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  • Illegal Promotions All Around Me. A Real-Life Example of How Merchants Get Contests & Sweepstakes Wrong – and How to Fix It.

    Promotions and give-aways can be a low-cost, easy, and engaging method of garnering positive attention for a business. However, some business owners do not realize that contests and sweepstakes must comply with an assortment of laws and regulations. That failure sometimes leads to well-intentioned businesses inadvertently engaging in illegal activity. Here is one real-life example that I recently encountered.

    The Promotion

    While the structure of this promotion remains intact, I have altered names and details.

    Dr. Smith offers you an extra incentive to maintain your health – A FREE WEEKEND GET-AWAY.

    Dr. Smith’s office will draw the name of one patient during {Health Awareness Day}, on June XX, 2017. You may enter the drawing in one of two ways:

    1. Schedule and complete a wellness exam by June XX, 2017

    2. Register to use our telemedicine service AND complete your first televisit by June XX, 2017

    Why Is Dr. Smith’s Weekend-Getaway Promotion Likely Illegal?

    Dr. Smith likely wants to offer a valid sweepstakes. Instead, he is offering what is likely a lottery. With few exceptions, only the federal and state governments can legally offer a lottery. Hence, Dr. Smith’s lottery is an illegal lottery. Inadvertently offering an illegal lottery or gambling game is mistake number one on my list of 10 Common Legal Mistakes for Contests and Sweepstakes Promotions.

    A promotion in which participants pay consideration (e.g., money or other item of value) for the chance to win a prize is a lottery. For Dr. Smith’s promotion, payment for the wellness exam or televisit qualifies as the consideration, the free weekend get-away is the prize, and selection of the winner via random drawing injects chance.

    How to Transform this Malformed Sweepstakes into a Legal Promotion

    Successfully removing just one of the three elements – prize, consideration, or chance – lifts the illegal lottery stigma. Which one should be removed?

    Remove the Prize? Possible but often not practical since removing the prize also removes much of the incentive for people to participate.

    Remove Chance? Removing the element of chance to award the prize to one of many entrants means structuring the promotion as a skill-based contest. That is definitely possible and the method used by many promotion sponsors to avoid the illegal lottery issue. A skill-based contest requires entrants to demonstrate a skill (e.g., dance, photography, essay writing, etc.) and for a winner to be selected based on objective judging criteria. For this short discussion, assume that Dr. Smith wants to keep his office promotion very simple and avoid a structure requiring an objective evaluation of entrants’ skill.

    Remove Consideration? Removing the element of consideration makes this promotion a valid sweepstakes – and that seems to be the structure Dr. Smith actually desires.

    Removing Consideration as Method of Changing Illegal Lottery into a Legal Sweepstakes

    There are a few approaches to removing the element of consideration from a promotion:

    Offer a Free Alternative Method of Entry. Providing a free alternative method of entry can remove the element of consideration for a promotion where entry comes automatically with a purchase. In Dr. Smith’s promotion, entry for the weekend get-away might include the third option of entry by mail or by the internet without the requirement of scheduling a wellness exam or televisit.

    Restrict Promotion to Existing Patients Who Have Already Paid for Dr. Smith’s Medical Services. For example, suppose Dr. Smith operates his practice as a concierge service where patients pay a fixed annual fee that covers certain services during the year including a wellness exam and televisits. The wellness exam and televisits are available to existing patients at no additional charge. Hence, while the wellness exam and televisits are not “free”, they do not serve as incentives for participation in the promotion. The success of this approach depends on the applicable state law. States have varying opinions on whether a promotion open only to existing customers, paying members, or event attendees qualifies as a promotion charging consideration.

    Offer the Wellness Exam and Televisits Free to Anyone. Although perhaps unlikely, let’s imagine that there are circumstances in which Dr. Smith chooses to offer wellness exams and televisits to anyone free of charge for a period of time. If the free services are true “no-strings-attached” benefits to the recipients, this structure likely removes consideration. However, even “free” might be problematic if the offered “wellness exams” and “televisits” more closely resemble some type of sales pitch (e.g., persuading people to sign up for Dr. Smith’s annual concierge service). There are federal and state prize notice laws that specifically address and regulate any promotions offered as an incentive for consumers to attend a sales presentation or accept a telemarketing call.

