The Law as It Affects Broadcasting.
The Radio Act of 1927 functioned quite efficiently, but with the growth of the industry a new law was needed which would be more explicit in its regulation of broadcasting. The Radio Act of 1927 was designed primarily for the regulation . . . of all forms of interstate and foreign radio transmissions and communications within the United States over all the channels of interstate and foreign radio transmission: and to provide for the use of such channels, but not the ownership thereof, by individuals, firms, or corporations, for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right beyond the terms, conditions, and periods of the license. The Radio Act of 1927 also provided for the creation of a body of five members, to be known as the Federal Radio Commission. Briefly, its duties were to (1) classify radio stations; (2) prescribe the nature of the service to be rendered by each class of licensed stations; (3) assign hands of frequencies or wave -lengths to the various classes of stations, and individual stations, and determine the power which each station shall use, and the time during which it may operate; (4) determine the locations of stations, or classes of stations; (5) regulate the kind of apparatus to be used with respect to its external effects and the purity and sharpness of the emissions of each station and from the apparatus therein; (6) make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this act. One of the first acts of the Federal Radio Commission was to assign the region in the radio spectrum from 500 to 1500 kilocycles to commercial broadcasting; later it made three high-fidelity channels available for a combined experimental -commercial use -1530, 1550, and 1570 kilocycles. It also divided the country into seven radio zones and decided what frequencies and powers should be available in those zones. The following classification of radio stations has now been established: (1) clear -channel, consisting of frequencies on which only one station may operate; (2) high -power regional, which is usually not less than 5000 watts and shares frequency with some other station in a distant part of the country; (3) regional, not less than 250 watts and usually 1000 watts at night and 2500 in the daytime; and (4) local, having 50 to 250 watts. The commission may also give the following time designations to stations: (1) unlimited, (2) limited, (3) daytime only, and (4) sharing time with another station. On June 19, 1934, the Congress of the United States approved the Communications Act of 1934, which broadened the scope of Federal control over communications so as to include telephone and telegraph as well as radio communication. This act also provided for certain changes in the commission itself, but left the radio laws essentially as they were defined by the Radio Act of 1927. The Communications Act of 1934 was based upon three fundamentals: first, the air should be public property; second, the radio industry should be privately owned and operated; and third, free speech on the air should be preserved. These principles were incorporated in Title Three of the Communications Act of 1934. Although the Radio Act specifically says that the Federal Radio Commission is to exercise no censorship over broadcasting, the commission has been able to exercise a large degree of censorship. This is because of the requirement that a station must be operating in the public interest, convenience, and necessity before its license can be renewed. Thus, if a station has not lived up to the requirements placed upon it by the commission, when the station wishes to renew its license, the commission can decide that the station is not operating in the public interest, convenience, and necessity, and so deny the application for renewal. The commission has been upheld in cases involving this very point.' There was a provision in the new law, as there was in the old one, that in the case of national emergency, all the wire and radio services could be taken over by the government. (This was done after the United States had entered the First World War.) The President was given the power to take over these services but was required to give the employees just compensation for their services. The 1934 act provided for the Federal Communications Commission to be composed of seven men appointed by the President with the advice and consent of the Senate, each serving for a term of seven years. The stipulation was made that not more than four of the men on the commission. should be members of the same political party. At the inception of the act the members of the first commission were appointed for staggered terms so that only one member of the commission would retire each year. One of the changes that the later law made was that of authorizing the commission to issue radio licenses for a period of three years instead of six months, as had been allowed under the act of 1927. The act also forbids the conducting of lotteries over the radio. The first duty of the F.C.C. is to supervise the granting of licenses to applicants for radio stations, in order to assure good, strong radio signals, tolerably free from interference, to all sections of the United States. This involves the assignment of the number of electromagnetic waves sent out per second over the air by a transmitter, commonly known as frequencies. This is an engineering problem and requires the applicant to prove to the commission that its requested frequency will not interfere
