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Richard Herd
Broadcast, Cable, Copyright.
on May 1, 2014 at 4:46:37 pm

Who owns the copyright to a television show? The network? The writer? The production?

Does the broadcaster have the right under public screening definitions of 17 USC 104 http://www.law.cornell.edu/uscode/text/17/106 to aggregate content across many channels and edit them into sizzle reels to drive ad sales?

Thanks!


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Shane Ross
Re: Broadcast, Cable, Copyright.
on May 1, 2014 at 6:25:39 pm

The owner is the network the show was made for. If LAW & ORDER is re-run, NBC gets the money...and pays out residuals to the actors, director, show runners (producers), and writers. If you license footage from a show...using LAW & ORDER as the example again...then you pay NBC, and credit them in the credits. "Footage of LAW & ORDER courtesy NBC FILMS" or something like that.

[Richard Herd] "Does the broadcaster have the right under public screening definitions of 17 USC 104 http://www.law.cornell.edu/uscode/text/17/106 to aggregate content across many channels and edit them into sizzle reels to drive ad sales?"

I believe that networks that license and air those shows can use footage from them to cut promos. For example, CRIMINAL MINDS is a CBS show...it's heavily re-run on the ION network. They can use episodes to cut promos for the show. I'm not a lawyer, so you should hire one to answer this...but because they get promo rights, and the broadcasters are using the material in a promotional way to tell advertisers, "Our network airs these great, highly rated shows," it should fall under the "for promo use" catagory.

But again...ask a lawyer.

Shane
Little Frog Post
Read my blog, Little Frog in High Def


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Richard Herd
Re: Broadcast, Cable, Copyright.
on May 1, 2014 at 8:58:39 pm

[Shane Ross] "ask a lawyer"

Thanks Shane! The lawyer is very risk averse. In your opinion and your experience what about a case where there are many shows cut together with new audio (VO pitching the offers and stock music)? Running time of 2 minutes.

And one more...what about cutting the official promo from NBC (for example); instead of using the entire 2 minutes, it's edited into a new timeline?

Thanks again!


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Shane Ross
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 6:12:50 am

[Richard Herd] "The lawyer is very risk averse"

Hiring a lawyer is risky? No...NOT hiring one in cases like this is. The company i'm at employs clearance people, and lawyers, to ensure we don't cross any lines. If you do...god help you. You could be sued for a lot more than a lawyer cost.

[Richard Herd] "In your opinion and your experience what about a case where there are many shows cut together with new audio (VO pitching the offers and stock music)? Running time of 2 minutes."

Pitching how? How and where will it be shown?

[Richard Herd] "And one more...what about cutting the official promo from NBC (for example); instead of using the entire 2 minutes, it's edited into a new timeline?"

It doesn't matter if it's from the promo or the full shows...the material is owned by the network the show airs on. Same restrictions apply.

What EXACTLY are your intentions? And are the shows already licensed by the station you are doing this for?

Shane
Little Frog Post
Read my blog, Little Frog in High Def


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Todd Terry
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 2:36:23 pm
Last Edited By Todd Terry on May 2, 2014 at 2:39:46 pm

I don't know if this pertains at all to Richard's original question, but a little clarification...

It ALL DEPENDS ON THE DEAL, but television programs are generally owned by the producers of the show, not primarily by the networks on which they appear. SOMETIMES a network will own a show outright, but that's highly unusual. Usually the producer owns the show and the network might own a piece of it, or the producer owns the show outright.

Quick example or two...

For years David Letterman's "Late Show" was exclusively owned by Worldwide Pants, Letterman's production company. Beginning a few years ago (I think it was Letterman's last contract negotiation), Letterman gave up a portion of the ownership to CBS, and now The Late Show is co-owned by Worldwide Pants and CBS.

Law & Order (and all of it's various 142 different franchises) is owned by Dick Wolf Films... I think almost exclusively. NBC might have a piece of it, but I'm not sure... don't think so.

30 Rock was a tri-ownership. It was primarily owned by Little Stranger (Tiny Fey's production company) and Broadway Video (Lorne Michaels' company) and was partially (a very minor part) owned by NBC Universal.

