<b>Decision of Note:</b> No Infringement In Broadcasting Commercials

The U.S. District Court for the Southern District of New York decided that radio stations weren't liable for airing commercials made by third parties that failed to obtain licenses to use the plaintiff's songs and sound recordings in the commercials. Freeplay Music Inc. v. Cox Radio Inc., 04 Civ. 5238 (GEL).

The district court noted that “the Broadcasters have a performance license from Freeplay, via BMI [to air the songs]. … [R]egardless of any violation of reproduction rights that may have occurred in the creation of a piece of programming, a party who has the right to perform the copyrighted work can perform it without itself becoming liable for the underlying infringement. It makes no difference whether the broadcaster has the right to perform the work because no exclusive performance right existed in the first place [ie, there is no performance right for airing sound recordings on terrestrial radio] … or because the performance right existed but had been licensed to the broadcaster (as with Freeplay's musical compositions here).”

The court added: “[A]ssuming arguendo that radio commercials using Freeplay's music would qualify as derivative works, the [Copyright Act] makes the creation of the derivative work an infringement of Freeplay's copyright … By broadcasting a putative derivative work created by a third-party advertiser, the Broadcasters did not prepare a derivative work.”

The U.S. District Court for the Southern District of New York decided that radio stations weren't liable for airing commercials made by third parties that failed to obtain licenses to use the plaintiff's songs and sound recordings in the commercials. Freeplay Music Inc. v. Cox Radio Inc., 04 Civ. 5238 (GEL).

The district court noted that “the Broadcasters have a performance license from Freeplay, via BMI [to air the songs]. … [R]egardless of any violation of reproduction rights that may have occurred in the creation of a piece of programming, a party who has the right to perform the copyrighted work can perform it without itself becoming liable for the underlying infringement. It makes no difference whether the broadcaster has the right to perform the work because no exclusive performance right existed in the first place [ie, there is no performance right for airing sound recordings on terrestrial radio] … or because the performance right existed but had been licensed to the broadcaster (as with Freeplay's musical compositions here).”

The court added: “[A]ssuming arguendo that radio commercials using Freeplay's music would qualify as derivative works, the [Copyright Act] makes the creation of the derivative work an infringement of Freeplay's copyright … By broadcasting a putative derivative work created by a third-party advertiser, the Broadcasters did not prepare a derivative work.”