with any other station using the same wave length. Surveys are made by engineers employed by the applicant and the results are considered by the technical staff of the commission. This power to regulate the granting of licenses is probably the most important duty of the commission. The Communications Act of 1934 applies to all interstate and foreign communication by wire or radio which originates in the United States or which is received within the United States, and to the licensing and regulation of all radio stations. Not only does the Federal Communications Commission regulate the standard -broadcast stations, but it also has control of those that are designated as relay, international, television, facsimile, high -frequency, development, and noncommercial and educational stations. In connection with this supervision of the technical details, the commission has the power to approve or disapprove proposed mechanical equipment to be used by a station and the location of the antenna, and it may require the use of directional antennas in the case of interference. Application forms for the different types of broadcasting are obtained from the commission and they are very penetrative in their technical requirements. Various prerequisites are set down for good standards which must be complied with by the station. In receiving application for a radio station, the F.C.C. requires a vast. amount of data. Not only does it insist that the applicant set forth all the equipment that will be used by the proposed station, but, it desires to know about the location of the transmitter and the property rights of the applicant in the ground upon which the antenna and transmitter are to be located. The applicant's profession or occupation must be thoroughly outlined, particularly because no alien is permitted to be the owner of a broadcasting station. If the applicant is a corporation, all the facts concerning the incorporation, stock, sales, etc., must be set forth. It must be shown that the station will be self-supporting; consequently, even before the license is granted, tentative contracts must be entered into between the applicant and local concerns which agree to broadcast commercial programs. A complete statement of the anticipated income and the cost of operation must be submitted. Typical program schedules for a week are required. Before the application will be accepted the necessary funds for the building and equipping of the station and for its maintenance must be placed in escrow. The applicant must submit its proposed wave length or frequency and request a power assignment. Letters are generally obtained from all civic bodies pointing out that the proposed station will serve public interest, necessity, and convenience. The population of the city in which the station is to be located must be given, together with its annual sales and bank clearances. Surveys must be made of ground conditions in the location where the transmitter is to be built, because these affect the signal. Other stations which are on the same frequency are permitted to file exceptions to the granting of the application. At present it is extremely difficult to obtain a license for a radio station in the standard band; however, as a result of the Havana Conference and the shifting of frequencies, additional openings will be available. Approximately the same procedure must be followed in applying for one of the new frequency -modulation stations, either in the commercial band or in the educational band. There are two ambiguous phrases which really are the basis of radio law: first, "power to determine whether or not a radio station is acting for public interest, necessity, and convenience," and, second, "no person within the jurisdiction of the United States shall utter any obscene, indecent, profane language by means of radio communications." If it is found by the commission that the area which should be served by the proposed station is already well served by other stations, public necessity and interest would not demand the establishment of a new station. It must be shown by the applicant not only that commercial programs are to be broadcast, but that there will also be public-service programs of interest to the particular locality. Just what types of programs satisfy public interest and necessity is not known. The terms "profane" and "indecent" have been far from positively defined by the courts, legislature, or commission, much to the dismay of broadcasters. Whether words such as "damn" and "hell" and expressions such as "My God!" are considered to be profane depends much upon the way they are uttered and used. That the Federal Radio Commission had the right to prohibit the use of obscene language over the radio was established in the case of Duncan v. U.S.' Matters of indecency in many instances depend upon the presentation. Stations are inclined to lean over backward in order to avoid censorship in these respects. The commission is a quasi-judicial body and all complaints against any radio station in the United States are referred to it. These complaints most often come in letters from the listening public or from the field staff which the commission maintains for this particular purpose. When a complaint is received, if it does not demand immediate attention, it waits until the six months' period for which the station is licensed has expired and the station in question has come up for relicensing. When such a hearing is held, the legal staff of the commission sits as judges to decide whether or not the license should be refused, or what action should be taken. The decisions of the commission may be appealed to the Court of Appeals of the District of Columbia and then to the Supreme Court of the United States. This, however, is very seldom done for the simple reason that the industry has adopted the attitude of peace at any price.
