Today's LTAR

["A. Joseph Ross" <lawyer@world.std.com>]

This morning on LTAR, Donna asked that the lawyers in the audience 
(There's another besides me?) comment on a matter of CBS allegedly sending 
a cease and desist letter to someone for having an old Howard Stern 
aircheck from his WNTN days on a Website.

I'm always a little reluctant to mouth off when I don't know very much of 
the facts.  So the following is to be taken as speculation and ruminating, 
not a legal opinion.

There are generally two forms of intellectual property involved in 
broadcasting:  copyrights and trademarks.  The aircheck, as a creation, is 
subject to copyright.  Who owns it depends mainly on contractual 
arrangements between Howard Stern and his various employers.  My guess is 
that any contractual arrangements between Stern and WNTN gave WNTN 
ownership of anything that Stern broadcast.  Stern probably wasn't enough 
of a big shot in those days to have been able to negotiate anything else.

If Stern did have ownership of his WNTN broadcasts, he may have signed 
them over to CBS or appointed CBS to protect them.  Or, CBS might possibly 
have purchased those rights from WNTN.  I think either of these 
possibilities is unlikely, but I have no actual knowledge of any of the 
contractual arrangements, so I can't really say it's impossible.

If the ownership remained with the then-owners of WNTN, who owns it now 
depends on the contractual arrangements between that owner and its 
successor, as well as later contracts between each later owner in turn and 
its successor.  Did the next owner buy the license and station with or 
without the station's intellectual property?  Again, I don't know.  
Perhaps there are people out there more familiar than I am with the most 
common arrangements when stations are sold, but my best guess is that the 
current owners of WNTN most likely own the station's past intellectual 
property.

However, if any of the past owners of WNTN went into bankruptcy, that may 
be different.  The intellectual property would have been an asset of the 
bankrupt corporation, which would have passed to the bankruptcy trustee 
and might have been sold separately as part of the bankruptcy proceedings. 
 Or perhaps it might not have been sold separately, if the trustee didn't 
think it had any value worth spending the money to hold a sale, except as 
part of the sale of the station itself.  Bob:  When you bought 740, did 
you get any of the station's prior intellectual property?

So it seems to me most likely that WNTN, or the successor in interest of 
some prior owner of WNTN, owns the copyright in the station's airchecks.  
It seems to me rather unlikely that CBS owns it.

But then there's trademarks.  CBS probably has Howard Stern's name 
registered as a trademark.  As such, it can prevent others from using the 
trademark.  And that may be where it gets the right to stop a Website from 
using an old Howard Stern aircheck.

What's more, since the validity of a trademark depends on usage, it may be 
that CBS is afraid that if it allows others to use the Howard Stern 
trademark, it will lose the right.  This has happened in the past, when 
words which were once trademarks, such as "aspirin" and "cellophane," 
entered the language to the point where the trademark was lost.  Large 
companies spend quite a bit of money going after people who use words like 
"Jell-O," "Wite-Out,"  "Kleanex," and "Xerox" as generic terms.  So CBS 
may have been advised by its lawyers that it must send cease and desist 
letters of this sort, whether it wants to or not.

(Incidentally, a good example of the use of trademarks to maintain control 
over a product involves Sherlock Holmes.  Copyrights have long ago expired 
on Conan Doyle's stories, but his estate continues to have the name 
registered as a trade mark in various contries.  So anyone else who tries 
to use the Sherlock Holmes characters hears from the Conan Doyle estate.)

As for the old WJIB bells, the trade mark has undoubtedly expired at this 
point.  So Bob could use bells, but he'd have to make his own new 
recording of bells.  If he used the actual recording that had been used by 
the old WJIB, he might hear from whoever made that recording, or whoever 
owns the copyright on that recording.


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 A. Joseph Ross, J.D.                        617.367.0468
 15 Court Square                     lawyer@world.std.com
 Boston, MA 02108-2503      http://world.std.com/~lawyer/
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