Who can we thank for this ownership arrangement? Believe it or not, the very very VERY brilliant Desi Arnaz. Didn't know Desi was such a brilliant producer? Well he probably made the best deal in the history of television...

When "I Love Lucy" was kicking off, CBS wanted the show to originate from New York, as a multi-camera show on video. At that time that was the way to get the cleanest signal to the affiliates. But Desi and Lucy wanted to live in California and produce the show there. CBS said no-go to that, because the shows would have to be produced and delivered on kinescope masters, which looked terrible. Desi suggested they produce it still as a three- or four-camera show, but with multiple simultaneous film cameras running. CBS balked at that, saying it would be too wildly expensive.

Desi said if they would shoot it in California multi-cam with film cameras, he would personally pay for the difference in the production costs... if....

(here comes the brilliant part)

...if he retained rights and full ownership of the show after each episode initially aired. CBS laughed at that and said "sure" (after all a show was worthless after it aired, right? What would Desi do with it?).

And the rest is history.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Shane Ross
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 3:32:01 pm

Ok. Glad you chimed in, it appears that I'm wrong wrong wrong. Wonder of things are different for History and Discovery shows? Or if I'm just too far removed to really know. I thought I knew.

Shane
Little Frog Post
Read my blog, Little Frog in High Def


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Todd Terry
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 3:41:37 pm

Well I think it might be a bit different on some of those types of shows because in some cases it is the broadcast or cable network that is actually serving as producer of the show (i.e., actually ponying up the cash and paying for the production, rather than paying for the rights to air a show once or a set number of times)...or they are just buying the ownership rights as well.

In those cases the network may indeed own the show. But it's because they technically produced it, not because of who aired it.

In a twist on that... I can't for the life of me remember which show it was, but there was a primetime network show just a few years ago. In a slight rarity it was actually produced and fully owned by CBS (a little unusual that a network fully own a show). BUT... it didn't air on CBS, I believe it aired on ABC.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Tim Wilson
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 4:58:36 pm

Always nice to see Desi Arnaz mentioned for the pioneer he was, Todd. Desi invented multicam editing to cut I Love Lucy, with a custom-designed and built 4-headed flatbed called the Moviola Monster. We did a story about multicam editing that included a lengthy sidebar on this, here.

Apologies for the length of this, but it's one of the most important things we talk about in this forum.


Networks producing shows for each other is quite common. One of the most visible recent examples was House MD on Fox, which included a very gaudy tag animation for NBC at the end, later NBC Universal, which is where it was produced.

So that's 2 networks.

But, as noted with Worldwide Pants, there are separate production companies that factor in. Bad Robot (JJ Abrams company) produced Lost FOR ABC, and Fringe FOR Fox...but that still makes at least 2 entities.

But using our example of House MD, the production entities included Shore Z and Bad Hat Harry, which also produces the X-Men movies among other things. (Bad Hat Harry is Bryan Singer's company.)

So for House, in fact, there are FOUR major rights holders, before we get to syndication.

Once it went into syndication, it came under the purview of both 20th Television -- NOT the same as Fox, but a customer that just happens to live under the same corporate roof -- and NBCUniversal Television Distribution -- ditto, a separate entity from the producers. Large piles of money pass between these entities, and they have separate sets of rights.

So that's six.

And yes, the network that has syndicated it. (USA? I forget.) Their rights will vary -- even THEY can't do just anything with this footage of course -- but they'll have a say if your use of it comes from their airing.

That's seven.

It has been true for a while, and certainly increasingly the case, but key actors retain the rights to their likenesses being used -- which extends to trying to get away with using lookalikes. Nonono.

That's eight right holders, or more, depending on how many actors have such contracts...but I bet Hugh Laurie is one of them.

The music rights are held by someone else.

That's nine.

I can keep going, but those are the ABSOLUTE MINIMUM of people who have a say in your use of broadcast material.

Lawyer up, my friends.

