Broadcasting (Jan - Mar 1950)

WOR-tv SRb.4i:»'.4 )-. A'SW FORK i CHANNEL ^ _, „ , yracuse Televii^h. rogram ^eu WE£K OF OCT CHANNEL 13 2IS-216 MI6«ycifS KSD-TV CH*y«^i. * !?i-5T L'T^S mOGRAM SCHEDULE WESH Of JA«yAR¥ 3a. i?5fl STiNGHC-_F: -OiO STA" Each Case Needs Individual Study By JOSEPH A. McDONALD ABC Vice President and General Attorney THE question of music rights in TV has been carefully considered lately, particularly in connection with the ASCAP negotiations, but a glance at the program schedules shows the present and growing importance of drama. The clearance of dramatic material for broadcasting presents some very interesting questions as a matter of law and good business judgment. An adequate treatment of this subject would probably be a cross between a review article and a book. However, this is intended to be but a brief general summary of some of the practical questions involved in clearing literarj' material for dramatic presentation in television. In this form it is hoped that it may be of some interest and help to telecasters in general and to their programming people in particular. The clearance of material for any form of broadcasting is logically subdivided into a consideration of the status of music on the one hand and literary material on the other. Aside from certain technical differences stemming from the provisions of the copyright act itself, the most significant difference between clearance in the two fields is that in the case of music many of the questions involve non-dramatic renditions and are determined on the basis of industrywide agreements with groups controlling the performing rights such as ASCAP, BMI and SESAC, or a representative of groups of owners such as the Music Publishars Protective Assn. Cases Differ In the field of literary material, however, the status of each work has to be examined as a special case. Naturally, these special cases fall into one or more of several categories of legal relationship and some literary agents do represent a number of authors, but by and large the rights are individually controlled. To use a real estate analogy, the clearance of a dramatization for television broadcasting is like examining the title to a piece of individually owned residential property, whereas the clearance of musical material is often more akin to making a lease with the owner of a large apartment house. Under our copyright statute the Page 61 • BROADCASTING exclusive rights granted the owner of dramatic material may be boiled down to the grant of an exclusive license (1) to publish, (2) to translate, (3) to perform and (4) to record the work. The significance of the last two to broadcasting is obvious. As is well known, some plays are written as plays ; others are dramatizations of nondramatic works. In either case the basic work may be copyrighted under the statute. The essential features of statutory copyright distinguishing it from common law rights are that the owner of a statutory copyright has a limited period of time in which to enjoy his exclusive rights. He gets practical, because material produced by an employe belongs to the employer, as though the employer had written it, subject to such provisions as there may be in this respect in the contract of employment or in any applicable collective bargaining agreement. While a certain amount of literary material might be produced in this way, home-grown, a major part of the dramatic program schedule will of necessity require the obtaining of such material from outside sources. Such material is available in various forms. First, it may be nondramatic literary material capable of dramatization by writers working as independent JOSEPH A. McDonald, ABC vice president, general attorney and corporation secretary, is an authority on copyrights. He is a member of the copyright committee of the Assn. of the Bar of the City of New York, in addition to being a member of numerous other legal groups. With ABC as general counsel since 1945, he served with NBC before that for 13 years in various legal capacities. He has a bachelor's degree in law from Fordham U. and a master's degree from New York U. the additional advantage, in the event of infringement, of minimum damages in case actual damages cannot be proved as well as an allowance for counsel fees, and he runs no risk of losing his exclusive rights through an unintended publication which might be deemed to have been authorized by him. It is important to note that the owner may authorize performances of an uncopyrighted drama on the stage, whether for a paid audience or not, and on radio and television broadcasts without "publishing" the work in the copyright sense and thereby losing his exclusive rights. As a matter of practice, plays are usually produced on Broadway without being copyrighted until such time as the author and his publisher decide to publish the drama in book form. This has the effect of lengthening the period of statutory protection by the length of the run prior to the publication of the book and at the same time securing the benefits of statutory protection in the work after its publication. To determine who owns the right to perform and record a specific piece of literary material, it is necessary to start with the man who wrote it. Obviously, one way for a television producer to be sure of his material would be to write it himself. This is not entirely im contractors, by specially engaged employes or by staff personnel. It may already exist in dramatic form, but in most cases it will require adaptation to television production techniques, or at least it will need condensation as a matter of timing the program. In addition, the television broadcaster will have available for consideration a great amount of dramatic material already recorded on film. This may be film made primarily for exhibition in motion Mr. McDonald February 13, 1950 picture theatres, or primarily for television broadcasting or both. In dealing with dramatic material in motion picture form, an obvious short cut is available in the clearance of film obtained from responsible sources. If the broadcaster has confidence in the supplier of the film, its purchase or lease with appropriate warranty and indemnity provisions eliminates as a matter of concern the clearance of rights in the absence of notice of claims made by others with respect to such material. Even in the latter case^ depending upon the standing of the supplier of the film, it might well be decided to proceed with the performance unless enjoined and merely pass on to the supplier the obligation of defending any suit which might be started and to pay any damages which might be found to be due. On the other hand, in many cases it will be highly desirable, either because of unwillingness on the part of the supplier to give a warranty and indemnification or because of uncertainty as to his ability to respond to claims of infringement, to check back to ascertain the true location of the performing rights. Examine Contract The first thing to bear in mind in making such a search is that the film itself may be, and probably is, copyrighted. The copyright owner has, on the face of it, all rights in the work but this is of significance only when dealing with the copyright proprietor himself. In most cases the deal will be with an individual who has physical possession of a reel of film, and the problem is to ascertain how he came by it and what rights he obtained with respect to its use as distinguished from the mere right to hold possession of the print itself. The logical way to proceed is to ask to see the contract under which the holder of the print obtained the print. This in turn leads to the inquiry of where the one from whom he obtained the print obtained it and under what circumstances. Just as in the case of examining the title to a piece of real estate, it is necessary to go back step by step until proof is obtained of a license to perform the film from the copyright owner. At this point you must stop again and consider whether to rely (Continued on Telecasting 16) TELECASTING • Page 11