Payola: Should Internet Radio Stations Be Able to Accept Pay for Play While Over-the-Air Stations are Statutorily Precluded?

by Jennifer I. Swirsky, Candidate for JD, Nova Southeastern University, Shepard Broad Law Center, swirskyj@nsu.law.nova.edu

The Legal History of Payola

The first introduction of legal retribution for accepting payola was in the sixties when a man was indicted for accepting money to play an artist’s music.[1] Subsequent to his indictment, a statute was passed making it a misdemeanor to engage in the activity of accepting payola, punishable “by up to $10,000 in fines and one year in prison.”[2]

By Brooke A. Wiener, J.D.
West Palm Beach, FL

The Court of Appeals for the 7th Circuit has affirmed, in an antitrust case, that the exclusive licensing of all professional football teams marks to one vendor is not a violation of the Sherman Act.

NFL Properties is an unincorporated organization of 32 separately owned teams. Each team owns its own trademarks - team names, logos, slogans, etc. In 1963, the NFL created NFL Properties, Inc., a corporate entity to (1) develop, license, and market intellectual property that the teams owned, such as their logos and trademarks; and (2) "conduct and engage in advertising campaigns and ventures on behalf of the NFL and [its] member teams."

Law students who have interests in entertainment, arts and/or sports law and who are members of the EASL Section are invited to submit articles for publication. This initiative is unique, as it grants students the opportunity to be published and gain exposure in these highly competitive areas of practice. The EASL website has wide national distribution.

Film Florida is actively engaged in helping craft 2009 legislation that will impact our state's film incentives. We encourage you to visit Film Florida's website at www.FilminFlorida.com. We encourage you to visit Film Florida's website often for the latest news on the incentive process, and its upcoming Rally in Tally March 18-20. Please keep communicating with your legislators!

Latest updates:

Governor Charlie Crist unveiled his 2009-2010 budget on February 20, 2009. Among the Governor's listed priorties in the highlights of his budget is the Florida Film Industry, utilizing figures derived from the Haas Study of the Florida Film and Entertainment Industry. The Governor's budget proposes an appropriation of $10 Million. This does not indicate an unwillingness of the Governor to support a tax credit. Film Florida is fully in support of HB47/SB350, calling for a tax credit based film and entertainment incentive. Film Florida will continue to work with leadership to make this position clear. To review the highlights from the Governor's budget, click here.

The State of California on Thursday, February 19, facing a $42 Billion state budget shortfall, passed a five year $500 Million Film Incentive as part of an economic stimulus package. Dubbed the "Ugly Betty" incentive, it is designed to convince film and television productions outside of California to return to the state. With Michigan, another state facing great economic upheaval, looking to maintain or enhance their already aggressive incentive, this once again shows how vital and necessary our industry is to Florida's economy and how we simply must keep pressing our legislators to act boldly and quickly. To read more about this development, click here.

Please review the Executive Summary for the Haas Study of the Florida Film and Entertainment Industry. It was to be released in conjunction with last week's cancelled roundtable with the Governor. Film Florida will be distributing it more widely and "officially" over the next week. The fiscal impact numbers look very good and should help provide a more complete picture that can augment the recent impact conference scoring of HB43/SB312 and HB47/SB350. Dr. Rick Harper, the lead researcher, has agreed to provide additional clarification or testimony as needed. Click here to view the full study at Film Florida's website.