The commission considers applications for licenses, for the renewal of licenses, for the modification of such licenses, and for the transfer of a license. It has laid down regulations for the use of facilities by candidates for public office. It requires a radio station to make clear that broadcast matter of a commercial nature is paid for by the advertiser. It grants separate licenses for mobile service. The commission determines whether material may be originated on a foreign soil and carried by remote control to an American station to be broadcast, as well as whether such material may be taken across the border from the United States and broadcast by a foreign station. It does not permit a station to pick up a program being broadcast by any other station and rebroadcast it without the written consent of the originating station and of the commission. It has the power to determine whether programs in other than the standard. band may be of a commercial nature. Recently it determined that shortwave programs might be commercial and set aside a band in the frequency -modulation allotment for commercial broadcasts. The commission has gone so far as to determine when television sets can be justifiably marketed for the reception of television programs. All operators obtain their licenses from the Federal Communications Commission. There is very little difference in ruling by the present commission with regard to sustaining programs originating in an educational institution and commercial programs originated by an advertiser. It seems to be the attitude of the present commission that educational programs advertise the educational institution and are therefore in the same category as any advertising presentation. In connection with the condemnation of the content of the commercial radio program, the advertising matter is considered by the Federal Trade Commission, which is not a part of the Federal Communications Commission, but is a separate governmental agency supervising the truthfulness of advertising material. If the radio station is found to be giving commercial programs which do not conform with the standards of advertising set down by the Federal Trade Commission, its license may be revoked. This happened in the case of a doctor who used a radio station to give medical advice of doubtful value over the air. In order to eliminate international interference on standard -broadcast channels, the North American Regional Broadcasting Agreement called for the reallocation of frequencies in the United States, Canada, Cuba, and Mexico. This agreement was drawn up in the form of a treaty dated December 13, 1937. Although it was ratified by the first three countries, it was not until 1940 that Mexico ratified it. The terms of the agreement governed the distribution of the 106 channels in the broadcast band, ranging from 550 to 1600 kilocycles. This agreement requires the shifting of frequencies of 777 of the 862 American stations.
These may be classified as libel and slander. The main distinction between the two is that libel is written and slander is oral defamation. Libel is considered the more serious of the two. For libelous utterances a man can, in most states, be held criminally liable, while for committing slander he is accountable only for civil damages. These laws have their basis in the old common law, and at the present time every state in the Union has legislative statutes concerning slanderous and libelous remarks. With the advent of the radio, a whole new field was made available to which the laws of defamation could apply. The first case for defamation by radio did not arise until twelve years after the introduction of broadcasting on a commercial scale in the United States. In 193e, Station KFAB, located in the state of Nebraska, allowed a political candidate to speak over the radio. The station had been compelled to allow him to speak by a provision in the Federal Radio Act of 1927 which made it mandatory for a station to give to each of rival candidates an equal opportunity to speak over its facilities. KFAB had allowed Mr. Sorenson, who became the plaintiff in the subsequent suit, to speak, and it therefore had to permit Mr. Wood, who became a codefendant with the radio station in the suit, to speak also. This same provision in the Federal law prevented the radio station from exercising any censorship over Mr. Wood's speech. Mr. Wood spoke and uttered defamatory remarks about Sorenson, who thereupon sued both Wood and the broadcasting station. In the case of Sorenson v. Wood and KFAB Broadcasting Co.,' the Supreme Court of Nebraska applied the same defamation doctrine to the radio station that applies to the newspapers. It held that the station was jointly liable with the actual defamer. In this connection the court said: The publication of a libel by a radio to listeners over the air requires the participation of both the speaker and the owner of the station. The publication is not completed until the material is broadcast. This is exactly the same doctrine that applies to defamation by publication in newspapers. The court also declared at the same time that, as in the case of newspapers, defamatory remarks over the radio constituted libel and not slander. The fundamental principles of law involved in publication by a newspaper and by a radio station seem to be alike. There is no legal reason why one should be favored over another or why a broadcasting station should be granted special favors as against one who may be the victim of a libelous publication.