  • Resource on Rights Clearance & Copyright. What’s New in the Updated & Expanded 2nd Edition

      Permissions Seekers - Cover - 557x836THE PERMISSION SEEKER’S
    GUIDE THROUGH THE LEGAL JUNGLE®
    Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions

    Second Edition, Updated & Expanded

    (Read Complimentary Book Excerpt Here.)

    The Permission Seeker’s Guide Through the Legal Jungle explains the rights clearance process and provides detailed guidance for the legal use of music, artwork, names, film clips, and other protected materials.

    This Second Edition is completely updated for 2017 and includes new or expanded discussions on the following topics:

    Quotes. When and how much can you quote from other people’s material? Considerations for when one may and may not quote books, movies, songs, etc. without permission

    Wiretapping. When is it acceptable to record others’ activities, and when is such activity illegal wiretapping? Is it legal to photograph police activity? This topic relates to newsgathering techniques, recording of police by citizen reporters, and documentary productions.

    Political and Cause Marketing. A new chapter highlights the rights clearance issues that frequently arise during political campaign season.

    Fan Fiction. Fan fiction borrows heavily from existing books, movies, television programs, and other creative works. When is it okay to write, produce, and publish fan fiction?

    Videogames. How can you use real people and trademarks in videogames and other software applications? There have recently been several lawsuits against videogame producers for the unauthorized use of real people’s images and trademarks in their games.

    Tattoos as Protectable Art. After tattoo artists filed lawsuits against productions depicting real people who are tattooed with the tattoos designed by those artist, using subjects with tattoos has become a concern for filmmakers, photographers, videogame companies, and producers of other creative media.

    Graffiti As Protectable Art. To what extent can a producer incorporate graffiti into his work? While there are special circumstances surrounding the copyrightability of graffiti, if the graffiti is copyright-protected, its use is subject to the same restrictions as any other copyrighted work.

    Fonts. While fonts themselves are not copyrightable, the software that generates fonts and typefaces can be copyrightable. There might be restrictions on or additional payment requirements for certain uses such as ebooks, websites, and television or film credits.

    . . . AND OF COURSE MORE

    Review the full table of contents and read an excerpt of the Expanded & Updated Second Edition of the Permission Seeker’s Guide Through the Legal Jungle at www.guidethroughthelegaljungle.com/permission-excerpt.pdf

    MORE DETAILS. Authored by Joy R. Butler, Published by Sashay Communications, 978-0-9672940-7-0, 450 pages, paperback, trim size 6 x 9, retail price $29.95. Available at www.GuideThroughtheLegalJungle.com, and from retail and online stores including amazon.com and barnesandnoble.com

  • How Selecting Music for a Dance Recital Exposes the Complexity of Music Law

    A dance company plans to use several musical recordings in conjunction with a dance recital and queries whether its use of the music requires a license.

    That seems like a simple question. Yet, it quickly becomes complicated as the dance company’s efforts to research the issue yield conflicting information about how to go about licensing and whether licenses are even required at all.

    (My analysis of the dance company’s situation assumes that all the music to be used in the recital is currently copyright-protected and not in the public domain.)

    WHY ALL THE CONFUSION AND CONFLICTING INFORMATION?

    Song Versus Sound Recording

    The dance company plans to use musical recordings. One source of conflicting information might be confusion between permissions needed for the recording versus permissions needed for the underlying song. A recorded musical selection includes a copyright in the recording itself and a separate copyright in the underlying song. Each might have a different owner and each carries different licensing requirements.

    There is no general public performance right in a sound recording. Hence, the dance company’s use of the sound recording for a live recital requires no license for the sound recording. (But, as discussed below, the situation changes if the recital is recorded). In contrast, with some limited exceptions, the public performance of a song generally requires a public performance license.

    Grand Rights Versus Small Rights

    Another source of the conflicting information might be uncertainty over whether the dance company’s use requires non-dramatic performance rights (aka small performance rights) or dramatic performance rights (aka grand or large performance rights) in the song. The first category of small performance rights grants permission to present non-dramatic public performances of a song (such as playing the song on the radio, in a nightclub, or as background music in a film).

