Music Clearances Still an Unfinished Business for Sports Broadcasting

Music in sports broadcasting, covered in a report by SVG last month, is a growth industry — BusinessDegreeOnline, a Website that aggregates online undergraduate degree programs, lists more than 500 schools offering combined music and sports-business programs. However, music licenses and performance royalties may be getting short shrift.

According to Chris Woods, EVP/COO of TuneSat, an online service that tracks music performances on television and the Internet on behalf of content-owner clients, as much as 80% of music used on television, including on sports broadcasts, is not properly reported or logged.

“We’ve conducted studies on exactly this, and there are huge discrepancies” between the music that is played on broadcast and what is reported to performing-rights organizations (PROs) like BMI and ASCAP, which pay composers and other copyright participants for performances, says Woods, a composer of music that has been used by Fox Sports, Versus, and Big Ten. “It’s been a mostly manual reporting process up to this point, which was fine when there were just three networks but not when there are hundreds of networks.”

TuneSat uses a proprietary digital audio-fingerprint identification technology — what he calls “Shazam on steroids,” a reference to the popular iPhone app that lets consumers learn the names of songs they hear by holding the phone up to the source — to determine which of its clients’ music is being used on sports and other broadcasts. TuneSat’s more sophisticated identification app compares its findings with clients’ PRO statements to search for discrepancies. “It’s a global problem,” he says.

Sports music in particular is a problem, according to Woods, because of extensive and sometimes errant application of what’s known as an “ephemeral” use of copyrighted material, which does not require a broadcaster or content producer to secure a sync license prior to air for a piece of music used in a live broadcast that does not include any prerecorded packages and will not be recorded for later reuse. Woods points out that many broadcasters do use music in prerecorded segments used in live broadcasts, such as news segments created in advance of air or player bios aired during breaks in games in what he says is a misapplication of the ephemeral license, not unlike the assertion of fair use in editorial venues of copyrighted material.

Jennifer Falco, director of licensing at copyright-administration company Words and Music in Nashville, says ephemeral use is a gray area of copyright: “It’s often used as a loophole.”

The practice is widespread and relatively rarely policed, Woods agrees, but it is an infringement nonetheless when material used in a live broadcast is later rebroadcast or posted on the Internet with the ephemeral-use content still intact.

“It’s often the case that live broadcasts are re-aired, which may not be covered under the ephemeral-use exception in the Copyright Act,” he says. “It’s worth noting that these ephemeral uses still need to be reported to the performing-rights societies. The record of enforcement is abysmal across all types of broadcasts,” he says. “But it’s nearly impossible to do a report that’s complete and accurate, because it’s still done mainly by hand.”

Woods says TuneSat will help change that by tracking these uses and allows both writers to monitor these broadcasts and allows broadcasters to properly report them. He co-founded the company in 2007 with partner Scott Schreer to create a tool that would detect the use of music played underneath and obscured by other sound elements, such as voice-overs and sound effects — environments often referred to as “dirty audio.” The company now monitors broadcasts in the U.S. and Europe and added, in January, an Internet-based service that searches for music files embedded in such formats as QuickTime and Flash.

According to Woods, NBC Sports will use TuneSat to track music use during the upcoming London Olympics. In fact, he says, the technology grew out of a cue-sheet reporting system developed by Schreer for NBC in 1996, initially using watermark technology to automate the music-cue-sheet reporting process for content created for NBC Sports and the Olympics.

Woods says that searches and monitoring like those commissioned by his clients could result in better self-policing by broadcast in general. However, he concedes, lack of proper licensing is deeply ingrained in the broadcast culture and will take time to correct. “It’s pretty widespread.”