This weeks Ask The Attorney question comes from reader Joy at All Star Radio Network and its a great one about streaming. Joy asks: "If part of a broadcast program containing a commercial is later available to hear on-line with the commercial still in it would the advertiser have grounds for legal action (even though you'd think they'd LIKE it!)?"
Joy, the inability of radio stations to stream the same full program content as is broadcast over the air is one of the large issues out there right now with streaming.
The issue of running a full stream of programming including network supplied commercials goes into the depths of copyright, licensing, permissions and labor relations. For many advertising spots, the AFTRA talent contract likely restricts the contracting party which is usually the advertiser or agency to just over-the-air use. The AFTRA talent does not give permission or consent for his or her voice to be used in a broadcast stream, or more to the point, the advertising agency or advertiser is not paying the AFTRA talent union fees for streaming.
So, recall the game of "hot-potato" or at least the concept. Because the advertiser or agency does not pay for the right to stream the talent's voice, the contract between the advertiser or agency and the radio station specifically states "do not stream". Thus, since an explicit part of the contract prohibits it, liability is transferred to the radio station if the commercial spot is wrongfully streamed. Presumably, if the agency is sued by the talent for streaming, the agency can turn around and sue the station for wrongfully streaming. The radio station may also be directly liable to the talent for a wrongful use of copyrighted material in violation of the consents given, and possibly liable for a wrongful use of a person's voice in a commercial endeavor without consent.
At this point, I am not aware of any radio station being sued for wrongfully streaming an advertising spot for which the radio station did not have permission or consent to stream. But, the liability is there, and with the potential availability of statutory damages for copyright violations, the liability could be huge.
So Joy, back to you for a moment. I would be curious to see what kinds of perfectly reasonable restrictions you have in your agreements with radio stations for the carriage of your program and more to the point, if a radio station that did not have a contract with you ran your program, should I think you would "LIKE it"? A station running your program without a contract with you would be, after all, more exposure and more listeners to your program? The answer is, of course, that talent, performers, musicians and other creators of content like to monetize their creative works as much as possible. And thus it is with the AFTRA announcer who, if his or her work is to be streamed, wants to be paid for it.
The eventual answer is either that union contracts will be re-written and accepted to include streaming, or as with many copyright and licensing issues, the government will step in to force a resolution through legislation. For right now, however, the free market prevails, and radio stations cannot stream the content of others that is not licensed or consented to be streamed.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or email@example.com
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