    The second category of dramatic performance rights provides permission to make a theatrical presentation of a song or act out a song. A dance performance would typically require dramatic performance rights. Non-dramatic performance rights in a song can usually be obtained through one of the performing rights organizations – ASCAP, BMI, or SESAC. Typically, you must contact the song’s copyright owner or music publishing company directly to obtain dramatic performance rights.

    WILL THE DANCE COMPANY RECORD THE RECITAL?

    If the dance company plans to record and share copies of the recital (either as hard copies or via the internet), in addition to publicly performing the music, the dance company is now reproducing and distributing the music. Those reproduction and distribution activities require a synchronization license for the songs and a master use license for the sound recordingS.

    DOES THE DANCE COMPANY PLAN TO LIVE STREAM THE RECITAL?

    Song License Requirements for Live Streaming

    For the song, live streaming of the dance recital via the internet still requires a public performance license – and, as discussed above, likely a grand or dramatic public performance license directly from the song copyright owner.

    Sound Recording License Requirements for Live Streaming

    With respect to license requirements in the sound recording for the live stream, I admit to being stymied. What is the necessary clearance for a sound recording heard during a live stream (audio-visual) event offered in real-time only?

    As mentioned above, there is no general public performance license for a sound recording, but there is a right to perform the sound recording publicly by means of a digital audio transmission. However, the Copyright Act Section 114 definition of “digital audio transmission” explicitly says “{digital audio transmission} does not include the transmission of any audiovisual work”. Does this mean that a sound recording included in a live audio-visual stream (like a dance performance) is not a digital audio transmission – in which case no sound recording public performance license is needed for the live stream? If anyone knows of case law, additional statutory language in the Copyright Act, or industry practices that shine light on this question, please share.

    Of course, if the live stream is to be archived and subsequently shared with others, that results in the same licensing requirements for the sound recording as offering a recording of the recital. A master use license for the sound recording would be required.

  • 25 Key Points about Using Music in Your Business

    Companies use music for the instant vitality, emotion, and specific mood that music can inject into a promotion, presentation, or a room. Companies are often uncertain about how they may legally use music, which uses require a license, and the best sources of music for business use.

    I addressed these issues at a recent webinar, “Using Music at Work”, sponsored by the Copyright Clearance Center. Here are 25 key points I shared about using music in your business:

    SOME BASICS

    1. Common business uses of music that might require a license include

    • using music in an advertisement or promotion,
    • offering music at a live, public event (e.g., convention, trade show), and
    • incorporating music into training materials or into a business presentation.

    2. Music licensing can be complicated. Here is an easy-to-grasp general take-away. If your company is sharing music externally (on the internet – in an advertisement – at a conference), the company’s use of that music likely requires a license. Even if the company is sharing the music only within the organization, the use of that music might still require a license.

    3. While music licensing is not rocket science, it is also not intuitive. As an initial step in determining which music licenses you need, you must understand that a song differs from a sound recording; and that each has its own separate copyright.

    4. Typically – but not always – the song and the sound recording have different owners. The song copyright is owned by the songwriter or by the songwriter's music publishing company. The sound recording copyright is owned by the record label that released the recording. The same song can have multiple sound recordings with different ownership of each sound recording.

    MUSIC LICENSES MOST COMMONLY SOUGHT FOR BUSINESS USE
    (Public Performance, Synch, and Master Use Licenses)

    5. Public performances of songs almost always require a public performance license. License requirements for the public performance of sound recordings are limited to public performances rendered over the internet or by other digital means.

    6. If you play a song in a retail store, in a restaurant, at a conference, or other public venue, those are public performances (as opposed to private performances) of the song and a license is required. It does not matter whether the public performance is rendered by a live band, a CD, a DJ, or someone’s smartphone.

    7. Most song public performance licenses are issued by performing rights organizations (PROs). The PROs for songs in the United States are ASCAP, BMI, and SESAC – which have been around since before the 1940s – and Global Music Rights, a relatively new PRO established in 2013.

    8. Each PRO controls a different catalog of songs. Typically, the PRO issues blanket licenses that allow licensees to perform any song in the catalog of that PRO. Public performance licenses in songs are fairly easy to obtain. ASCAP, BMI, and SESAC offer websites where you can obtain and pay for the public performance license you need.