BTW, I've noted some of the complexities of this before in the relatively simple case of Elvis Presley Enterprises. EPE manages the rights to Elvis, but his music is held by Sony, even when used in films which are held by MGM. EPE wants to use a clip of Elvis singing in a movie? The other rights holders have to be engaged.

Needless to say, they have a longstanding, collegial working relationship that benefits each of them, but these things don't "just happen" because "we've done it before" and "it's good for all of us." There are rules, and if the clip is sold on an Elvis DVD or something, there is money to be split in specific ways.


AND THIS IS BEFORE WE GET TO TRADEMARKS.

In fact, copyright is pretty easy, as long as you engage EVERYONE...which is always more people than you think. Trademark is VERY hard, because EVERY use of a trademark affects the ENTIRE value of the trademark.

BTW, you intuit this yourself when your esteem of a song or actor or whatever drops because it's licensed to something that feels "unworthy." Now EVERYTHING they do is tainted with that association.

Which is why, mess up a copyright, and you owe the money for THAT USE, plus derivatives, court costs, etc. If you don't think you can afford YOUR lawyer, think about how much fun it will be to pay THEIR lawyers.

But mess up a trademark, and you can be sued for THE ENTIRE VALUE OF THAT TRADEMARK. Certainly millions. Possibly billions. Plus, uhm, court costs.

Not that they think you'll be able to pay this kind of money, but because they are REQUIRED BY LAW, as holders of the trademark, to defend against EVERY misuse, or they lose the rights to defend ANY misuse.

Which is why there are so many trademark lawsuits that look ridiculous. Maybe that one IS ridiculous, but it's also the basis for going after the ones that aren't. You may not pay billions in damages, but the settlement will be painful. Count on it.

The only thing I'm going to say about cable companies: there's a reason that Comcast was able to buy the NBC network, USA, Telemundo, Syfy, MSNBC, MCA Records, Universal Studios (both movies and TV), a couple of major theme parks, and much more -- it's bigger than ALL OF THOSE PUT TOGETHER.

You can search through other posts in this forum, or make a quick stop by Amazon to see I'm not making this up. I'm simplifying it. The rights of rights holders are extending outward, and getting stronger. Courts are extending those rights more quickly than the law itself is moving, which is why these guys are in such a hurry to get to court. They can argue PRECEDENT, even when they can't argue LAW.


My greatest hope is that this discourages you from doing anything with any of these people. LOL

My second greatest hope is that you not even DREAM of it without consulting a lawyer.

Apologies again for the length of this, and the extent to which it goes to places that the original questions don't necessarily require.

But no kidding. Get a lawyer.


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Todd Terry
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 5:14:23 pm

[Tim Wilson] "Always nice to see Desi Arnaz mentioned for the pioneer he was..."

Indeed he was.

Suggesting multi-camera film shows was wildly innovative for the time... I'm sure some network honchos probably thought Desi was nuts. He had a number of other production innovations too that were considered wild-n-crazy cutting edge at the time, which we take for granted today.

Those giant Mitchells on their big dollys made for some pretty crowded stages though... I count at least ten crew members crammed into this little set...





Ah, those were the days.....

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Richard Herd
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 5:38:28 pm

I'm reading the Aereo, Inc case currently. Here's the Hollywood Reporter story http://www.hollywoodreporter.com/thr-esq/tv-broadcasters-ask-supreme-court-... and the case is linked at the bottom of that report.

Very interesting territory.

I'm making a pretty good living cutting commercials for Charter (the local cable provider). It's cool and good work because a lot of the mom and pop shops just need some help driving business; they've got everything invested in the shop. I help sway commerce their direction. It's very cool. I'm a part of a bigger sales team who pitches and closes (always closing) to the locals. The sales team needs sizzle reels of broadcast content that matches the potential demographic of the particular business. This includes every famous show you can imagine, plus every sporting event. In the past, previous vidiots cut the spots no questions asked, but I stopped the practice because it seems like copyright infringement. What say ye?


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Jason Jenkins
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 8:41:15 pm

[Richard Herd] "I'm making a pretty good living cutting commercials for Charter (the local cable provider)"

I didn't think that was even possible! Tell me more..