In the answer to the defense of KFAB that the Federal statute prevented the station from censoring the speech of Wood, the Nebraska court held that this statute merely prevented the station from censoring words as to their "partisan or political trend," but did not give the radio station the right to "join and assist in the publication of a libel." The significance of this decision is that Sorenson y. Wood declared that defamatory language broadcast by a radio station is libel rather than slander, and that, as is true with newspapers, due care and honest mistakes do not relieve a broadcasting station from liability for libel. While radio defamation is oral in its inception, it is more akin to the commonlaw libel action, for in the preparation of a program a great deal of deliberation is required and a broadcast results in a very wide dissemination of the defamatory material. The fact also must be taken into account that many programs are now transcribed before going on the air and many are cut directly from the air, thus making it possible to retain the defamatory matter in permanent form to be disseminated at will. The next important case along the same line was that of Miles y. Louis Wasmer, Inc. et al.' In this case, Louis Wasmer, Inc., the owner of Station KHQ, had sold time on the air to an organization crusading in the interest of prohibition. In the defamatory remarks, read by an announcer of KHQ, it was strongly implied that the local sheriff had been confiscating stills and then reselling them at a very low price, thus allowing other "moonshiners" to start up cheaply. Miles, the sheriff, brought suit against the radio station, the announcer, and the author of the defamatory passage. The Washington court, in awarding the decision to the plaintiff, quoted approvingly the principles declared in Sorenson v. Wood and added: It seems to us that there is a close analogy between the words spoken over the radio station and libelous words contained in a paid advertisement in a news- paper. The owner of the station furnished the means by which the defamatory words could he spoken to thousands of people.2 The third suit of importance on the question of defamation is that of Coffey v. Midland Broadcasting Co. i In this case the Midland Broadcasting Co., owning Station KMBC, had broadcast defamatory remarks against Coffey. KMBC was an outlet for the Columbia Broadcasting System and had broadcast these remarks as part of a chain program sponsored by Remington Rand, Inc. The defamatory remarks had been spoken into the microphone in New York by an employee of Remington Rand, Inc., and carried over telephone circuit to KMBC, from where they had been sent out over the air. All three participants in the program were sued. This suit was also decided in favor of the plaintiff. This decision carried the case one step further than Sorenson v. Wood and Miles v. Wasmer and placed the liability on the outlet chain station-or rebroadcaster-as well as on the station where the defamatory remark originated. There is a legal tendency to establish a distinction between broadcasts which are extemporaneous and those in which the speaker reads from a script (reading aloud has been considered libel since 1610). The most apparently unjust eases of liability are those that result when a speaker to whom air time has been rented departs from the previously submitted and approved script and utters defamatory remarks. It would seem that a radio station should be protected if due care is used, but this doctrine can be invoked only when the courts depart from the application of libel and slander to broadcast defamation and this they have not seen fit to do. As to remarks uttered by a party who is speaking extemporaneously or ad-libbing if defamatory remarks are made, whether they are true or not, the station's liability seems definite, for, say the courts, the station is negligent in not having demanded a script to be examined before the broadcast. Absolute liability, based upon the same reasoning, also follows when defamation overlooked by the station is included in a previously submitted script. In those programs which are essentially impromptu, such as current events, sporting contests, parades, etc., the station's liability also exists. The sponsor of a commercial broadcast is liable, as are each and every other person and station which participated in the defamatory broadcast.' One of the difficulties in prosecuting a defamation action, as shown in the Boake Carter case, is to effect service on the proper parties. In this case the broadcast was heard in New Jersey and the plaintiff attempted to sue jointly a nonresident news commentator, a nonresident sponsor, and a nonresident network system, all of whom were domiciled in different states. The plaintiff would have to sue only certain defendants or start a suit against each separately. The so-called rules of privilege and fair comment are important in political campaigns. A statement must be recognized as comment and not a statement of fact. Criticisms may, under these rules, be made of authors and their works, composers, public officials, candidates for public office, and other persons in the public eye. Such broadcasts, however, must not go beyond the limits of criticism and opinion by attacking the motives or character of such persons. In addition to the court decisions declaring defamatory remarks over the radio to be libel, four states (California, Illinois, North Dakota, and Oregon) have statutory provisions that do this.