    9. Using music in a video, advertisement, or any audio-visual presentation requires a synchronization (or synch) license from the copyright owner of the song and a master use license from the copyright owner of the sound recording.

    10. There is not a specific name for every different manner in which a company might use music. For example, there is no specific name for incorporating music into your training materials. Licensing for training and business presentations is more similar to licensing for a video presentation since you need direct permission from the song and sound recording copyright owners

    COMPARISON OF MUSIC SOURCES FOR AUDIO-VISUAL, TRAINING, AND BUSINESS PRESENTATION PURPOSES
    (Popular Music, Production Music, Indie Music, Creative Commons Music)

    11. As noted above, public performance licensing is relatively easy. In contrast, acquiring music to incorporate into company promotions, videos and presentations can be more difficult. When evaluating where and how to obtain music for this purpose, a company should consider ease-of-licensing, cost, suitability for the company needs; and potential risks.

    Benefits and Advantages to Using Popular Music

    12. Popular music (i.e., music by well-known artists, music listed on Billboard charts) is the most difficult to acquire. Its benefits include immediate recognizability and conveyance of the mood or period you wish to evoke.

    13. Using popular music requires contacting and directly negotiating with the music publisher for a synch license in the song and with the record label for a master use license in the sound recording. These owners are likely major music industry companies and it is not uncommon for permission requests to a major music company to elicit no response.

    14. License fees for popular music are frequently in the tens of thousands of dollars, depending on the popularity of the music and how it will be featured or used in the audio-visual production (e.g., background, foreground, over the credits).

    Benefits and Advantages to Using Production Music

    15. Production music companies are in business solely to license you content so they often make the acquisition process very easy by allowing you to preview, purchase a license, and download music online. The production company provides both the synch license and the master use license. The cost for some production music can be as low as $30. Most uses are usually less than $1,000.

    16. Using production music carries minimal risk. Nevertheless, you should read the license agreement to be certain that your specific use is permissible. For example, some production music companies do not allow their music to be used in political advertisements.

    17. As a downside, while production music can be very well-done music, it is not going to be music that was on the Billboard Top 100 and that people immediately recognize.

    Benefits and Advantages to Using Indie Music

    18. Music by independent musicians (i.e., musicians whose music is not distributed by a major record group and, as a result, might have narrower distribution and not be as well-known) is likely to be significantly less expensive than popular music and somewhat more expensive than production music. While it probably lacks the broad immediate recognition of music that was a Billboard Top 100 hit, it might be recognizable within a particular niche – depending on the indie musician’s fan base.

    19. While a company will want all its music licensing agreements to include appropriate representations, warranties, and indemnifications, this is especially important when obtaining music from indie musicians. If indie musicians lack the funds and resources to document the ownership rights in original music on which they collaborate, ownership and rights questions can eventually result in a dispute among the indie musicians. And your company does not want to find itself in the middle of any such intra-band dispute.

    Benefits and Advantages to Using Creative Commons Music

    20. Creative Commons music is free to use, and easy to find and download on the internet. It is unlikely to be immediately recognizable music. Using any creative commons material is higher risk because it comes with no representations, warranties, or indemnifications.

    Benefits and Advantages to Using Commissioned Music

    21. You can commission original music. The expense depends on the commercial stature of the musician providing the music. It’s a longer acquisition process because you must negotiate the transaction and then wait for the composition of the songs and the creation of the sound recordings.

    22. While the music is not immediately recognizable (because it is brand new music), it can be tailored to the company’s needs. If you have a well-drafted agreement for creation and acquisition of the original music, there should be minimal risk.

    WHAT HAPPENS IF A COMPANY FAILS TO LICENSE MUSIC? AND WHAT ABOUT FAIR USE?

    23. Using music in your business without obtaining the required license might result in a DMCA take-down notice for materials posted online. There is also the possibility of a cease and desist letter with or without a demand for a license fee payment for both online and offline use. In a worst case scenario, the legal consequences of infringing music will generate a copyright infringement lawsuit against the company.

    24. Fair use is subjective – and just because you believe a use is a fair use doesn’t mean the rights owner will agree with you. The situations where fair use applies to music for company use are probably not as broad as some people believe. In my view, it is rare for a company’s use of music in an advertisement or promotion to qualify as a fair use. There might be situations or circumstances of using music in training materials that result in credible fair use arguments.

