolished for works published for the first time on or after March 1, 1989. However, all works published before that date must continue to have a copyright notice affixed each time they are reissued or republished. In addition, the use of notice on works first published on or after March 1, 1989, still has significant benefits and is recommended. For example, use of a copyright notice reduces the likelihood that a person could successfully raise an innocent infringer defense and reduce the damages awarded in an infringement action. Any inadvertent omission of notice should be remedied on subsequent copies of a work. However, registration of a work with the Library of Congress is a prerequisite to recovering certain kinds of statutory and attorney's fees damages. A notice of copyright sound recordings should include a symbol, the year of first publication, and the name of the copyright owner. It is suggested you separately indicate copyright in underlying material by including the © symbol. Copyright practice permits and © together. For further information about registering works, contact the Library of Congress, or visit the website at www.loc.gov/copyright.

Labor Rights

Material used by program suppliers often includes actors, singers, and others who "work" in the program. Often, such workers are covered by agreements with local or national unions, such as the American Federation of Radio and Television Artists (AFTRA), the American Federation of Musicians (AFM), and the American Guild of Musical Artists (AGMA). Program suppliers should assure that any talent they use in their programs is being used in conformity with any applicable union agreements.