Jason Jenkins
Flowmotion Media
Video production... with style!

Check out my Mormon.org profile.


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Richard Herd
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 5:23:18 pm

[Shane Ross] "it appears that I'm wrong"

Yeah, it's tough because the copyright holder licenses the public performance to the broadcaster under 17 USC 104. I cannot find whether and to what extent "promotions" are a part of that license agreement.

Surely it is, but I need some real proof...right? Wouldn't you want actual proof? (Serious question.)


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walter biscardi
Re: Broadcast, Cable, Copyright.
on May 4, 2014 at 10:03:48 pm

[Todd Terry] "It ALL DEPENDS ON THE DEAL, but television programs are generally owned by the producers of the show, not primarily by the networks on which they appear. SOMETIMES a network will own a show outright, but that's highly unusual. Usually the producer owns the show and the network might own a piece of it, or the producer owns the show outright."

Actually if you're talking Cable Networks, it's completely the opposite. The networks own the shows, not the producers. Scripps which owns Food Network, Travel Channel, HGTV and others owns pretty much all of the programming outright. "Good Eats" which I worked on, is owned by Scripps, not Alton Brown who created and produced the series.

This is true of just about every cable network I've ever pitched to. If they pick up the show, they pay 100% production costs and walk away with ownership of the show free and clear.

If you're talking traditional broadcast network, then yes, usually the networks are licensing the shows and the ownership remains with the Producers.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

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Todd Terry
Re: Broadcast, Cable, Copyright.
on May 5, 2014 at 2:40:07 am

[walter biscardi] "Actually if you're talking Cable Networks, it's completely the opposite."

Originally I was speaking of broadcast networks, specifically. Being an old broadcast guy, I'm still of the opinion that "cable network" is an oxymoron... but actually I think we're saying exactly the same thing, in different ways...

[walter biscardi] "...they pay 100% production costs and walk away with ownership..."

Exactly... the cable network is paying for the production costs... ergo in that scenario the cable network is the producer. They do own the show, but in that case they own the show not because of simply where it aired, but because they produced it.

Or I can imagine a situation where a cable network might have the opportunity to take an already-produced show and simply buy it. They didn't produce it, but do have ownership rights because they bought them.

As I said, it depends on the deal.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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walter biscardi
Re: Broadcast, Cable, Copyright.
on May 5, 2014 at 12:28:05 pm

[Todd Terry] "Exactly... the cable network is paying for the production costs... ergo in that scenario the cable network is the producer. They do own the show, but in that case they own the show not because of simply where it aired, but because they produced it."

No, they don't actually "produce" the show. The shows are produced by third party production companies. In the case of "Good Eats" you'll see that the producer of the series was B2 Productions. Alton's own company.

But everyone involved in the show has to sign over all rights of all their work to the Food Network. Food only "produces" the series in the sense that they only pay for it. Very few of the networks actually produced their own programming.

It's rare a cable network series is produced that is not wholly owned by the cable net. I think that was the model when they first really started out and it has stuck through the years. That's the major reason I'm moving away from cable and broadcast altogether with my new venture and going directly multi-platform delivery.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

Craft and Career Advice & Training from real Working Creative Professionals

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Todd Terry
Re: Broadcast, Cable, Copyright.
on May 5, 2014 at 3:16:19 pm
Last Edited By Todd Terry on May 5, 2014 at 3:17:03 pm

[walter biscardi] "No, they don't actually "produce" the show."

Tomato tomahto. I'm using the old Hollywood producer designation... i.e., the fat cat who pays for the shootin' match... as Walter said "they pay 100% production costs." In my book (and most people in the industry), that's the big all-encompassing PRODUCER (the one in all caps), whether or not they have anything to do with the hands-on gettin'-it-done, have a logo on an end slate, or have ever set foot on a location or set.

I don't really know any of these shows or people, but I bet if you ask The All You Can Eat network, "So do you guys produce Sparky McMuffin's 'Great American Waffle Search'?" they'd say yes...even though their producers' duties end with writing a check.

