For as long as the term digital signage has been out there, end-users have been asking suppliers about the ability to insert live TV in a zone on the screen. And for just as long, there have been many questions and few solid answers as to whether it was entirely legal.
I’m not sure we’re any further ahead in 2016, but I’ll happily accept any insights or experiences offered to help add some clarity.
Briefly, the central issue is whether using live TV in a commercial signage application, with a license or approval from the original content source (the broadcaster or production firm) is on the right side of copyright laws – particularly if the signage display is showing advertising or promotional messages based on that TV broadcast attracting viewers.
Before I try to dig into this a bit, let me STRESS in all caps that this post constitutes observations and not advice. To get anything conclusive or entirely useful, lawyers are needed, notably ones who know a lot about broadcast technologies and copyrights.
And the questions would also need to be specific to a geography, as what’s OK here might not be OK across a state line, order or ocean.
What’s Being Done
Most typically, you’ll see screens here, there and everywhere with multiple content zones with the time, weather, news tickers, branding and a big central area that has live TV inserted in there. For some businesses, they just do all that to entertain customers as they wait. For others, though, that TV window is live so that the screen is visually “sticky” and viewer attention will hopefully drift over to an adjacent content zone peddling drink specials in the bar, or the mortgage broker or the ambulance-chaser law firm down the street.
There are technologies out there that do things like squeeze the signal into a smaller area, from full-screen, when the game breaks for commercials, or even swaps out the signal entirely when commercials come on, running local to the venue or third-party spots when the ads are on, and switching back when the game returns.
A company called TVPOS offers live TV ad replacement and explicitly says:
Our technology does not violate any U.S. laws such as DMCA, nor any rules or regulations governed by the FCC. It doesn’t modify, store, decrypt, or rebroadcast a network feed, and, in its simplest form, is merely an automated tool used to switch the input source of the display monitor, in the same way that you would with a remote control.
This technology is intended to enable venues to promote in-house services and products to its own patrons. Television Point of Sales does not recommend or condone the use of our equipment to in any way violate the U.S. Fair Use Doctrine or Copyright law by enabling profit from the sale of ad space to third parties.
Here’s a post from 2007 that tries way back then to look into what TVPOS and another company were doing. The other one had a client in the truck stop business who was nailed for copyright infringement.
There’s also a separate issue, covered recently in a guest post by IAdea’s John Wang, about High-bandwidth Digital Content Protection, or HDCP, on certified media players.
Understanding What’s Allowed
A LOT of digital signage software companies show the capability, and then market as a feature, the ability to insert live TV in a zone of a multi-zone screen layout. They drop in a news, weather or sports channel, with the idea that live TV is something viewers will want to see, and those viewers will therefore see what else is on the screen in adjacent zones.
Is broadcasted content, displayed in public places like bars and waiting rooms, “in the public domain?” Is inserting live TV “fair use” or covered in a current broadcasting contract with a cableco?
“In the public domain” has two meanings that can cause confusion. Something that is viewable in public can be considered in the public domain. However, public domain also has a distinct legal definition. It refers to creations whose copyrights have expired, typically 70 years after the creator’s death. Since most TV programming, particular news and sports, it very recent, it does not meet the legal definition of public domain.
Many business owners don’t understand the full implications of US copyright law and will claim that their broadcasting of a TV stream falls under Fair Use. However, Fair Use is pretty narrowly defined, and comes down to the answers to four questions:
- Is it criticism or commentary?
- Is it for non-profit educational uses?
- Is it a parody?
- How much of the material is used?
Most businesses broadcasting live TV on their displays are not going to meet these requirements.
Writer Rob Lindeboom dug into this in an article on Creative Cow about Fair Use for designers: “If your usage is to create something which is more likely to benefit your own wallet and bank account, the courts will be far less likely to hear and agree with your claim of Fair Use.”