    25. Like many legal issues, the answers to music licensing requirements and rights clearance questions are sometimes unclear. Sometimes, the right approach depends on your tolerance for risk. Here are questions to ask yourself when conducting a risk assessment over music use – or any other creative material.

    For more details and examples of these key points, you can listen to a recording of the entire “Using Music at Work” webinar at http://go.copyright.com/l/37852/2017-02-24/cg7t1z

  • Does the Fearless Girl Violate the Copyright of Wall Street’s Charging Bull?


    Fearless Girl & Charging BullIn the late 1980’s, artist Arturo Di Modica created a 7,000 pound bronze bull statue, “Charging Bull”, and surreptitiously placed it in front of the New York Stock Exchange. Di Modica calls the statute a symbol of prosperity and strength. in March 2017, Kristen Visbal’s “Fearless Girl”, a 4-foot statue of a pony-tailed, arms-on-hips young girl, was placed a few feet away where she bravely stares down “Charging Bull”. Di Modica claims that “Fearless Girl” corrupts his artistic message and wants the statue of the girl moved elsewhere.


    Does “Fearless Girl” Result in a Derivative Work of “Charging Bull”?

    One of the copyright owner’s exclusive rights is the right to prepare derivative works of the copyrighted work. A derivative work is a new work based on or originating from another preexisting work. You can think of a derivative work as a spin-off product or as an adaptation.

    For example, the Harry Potter films are derivative works of J.K. Rowling’s novels. If you write new lyrics for the melody of a song or translate the song into another language, you have created a derivative work of the song. Examples of derivative works listed in the Copyright Act’s definition of the term include a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted (emphasis mine).

    Does the placement of “Fearless Girl” recast, transform, or adapt the “Charging Bull” artwork. Or, alternatively, is the proximity of “Fearless Girl” to “Charging Bull” more akin to hanging two contrasting paintings next to each other in an art gallery or museum – which is an act that would not result in a derivative work.

    Di Modica Might Have Moral Rights in His Artwork

    Di Modica claims that the placement of “Fearless Girl” distorts his work. That complaint focuses on moral rights. Moral rights protect the artist’s reputation, honor, and integrity. In the United States, such a complaint often falls flat.  Unlike many European countries where artists have strong moral rights protections, the United States does not generally offer moral rights in creative works.  The Visual Artists Rights Act (VARA) offers a limited exception to this general rule. VARA, which became effective in 1991 and is incorporated into the Copyright Act,  offers some moral rights protections to a very small category of visual artwork.

    Sculptures are one of the categories of VARA-protected works so, if “Charging Bull” qualifies for inclusion in that category, Di Modica might have some actionable VARA claims. Under VARA, an artist has the following moral rights:

    • the right to claim authorship of the work

    • the right to prevent use of his or her name on a work the artist did not create

    • the right to prevent use of his or her name on mutilated or distorted versions of the work

    • the right to prevent mutilation or distortion of the work

    Those last two seem most relevant for Di Modica. Hence, the VARA-related question is whether the placement of “Fearless Girl” in any way mutilates or distorts “Charging Bull”. A very subjective question indeed.

    Public comments to the newspaper coverage on the issue are divided. There are those who sympathize with Di Modica and believe “Fearless Girl” radically alters the artistic statement he intends with “Charging Bull”. Then there are those commenters who think Di Modica is being ridiculous and just “needs to get over himself”. So lots of variety for a potential jury pool if Di Modica decides to pursue litigation.

    What Are New York’s Rights in “Charging Bull”?

    An artist can assign or transfer his exclusive right to create a derivative work. An artist can also waive his moral rights via contract. That begs the question of what rights and permissions New York holds in “Charging Bull”.

    The answer is unclear. Evidently, Di Modica initially donated “Charging Bull” by installing it on Wall Street without a permit and without any authorization. City officials first removed the artwork but then relented to public pressure and put it back. Those circumstances suggest that there is no written agreement between Di Modica and the City of New York regarding “Charging Bull”. New York might argue that it holds a valid license to take certain actions regarding the work – even if some of those licenses might be implied rather than written.