It's a more-than-moot point anyway, sounds like they make it very clear who owns what... which is good.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Richard Herd
Re: Broadcast, Cable, Copyright.
on May 2, 2014 at 5:13:50 pm

[Shane Ross] "What EXACTLY are your intentions? And are the shows already licensed by the station you are doing this for?"

Intentions...to cut a promo video for the ad sales department. They pitch the sales buy to clients.

Already licensed? Yes. Definitely.

The lawyers are risk averse. They say don't do anything without clearance, and it takes them several weeks to get back to me, and in the meantime, the sales department is very adamant.

I'm well aware that a copyright infringement means I'm in trouble, not just financially, but professional reputation also.


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Jeff Markgraf
Re: Broadcast, Cable, Copyright.
on May 4, 2014 at 8:52:16 pm

OB "...not a lawyer, blah blah blah..." Also, long post.

Richard, this whole area is a little squishy, partly because it depends on the audience.

I've cut more network sales and sizzle and upfront reels than I care to think about. In the case of up fronts, the audience is ad agencies and their buyers. Lots of money at stake, etc. We never worry about, say, music rights clearance for these presentations. It can be argued that these are private use, not public exhibitions, and no money is charged or directly made from the presentations. Whereas the networks are scrupulous about getting music clearance from all parties for broadcast use (which is why we use mostly library music instead of pop music for 99% of promos), all bets are off for upfront presentations. Same goes for sales and/or sizzle reels.

What you're describing falls into the same non-public-exhibition-for-profit category. An on-air (or "on-cable") sizzle is promotional, and there's no problem showing the clips. If Charter licenses the shows for air, those shows can be used for promotion. If the clips are used to promote something else (like an on-demand viewer app, for instance), some kind of tune-in info ("NCIS, Sundays at 9) makes it safe for use. Again, using the clips in a "private" use such as sales meetings or pitching clients is standard use in broadcast and cable.

A nervous nelly lawyer will ALWAYS say no as a reflex. Usually it's because he doesn't really know the answer, so "no" is safe. Realistically, it would be impossible to get clearances from even a fraction of the rights holders in this situation. Sales reels may fall into a a grey area, since you're using the copyrighted material not just to promote, but also ultimately to make money. This future money-making is probably what freaks out the lawyer. But in reality, it's a non-issue.

tl;dr: Using clips for promotion is fair game. Sales and sizzle reels shown in private meetings to generate future sales are fair game. Music or other copyrighted used in a promo or sizzle must be cleared if used "on-air." Licensing isn't needed for private sales meetings and the like. Decades of network practice says so.


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Richard Herd
Re: Broadcast, Cable, Copyright.
on May 5, 2014 at 6:07:31 pm

Thanks!

What about venues like conventions, where Charter sets up a booth, and the sizzle is running on the table: private or public?

Thanks again!


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Jeff Markgraf
Re: Broadcast, Cable, Copyright.
on May 5, 2014 at 8:01:37 pm

Well, I suppose that's kind of squishy. Technically, it's public. But it's not public exhibition for profit in any practical sense, so Mr. Attorney would have a hard time making a case that it's a violation. I mean, a certain amount of common sense has to apply. Since (I presume) Charter isn't charging a fee to stand at the booth and it's not part of a larger trade-show-sponsored exhibit charging a fee, it pretty well falls under promo use.

Again, not a lawyer, etc. But studios and other rights-holders have MUCH bigger fish to fry with rampant piracy, Aerio, HULU, etc., and myriad syndication deals. Local/regional cable promotion and sales is not likely to be on anyone's radar.


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Richard Herd
Re: Broadcast, Cable, Copyright.
on May 5, 2014 at 8:43:11 pm

[Jeff Markgraf] "MUCH bigger fish to fry "

yeah, that's the thing. Everything seems great. Until the moment it isn't.

Thanks for your information. It's been very helpful and reasonable. For me, it seems, I will bug all clips with logo and schedule. It might take a bit of work, but seems right.


Thanks again!


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