A number of years ago, in a case having nothing to do with radio, that of Herbert v. Shanley Co.' the Supreme Court decided that a performance of a musical composition or any other copyrighted article was a performance within the meaning of the law so long as it was performed with the purpose of gaining sonne profit, whether that profit was gained directly or indirectly. The first case concerning the violation of the copyright laws by a radio station was that of Witmark v. Bamberger2 in 1923. In that case the court decided that the broadcast of a copyrighted song by a radio station constituted a public performance for profit. In 1924, Jerome H. Remick & Co. brought suit against the American Automobile Accessories Co.3 for using its copyrighted songs, unauthorized, over the air. In this case the musician was an employee of the station, which was owned by the defendant. The court held that broadcasting a copyrighted musical composition by an artist employed by the broadcaster was an infringement of the copyright laws "where the purpose was to stimulate the sale of radio products." . In 1926, in the case of Remick & Co. v. General Electric Co.,' the application of the copyright laws to radio was carried still further. In this case the court decided that the station was liable even if the performer was not an employee of the station, that is, the station was liable on the ground of contributory infringement, it having contributed to the performance by transmitting the composition over the air. The most important and significant decision, however, in the realm of copyright laws and the radio was that of Buck et al. v. Jewell -LaSalle Realty Co.,' decided in 1931. The defendant in this case was the owner of a hotel that had installed radio loud -speakers in all its guest rooms. These loud -speakers were connected with a master receiving set in the hotel. This master set picked up the broadcast of a radio program on which were broadcast compositions whose copyrights were owned by the American Society of Composers, Authors, and Publishers. The radio station had not been authorized to broadcast these compositions; and Buck, acting for the ASCAP, had repeatedly warned the radio station against doing this and had also warned the hotel against distributing the programs over its loud -speaker system. When the broadcasts continued, Buck brought the action. In a historic decision, the Supreme Court of the United States held that: The acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set, and loudspeakers installed in his hotel and under his control, and for the entertainment of his guests, the hearing of a copyrighted musical composition which had been broadcast from the radio transmitting station constituted a performance of such composition within the meaning of the copyright laws. It is on this case of Buck v. Jewell -LaSalle Realty Co. that the ASCAP bases its present policy of control over the copyrights that it holds on musical compositions. The American Society of Composers, Authors, and Publishers is an unincorporated organization made up of music composers and a certain number of music -publishing houses. The individual members and publishers in this voluntary society own the copyrights and merely assign the performing rights to the society. The society negotiates for the sale of licenses to use the music and takes care of the collection of fees and other details of making available to orchestras and other performers, including radio stations, the music held by the society's members. The American Society of Composers, Authors, and Publishers has worked out a price scale that has proved, in the main, satisfactory to all concerned. 'The amount of the royalties, or license fees paid, is based upon such factors as the wattage of the radio station, the surrounding population of the city where the station is located, and the extent to which the broadcasting station commercializes its facilities in selling commercial advertising programs, and subject to restrictions as to certain song numbers. The fee is usually for a blanket license. All non-commercial educational, municipal, and religious stations enjoy complimentary licenses fromASCAP, and have used this music royalty free for years; even those educational institutions not owning their own stations but broadcasting over commercial stations are licensed free by ASCAP. If such stations are affiliated with BMI instead of ASCAP, they generally refuse to carry the ASCAP selections despite these educational privileges. BMI also grants privileges to educational institutions. Since 1936 broadcasters have been revolting against the charges assessed against them by ASCAP for the privilege of playing copyrighted music. 'In 1936 the use of such selections was prohibited. The Duffy Copyright Bill introduced in Congress and the antitrust case against ASCAP were steps in this revolt. In 1941 consent decrees were filed by both ASCAP and BMI, in which they agreed to conform to the government's demands. In 1940 the broadcasters formed BMI (Broadcast Music, Incorporated) to compose and arrange music for radio performances. Program logs revealed that while 21,000 pieces from the catalogues of popular music and 4.100 from standard numbers were broadcast in a single year, only 388 tunes actually accounted for 47 per cent of the performances and 2500 pieces made up 83 per cent of the music on the air. The broadcasters insist that the monopoly of ASCAP will be ended by BMI, to which a large majority of them have subscribed. The purpose behind such centralized authority as ASCAP, BMI, MPPA (Music Publishers Protective Association), and SESAC is excellent, for it obviates the necessity of dealing with individual copyright holders. To constitute an infringement of a copyright in a musical selection, three elements must exist: (1) there must be a performance, (2) it must be public, and (3) it must be for profit, either direct or indirect.' Any substantial portion of a selection constitutes a violation of the copyright. This is generally accepted as being over four bars of a musical number. The common-law copyright applies to music. The remedies for infringement of copyright are: injunction, recapture of profits, and damages for the infringement.