    (Image Credit: Christopher Penler / Shutterstock.com)

  • Streaming Music Services in the Workplace. Which Business Use Is Permissible?

    Thousands of recorded songs are easily available thanks to Pandora, Spotify, Amazon’s Prime Music, and other streaming music services. Under which circumstances may a business use these services? In preparation for my "Using Music at Work" webinar presentation, I perused the license terms of a few streaming music services.

    Streaming Music Is Usually Limited to Personal Use. Streaming music services generally restrict usage to personal, non-commercial use. Hence, if you are the owner of a business such as a barber shop, restaurant, retail store, or gym, you cannot use your typical consumer streaming account to offer music to your patrons. There are business license versions of streaming music accounts that allow some commercial use but . . .

    Commercial Versions of Streaming Music Licenses Have Limitations. A business that offers performances of copyrighted music to the public (e.g., its patrons) must have a public performance license from the copyright owner of that music. In the United States, there are performing rights organizations (PROs) – ASCAP, BMI, and SESAC – that issue most of those performing rights licenses for songs. The benefit to obtaining your business music via a service is that the service handles all the necessary performance rights license acquisition work so your company need not directly interact with the PROs.

    Typically, the business license offered by streaming music services is meant only for mood music. Mood music is that background music you hear at a doctor’s office, hair salon, or grocery store. One service states that the service does not include the applicable PRO fees if the business uses the service for music used to accompany dancing (including ballrooms, discotheques and dance studios), bowling, skating or instructed health club classes; or for music used in a location where a cover charge is charged.

    Can a Business Use Streaming Music Service Just for Staff? My analysis uncovered some gaps and gray areas on this question. Licensing is required for the public performance of songs (and, in limited circumstances, of sound recordings). Licensing is not required for the private performance of songs or sound recordings. Disagreements on what constitutes a public performance versus what constitutes a private performance have sparked many lawsuits. Nevertheless, one can certainly credibly argue that a group of three co-workers listening to streaming music within the confines of their office is a private performance. As the number of employees in your business setting increases, the closer you get to that public performance threshold – music for 20 workers staffing the kitchen of a restaurant, music for 50 employees at a holiday dinner, music for 250 sales representative at the firm’s retreat??? It is not always clear where to draw the line.

    However, arguments about a private performance might not always be relevant – depending on the specific licensing language used by the streaming service. Not all the streaming services use the phrases “private performance” and “public performance” in their terms of use. For example, some restrict use of their standard accounts to “personal, non-commercial” use. One prohibits use of music from the standard account in “any business establishment”. That terminology leaves gray areas too. If five colleagues and I operate a start-up from my home, am I in a business establishment?

    You May Not Use Streaming Music as a Soundtrack for Your Original Audio and Audio-Visual Productions. Even though streaming music is played in real time and is not downloaded to your computer, it is possible to capture a copy of the recordings. But just because you can capture it doesn’t mean you should. Hopefully, all readers realize that the streaming services’ terms of service do not allow using the music as the soundtrack for your own production. In fact, there are several issues to consider when adding music to your company video.

    I will address these and other issues related to the use of music within the work and office environment at a complimentary webinar, "Using Music at Work", sponsored by the Copyright Clearance Center on Thursday, February 23, 2017 from 1:00 pm – 2:00 pm EST. You can find details about the webinar at http://go.copyright.com/l/37852/2017-01-25/bjvkfz

  • Using Music at Work – Free Webinar on February 23, 2017 at 1 p.m. ET

    I am the speaker for a webinar about uses of music within the work and office environment. The Copyright Clearance Center is sponsoring the complimentary webinar to take place on Thursday, February 23, 2017 from 1:00 pm – 2:00 pm EST.

    Topics I will cover during the webinar include the following:

    • Examples of company music use that requires licensing

    • Music licenses and how they differ (with an emphasis on music licensing concerns related to company advertisements, promotional videos, training materials, and social media activity)

    • Potential costs and consequences of ignoring music licensing requirements

    • Sources of music for company use – from the reasonably priced to expensive, the easily obtainable to not-so-easily obtainable, and the (almost) risk-free to high-risk

    For more information and to register for the Using Music at Work webinar, please visit http://go.copyright.com/l/37852/2017-01-25/bjvkfz

  • Don’t Use Contest Rules Like These. A Real-Life Example of Deficient Contest Rules.