Maybe a school using a broadcast signal like CNN for educational efforts could fall under fair use. Non-profit entities using material for educational purposes generally get flexibility in US copyright law when it comes to Fair Use. However, legal fair use has some restrictions. A broadcast in a classroom might qualify, but it’s likely a digital sign in a cafeteria would not. Additionally, fair use is usually mounted as a defense argument. That means $300/hour for lawyers (and quite possibly a lot more) to argue the point in boardrooms or courts.
The blog Consumerist looked into the idea of live TV in sports bars – maybe full screen, maybe in a zone with an L or Reverse L frame for ads or messages (common in signage). It found all kinds of qualifiers about the maximum size of the sports bar footprint, the size of the displays and how many displays could be running a specific game broadcast at once.
The conventional wisdom has been that while running live TV unlicensed is risky, the chances ESPN or NBC would show up with lawyers and paperwork would be low. But business owners have been sued by content owners throughout the US – a country known to be a wee bit litigious.
Staying on the Safe Side
In theory, to show a broadcast in a digital sign layout, an end-user needs permission from the creator. Permission from specific channels may be hard to acquire or even interpret. Consider what CNN says in its FAQ about whether it allows its broadcasts to be licensed: “Well, maybe. It depends on your usage. Let’s discuss your needs and we can work with you to find the right content, as well as making sure it fits within CNN’s standards and practices.”
“Work with you” is not always – but almost always – code for “we’ll settle on a fee.”
There are commercial packages that cover sharing a TV network in your business, but not a lot of readily available detail on what that covers, and doesn’t.
All that stated, with all the digital signs out there showing live TV in zones, why aren’t there more court cases? Maybe it is OK? Maybe the lawyers at cablecos and networks have far bigger battles to wage? Maybe it will take a very large network pushing the legal boundaries, whatever they are, to trigger actions.
What’s Missing Here
So it’s as murky as ever, it seems. But what’s often missing from the conversation around using live TV on digital signage is the simple question as to why it makes sense to run live TV on a screen. Because it probably doesn’t.
If you have digital signage installed in your showroom, waiting room, lobby, front counter, wherever … there was hopefully an objective or set of objectives established. Maybe the objective was to make customers aware of high-margin or value-added services?
So if that’s the case, why would you put content that’s probably more interesting and engaging than your promotion on the screen at the same time? If you have a money message, why would you provide distractions that will all but guarantee your message will not be as noticed as it could have been, if it was the only message on the screen at the time?
If you think people will notice your drink specials when you squeeze the game signal and add banners to the side and bottom saying Two for One Margaritas on Monday Nights!, think about two things:
- Wouldn’t that message full-screen get far more notice?
- How many fans will find another bar that doesn’t reduce the real estate on their screens to push more drinks and finger foods on them.
Multi-zone layouts rarely make sense for digital signage, yet that capability gets marketed because customers ask for it. Like they ask for live TV.
More of the people in software sales roles need to look across the table or desk at their customers, and say, “That’s not the right approach, based on our experience, and here’s why … ”
The software guys I know generally agree multi-zone layouts and live TV are not great ideas, but in a hyper-competitive market, they’re motivated by closing sales, not doing customer coaching that might stop a deal.
There are exceptions, but for the most part, digital signage doesn’t need TV and shouldn’t have it. It needs to stand as its own medium, and have its own purpose where it gets set up and switched on. Vendors and end-users also don’t need to end up in court.
What Do You Think And Know?
This is one of those issues that’s been around more than a decade, and as noted, doesn’t at least seem to have a lot of guidelines and guardrails. Send me a note or use the comments to add your point of view. I’d also accept guest posts on the topic if they help advance the understanding of the issues.
Dave Haynes is the founder and editor of Sixteen:Nine, an online publication that has followed the digital signage industry for some 14 years. Dave does strategic advisory consulting work for many end-users and vendors, and also writes for many of them. He’s based near Halifax, Nova Scotia, on Canada’s east coast.