Statutory Protection. Article One, Section Eight, of the United States Constitution provides that Congress shall have the power: "To promote the progress of science and useful arts by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries." This grant of power to Congress did not divest the several states of jurisdiction to grant authors judicial protection at common law of literary and intellectual property, but copyright was thereby placed in the domain of Congress exclusively, so that the states now have no power to pass substantive legislation in this field. In 1790 the first Federal copyright statute was enacted. In 1831 a revised and consolidated statute was passed, which for the first time granted protection to authors and composers of musical compositions. In 1856 a supplementary act was passed which enlarged the scope of copyright protection to dramatic work by granting to the authors thereof the exclusive rights to perform, act, or represent such works, in addition to the then existing and now existing sole right to print and sell copies. In later statutes other creative works became the subject of copyright protection. The need for an international arrangement for copyright reciprocity became apparent and led to the enactment in 1891 of appropriate legislation. After that date no important changes occurred until the 1909 act, which is still in force. The first United States copyright act provided for a period of protection for fourteen years and a renewal period of the same duration. By the Act of February 3, 1831, the original period of protection was extended to twenty-eight years, but the renewal period of fourteen years was not changed. Under the Act of 1909 a period of twenty-eight years of original protection was granted and a renewal period of the same length was permitted, provided that the application for such renewal should be made to the Copyright Office and duly registered therein one year prior to the expiration of the original term of copyright. The periods for such protection run from the earliest date when the first copy of the best edition is placed on sale. In the case of default of renewal or failure to renew from any other cause, the work falls into public domain. If such renewal is made according to the legal requirements, the work falls into the public domain at the end of the renewal period. A work which was copyrighted previous to the 1909 act, it would seem, should have a renewal period of only fourteen years because that period was allowed at the time the original copyright was taken out. However, according to Silverman v. Sunrise Picture Corporation' and Southern Music Publishing (`o., v. Bibo-Lang, Inc.,2 a renewal of copyright is a new grant of copyright, and the rights which accure to the owner of such a renewed copyright are the rights granted under the provisions of the law which is in effect at the date of the commencement of the renewal term. The renewal of a copyright depends upon the validity of the original copyright, although it is considered as a new grant of copyright.' A renewal may be obtained by the author, by anyone to whom he has sold his copyright privilege, by an employer for whom the work was made for hire and who secured the original copyright, or by the author's heirs or administrators. However, the proprietor of a literary work cannot tinder any circumstances have a greater right than the author. The contract between the two should always definitely state the rights which the proprietor is to enjoy. Under this act an employer of an author who is hired not as an independent contractor, but on a stated salary basis, is considered the author thereof and is himself entitled to a copyright of the work in question. For instance, those employed by a radio station to write scripts ordinarily have no copyright privilege in what they write, but the copyright lies in their employer. However, the mere fact that the author is an employee does not necessitate the conclusion that the copyright privilege to all said author shall produce shall be in his employer, the determinate being the intent of the parties with the presumption in favor of the employer, unless the author -employee is a so-called independent contractor, in which case the presumption rests upon the side of the employee. An author employed to write a series of scripts or a serial for a sponsor, an author employed by an advertising agency, broadcasting station, or network to produce scripts, a gag writer who originates jokes for a comedian-in each of these cases the author has no copyright privileges in what he produces unless his contract with his employer so specifies. The copyright lies in the employer. If, on the other hand, the author is considered to be an independent contractor not directly in the employ for the purpose of writing, the copyright exists in him. It is very hard to differentiate at times as to whether the author is an employee or an independent contractor. The most logical rule was laid by the New York Court of Appeals in Beach v. Velsey, where it was ruled, "The test as to whether an author is an employee or an independent contractor lies in the extent of the control and the amount of direction of detail and etc., that the so-called or alleged employer exercises over the progress of the work." It is usually said that if the producer contracts for the script itself and says nothing more about it, the script writer is an independent contractor, but if the author is dominated throughout the process of completing the work, the author is usually said to be an employee. Section 11 of the Act of 1909 expressly extends