    Recently, I encountered the following short paragraph that professed itself to be rules for a contest. The gist of the paragraph remains intact but I have altered details to protect the contest-rule-drafting challenged.

    {Contest Sponsor} invites you to enter its 2017 writing contest. Entry Deadline: June 15, 2017. Word Limit: 500 words. Rules: You can submit a work of fiction, non-fiction, or poetry. Your entry must include all the following: the name of a flower, a reference to a 1930’s motion picture, a form of physical activity, and perseverance. The winner will receive {the contest prize}.

    What’s Wrong with These Contest Rules? Quite a bit as these rules reflect many deficiencies. I discuss four significant deficiencies in this blog post:

    Entry Requirements Are Incomplete.
    A writing contest should specify requirements for language, length, and formatting (e.g., typed, double-spaced, file format for online submissions, etc.). While these rules place the word limit at 500, there is no clear indication that the sponsor would reject my essay composed in Egyptian hieroglyphics and chiseled onto a stone tablet.

    No Information about Judges.
    A sponsor does not necessarily need to identify the judges by name – and, in some cases, the better procedure is not to identify the specific judges in the rules. Nevertheless, a contest sponsor should at a minimum describe the pool from which judges come and provide details illustrating that the selected judges are qualified. For example, The New Yorker's weekly cartoon caption contest identifies its judges as members of the editorial staff of The New Yorker. Few would argue that members of that group are not qualified to select the cartoon caption contest winner  – even though the contest rules do not specifically identify any judge by name.

    Lack of Specific Judging Criteria.
    This example does not even take the partial – yet inadequate step – of saying the prize will be awarded to the best essay. I refer to a “best essay” award as inadequate – because what exactly does it mean to be the best. To some extent, most judging criteria for a writing contest will be subjective. Nevertheless, the sponsor places itself in a much better position to defend itself from participant-dissatisfaction and regulatory inquiries by explicitly itemizing judging criteria in its rules. Judging criteria for a writing contest might include originality, adherence to submission guidelines, writing skill, and overall appeal.

    In a worst-case scenario, failing to establish objective criteria for awarding a contest prize can inadvertently alter a legal skill-based contest into an illegal lottery. Mistakenly offering an illegal lottery or gambling game is one of the 10 Common Legal Mistakes for Contests and Sweepstakes Promotions.

    Full Rules Are Non-Existent or Gated.
    If this paragraph is meant to be an abbreviated version of the full rules, the paragraph should indicate where the full rules can be found. If there are more complete rules, the sponsor has hidden them behind a social networking gate. People interested in participating in this particular writing contest need to register at the sponsor’s online contest platform in order to obtain additional information about the promotion.

    This is similar to like-gating. Through like-gating, companies offer exclusive information, products, and promotion-participating opportunities only to those people who like or otherwise connect to the company’s social media account. While I am not aware of any court decision ruling that like-gating is illegal, it is not a best practice when offering promotions and has been discouraged by self-regulatory organizations within the advertising industry such as the Better Business Bureau’s National Advertising Division.

  • Adding Music to Your Company Video

    Your company produces a short video. To make the video more interesting, your company adds a popular song as a soundtrack. Your company now wants to post the video online. Any problems with that?

    Yes, a few. There are a few music licensing issues you should address before posting that video.

    NOT ROCKET SCIENCE; BUT NOT INTUITIVE EITHER

    While music law is not rocket science, it is not always intuitive. The music license is called by a different name depending on (i) whether you are using the song, the sound recording or both and (ii) how you are using them.

    THE COMPANY’S ASCAP/BMI LICENSE DOES NOT ADDRESS ALL THE ISSUES

    Companies mentioning this video issue often wonder if they can rely on their existing license with ASCAP or BMI for posting of the video. No, they cannot, because ASCAP and BMI issue only public performance licenses. For imbedding a recording of a popular song into a company video, the company needs both a synchronization or “synch” license (for the song) and a master use license (for the sound recording). When you obtain synch licenses and master use licenses, any necessary permission to render a public performance should be incorporated into the synch license or master use license.

