DC Circuit Vacates Copyright Royalty Board Allocation for Religious Cable Broadcasts
The U.S. Court of Appeals for the D.C. Circuit partially affirmed and partially overturned a 2013 Copyright Royalty Board decision that gave the Billy Graham Evangelistic Association (BGEA) and 22 other religious ministries that own copyrights on devotional TV programming…
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59 percent to 62.86 percent of royalties for cable programming aired between 2000 and 2003. The CRB had ruled that the Independent Producers Group would receive 37.14 percent to 41.02 percent of royalties. The religious ministries had argued that they should receive full royalties on the programming because IPG had no “valid, compensable claims” within the devotional programming category. IPG proposed they receive 37.3 percent to 53.1 percent of royalties. The religious groups objected to IPG’s claim to represent several of the ministries, saying BGEA revoked IPG’s agreements for 2002 and 2003. The three-judge D.C. Circuit panel -- Judges Janice Brown, Brett Kavanaugh and Patricia Millett -- vacated the CRB’s ultimate royalty allocation Friday, ruling it “was arbitrary and capricious” since the royalty judges had rejected the allocations proposed by both the ministries and IPG. “Settling royalty distributions by agreement reflects a separate avenue for resolving royalty distributions under the Copyright Act, subject to its own requirements,” Millett said in the court’s opinion. “In this case, any intersection of the two parties’ numbers was the product of accident, not agreement.” The CRB must now re-examine the royalty allocations, the court ruled. The D.C. Circuit also said, however, the CRB “reasonably determined” that IPG had authority to represent four of the claimant ministries and “reasonably declined” consideration of the ministries’ claim for full royalties. The ministries are generally pleased with the D.C. Circuit’s ruling, said Pillsbury Winthrop lawyer Matthew MacLean, who represented the ministries in the case. The ministries are confident the CRB will re-examine the royalties allocation based on evidence instead of “simply splitting the baby,” MacLean said. The IPG takes issue with the D.C. Circuit’s vacation of the existing CRB royalties allocation because the court appeared to suggest the IPG’s allocation methodology was “100 percent worthless,” said Pick & Boydston lawyer Brian Boydston. The CRB in reality was critical of the IPG methodology but didn’t completely discount it, he said. The D.C. Circuit “could have reached a different decision if it saw it that way,” Boydston said. “I’ll be curious to see what the CRB judges have in mind.”