copyright protection to designated works of which copies are not produced for sale. Among the specified classes of work are various types of material for broadcast purposes, including lectures and addresses, dramatic anti musical compositions. Under treaty regulations, benefits of copyrights on substantially the same basis as those granted to citizens of this country are extended to approximately fifty nations, the first agreement having been made with Belgium, France, Great Britain, the British Possessions, and Switzerland in 1891 and the most recent with Argentina in 1934. The broadcast program script is a comparatively new form of literary expression and it is still a controversial matter as to whether the entire program script may be copyrighted as such, or whether it needs to be copyrighted in parts. In the vernacular of the radio industry the two terms "script" and "continuity" are often used interchangeably. However, the law seems to make the following distinction between the two. A script is material prepared for performers, announcers, speakers, and others whose voices are broadcast and who must have before them in written form the words they intend to use in the broadcast. Continuity, on the other hand, is more like a timetable or a chronological development of the contents of the program. A continuity is necessary in order to plan and control the use of the time within the broadcast period. The continuity is the shell of the program and the script the substance thereof. A single program, therefore, may be composed of many scripts, those of the announcers, the actors, and so on. In determining whether a broadcast script, may be copyrighted, it is necessary to make a detailed analysis of it; although the Copyright Act was passed before the radio industry came into being, Section Five of the act specifies with some generality what works may secure copyright protection, and although, of course, the broadcast script is not specifically mentioned, such script may secure protection under the general classification therein. Of course those scripts which are not published are protected at common law. Authors of scripts embodying lectures, addresses, and so forth, may obtain statutory protection under Section Five -C, which provides parenthetically for registration of works prepared for oral delivery. Continuity is the sum total of all materials and scripts in a specified program. If such continuity is coextensive with a complete dramatic program, it may be separately registered and receive copyright protection. However, to be eligible for protection, continuity and scripts must have unity. This is a question of fact to be decided by a jury.' If a script is copyrighted as a dramatic composition, the copyright owner has the exclusive right to make other forms or dramatizations thereof or to convert his work into a novel or other known dramatic compositions. If the script or continuity is sold outright, this includes all the rights which the author had. It is advisable, however, in the sale or the purchase of such material, to specify definitely what rights are transferred. If a script is registered for copyright as a dramatic work, it may not be broadcast without the consent of the copyright owner. Broadcasting is a public performance despite the fact that broadcasts are not publications under common law. It makes no difference whether such a broadcast is for profit or is merely a sustaining program, such a broadcast would violate the copyright privileges and both civil and criminal proceedings may be instituted in such a case.' If the author has transferred all his rights in the script to the producer, it may be changed or altered in any way, except that it may not be distorted to the extent that it will injure the reputation of the original author. The grant of the right by an author to use a script in one particular broadcast program does not give the producer the right to use it in any other broadcast program. If a statutory copyright is to be obtained, the author, his assignee, or employer should write to the Library of Congress, Copyright Office, Washington, D.C., and request form 12. This application form lists the various types of creative effort for which copyright may be obtained and enumerates the forms that must be filled out to obtain final copyright. When the application has been forwarded to the Library of Congress, another form is obtained to be filled out for the type of material on which a copyright is desired. This is returned with a specified number of copies of the first and best publication, together with the specified amount. The act provides that the registrar of a copyright shall receive, and the author or owner of the copyright shall pay, the following fees. If a play is to be copyrighted and to be published, it is necessary to send two copies of the play, together with $Q, to the Copyright Office. If statutory protection is desired for a speech which is not to be published, the registration requires only one copy and costs only $1. No attempt is made on the part of the Copyright Office to scrutinize the work, except to ascertain that it complies with the laws prohibiting the publication of obscene matter, etc. Infringement of a copyright exists where the defendant has appropriated copyrightable material. Once such appropriation is thoroughly established, a question of fact exists for the jury in determining whether a substantial and material portion of the plaintiff's work has been appropriated. The whole work need not be appropriated; it is sufficient that the labors of the author be substantially appropriated by another.