    MAY THE COMPANY POST THE VIDEO ONLINE?

    There might be some opportunities for the company to post the video on YouTube through YouTube’s Content ID System which permits postings of some videos with unlicensed music (by monetizing those videos for the benefit of the copyright owners). Otherwise, posting a video with unlicensed music on the company website or social media account can yield a DMCA take-down notice (along with a copyright strike against your social media account) and, in a worst case scenario, can generate a copyright infringement lawsuit against the company.

    CONSIDER STOCK MUSIC INSTEAD

    I characterize obtaining synch and master use licenses for commercially popular music as quite difficult – and expensive. That’s why I often recommend that clients consider the production music library route as part of creating ads with no copyright or trademark problems. Using music under a Creative Commons license is also a possibility to explore. However, Creative Commons materials typically come with no representations, warranties, or indemnifications and, for that and other reasons, using Creative Commons materials is not always risk-free.

  • Obtaining Personal Consent and Release via Placard Notice. Does It Really Work?


    Consent via PlacardYour organization is hosting a festival, a seminar, a book-signing, a musical concert – or other event that will attract attendees. You want to capture images of people enjoying your event – and then share those images in news reports about the event’s success, on social media, and in promotional pieces advertising next year’s event.

    Do You Need a Personal Consent from Each Person Depicted?

    The need to obtain consent varies with the circumstances and with each state’s law. For this blog posting, suffice it to say that while there are First Amendment and other circumstances in which consent is not required to use a person’s image, there is rarely any downside to having the person’s consent.

    How Do You Obtain Consent from All Attendees?

    Since having consent is preferable, how do you logistically obtain a release from the dozens, hundreds – maybe even thousands of people at your event? A posted notice might function as a practical and effective method of obtaining those consents. Pictured at the opening of this blog post is one such notice recently used at a community festival.

    Is Consent Via Posted Notice Enforceable?

    Personal consents and releases come in various forms – written, verbal, explicit, and implied. Each form can potentially be valid and enforceable. The “consent via placard notice” method takes advantage of the implied approach to personal consent. When a person realizes he is being photographed or filmed for a particular purpose and makes no objection, the person has provided implied consent to his depiction for that purpose.

    While implied consent can be enforceable, it is not appropriate for every use and every situation. Here are some general tactics organizations can use for maximizing the effectiveness of consent via placard notice:

    Determine whether Attendees Have the Capacity to Consent. For example, minors do not have the capacity to give consent. Any consent from a minor requires the consent of the minor’s parent or guardian. If your event is likely to attract many unaccompanied minors (e.g., an event attracting teenagers), consent via placard might not produce optimal results.

    Give People Reasonable Opportunity to Decline. This means people need to see the notice. Hence, place the notice in a conspicuous location to maximize chances people will see it as they enter the venue.

    Also, for the consent to be enforceable, people should have a reasonable opportunity to decline participation. If the person has paid $200 for a ticket to a show and declining to enter beyond the posted notice means not seeing the show and forfeiting the $200, the person has an argument that the consent is not valid.

    Use Images in an Incidental Manner; Not a Featured Manner. Ideally, you will use the images in a manner that focuses on the event and in which the people depicted function as background – incidentally or casually captured on camera as part of covering the event. Your use cannot be a disguised advertisement for the sale of a product or service. You might seek additional legal review to evaluate the risk of a defamation claim if the image depicts the subject in a manner that might be embarrassing.

    A case involving Ohio news anchor Catherine Bosley illustrates when use is featured and commercial rather than incidental and when implicit consent is insufficient. While on vacation in Florida, Bosley participated in a wet-t-shirt contest. Subsequently, images of Bosley at the event and in various stages of dress along with her name were used on the cover of a WildWetT video, in the members-only portion of an adult entertainment website, and in direct promotion for other sexually-related goods. The defendants claimed to have the anchor’s consent for use of the images since written notices informing the wet-t-shirt contestants of the future commercial use of their images had been placed around the dressing room, stage, entrances, and exits of the event. The court ruled that the defendants’ use was a commercial use and, thus, under Florida law, required at a minimum Bosley’s explicit verbal consent in order to be valid. (The case is Bosley v. WildWetT.com, 310 F. Supp.2d 914 (N.D. Oh. 2004)).