The idea of the work or, as it is customarily termed, plot, is not copyrightable, but where the expression of the fundamental theme is appropriated infringement takes place.' The result of the action and not the intention of the actor is the thing that determines the question of infringement. Where the infringement of a copyright is established, intent is immaterial.' If the infringement is proved, the intent to infringe will be presumed; nor does the infringing act need to be for profit. In a few limited instances a copyrighted work may be used without constituting an infringement. It was held in Chapel & Co. v. Field that the imitation, mimicry, or parodying of a copyrighted work is a fair use thereof. However, it is essential that good faith serve as a basis for the imitation and that due acknowledgement be made to the author or to the copyright proprietor. While damage awards under the statute are controlled under detailed regulations, it will suffice to say that in addition to injunction relief from infringement, the author is also entitled to damages and all profits derived from said infringement. According to Section 35 of the Act of 1909, damages for such infringements must be assessed by the court of not less than $250 nor more than $5000. Under existing copyright laws, the scope of copyright protection to both dramatic and musical compositions and the exclusive right to produce such work mechanically is vested in the copyright holder. The right of recording or transcribing a copyright program script for broadcast purposes exists in the name of the copyright holder only. However, works in the public domain may be freely transcribed, modified, or transformed with impunity. Care should be observed, however, that a copyright arrangement of a public -domain tune is not used. In checking the availability of a selection, one must know the author, composer, publisher, and arrangement. According to this ruling, it is a violation of the copyright to record a broadcast program, picking it up from the receiving set, or to rebroadcast such a program, to send such a program over telephone or electric -light wires, or to present it over public-address equipment or upon a television screen in a theater. Copyright runs from the time when the first publication is made of a work to the end of the original copyright period, plus the renewal period, if such renewal is obtained. If a compiler at the present time gathers into a single book a large number of short stories or plays and obtains a copyright for the compilation, he does not extend the copyright period of any one of the plays or stories contained in the book. His copy- right is upon the compilation, the collection, rather than upon the individual contents of the book. It is safe to assume that anything written fifty-six years ago is in the public domain and may be used or adapted with impunity. Otherwise the consent of the copyright holder should be obtained before adapting or using such material. Well-known authors retain legal agents to check up on radio violations of their copyrights. The minimum civil damages for use of copyright material without a release from the holder is set at $250 with a maximum of $5000, with additional fines for criminal infringement of not less than $100 nor more than $1000. There has been some difference in judicial opinion as to whether the copyright law, which specifically lists "a lecture, sermon, address or similar productions, a drama or musical composition," applies also to poems and dramatizations of short stories and novels. One court has held that the recitation of a poem did not constitute a violation; however, the tendency is toward a liberal construction of the copyright law to entitle the creator "to any lawful use of his property whereby he may get a profit from it." The copyright holder is put to the expense of protecting his rights and many broadcasters take chances on the presentation of poetry, feeling that the poet either appreciates the public presentation of his poems or is too poor to protect his rights. In the United States it is impossible to copyright an idea, character, or title of a work.' However, the infringement of such ideas, characters, and titles or trade may give rise to a right of action. Broadcasting organizations are frequently confronted with claims of infringement of titles of programs, characters in programs, and the infringement of ideas claimed to have originated by some other person. It usually develops, however, that the other person's idea was not original. An interesting question was brought to the courts in the case of Brown v. L. Bamberger & Co.' The question is a serious one and is as follows: When an author is engaged to write dramatic sketches for radio presentation and that author originates the idea on which the sketch is based, creates the characters, and names them, and is later discharged, can he restrain the broadcasting organization from continuing with the same type of sketch under the same title, using the identical characters? In this case, the author's motion for a temporary injunction was denied by the court, apparently on the theory that there was no unfair competition at that time. The complaint was not dismissed, however, for the reason that the author might still be able to prove that his ideas and characters had been infringed.
The reluctance of broadcasters to pay for copyrighted material during the early stages of broadcasting in the United States was due to the large fees demanded rather than to any denial of the right of copyright. After the broadcasters began to "sell time" on the air, they were then willing to pay for the use of copyrighted material. Most radio -station and educational broadcasters possess recording equipment and in some instances desire to make recordings for public sale. The law provides that the copyright holder of a musical selection such as a college song or march may license a manufacturer of recordings to record his selection and file notice of this license in the Copyright Office. Thereafter any other person can make recordings of the selection upon serving notice upon the copyright holder and upon paying him 2 cents for each record manufactured. Until the copyright holder has granted such an initial license no recording can be made without his consent. However, the copyright on a musical selection does not prevent the recording of adaptations and arrangements of that selection. The right to public performance of such recordings requires the consent of the copyright holder. It is dangerous to cut records of a broadcast from the air unless permission is first obtained from the holder of copyrighted selections being performed. The American Society of Composers, Authors, and Publishers sponsors the Nathan Burkan Memorial Competition among law students who submit essays on copyright law. The most recent volume was published by ASCAP in 1940. More complete articles on copyright regulations are printed in the annual yearbooks of Broadcasting Magazine and Variety. The most comprehensive work on radio law is The Law of Radio Broadcasting by A. Walter Socolow, Baker Voorhis & Co., New York, 1938 (2 vols.).
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