Whatcha’ doin’ at the Courthouse? Protecting a trademark may be the answer, if mimicry and freely borrowing ideas from another radio station or a syndicated program is judged to have gone too far. What recourse does a radio station have if it feels a fun bit has been stolen by another party? It depends, says a Garvey Schubert Barer attorney who discussed a possible litigation situation in an exclusive interview with RBR+TVBR.
On Monday (5/1), The Morning Mix at CBS Radio‘s Hot AC KHMX-FM 96.5 in Houston will see hosts Sarah Pepper, Geoff Sheen and Lauren Kelly bring back the feature “Whatcha doin’ at the Courthouse?” after being absent for “the past few months.”
The bit’s return caught the attention of RBR+TVBR, as the Premiere Networks-syndicated Brooke and Jubal, the highly popular duo who helm the morning shift at Hubbard Radio‘s top-rated CHR/Pop KQMV-FM “Movin’ 99.7” in Seattle, have seen success with a bit called … “Whatcha Doing at the Courthouse?”
The below audio is how Brooke and Jubal have been delivering the bit to listeners in Seattle; it is similar to how the syndicated hosts present it to listeners across the U.S.:
Asked if KHMX was able to air the bit as it is not trademarked or licensed by Hubbard Radio, Premiere Networks, or Brooke and Jubal, CBS Radio/Houston Marketing & Promotions Manager Tracy Wilksinson said that was correct.
KQMV GM Marc Kaye was not available for comment by RBR+TVBR‘s deadline. A request for comment to Brooke and Jubal producer Chris Brothers was also not returned by deadline.
While it is not known if the return of the bit to KHMX is the result of litigation, the use of “Whatcha Doing at the Courthouse?” by the CBS Radio station’s morning show does bring up the question of copyright enforcement — and what resource, if any, a program or radio station owner has to protect its creation.
Judy Endejan, a Seattle-based attorney with Garvey Schubert Barer who is familiar with Brooke and Jubal but is not their legal counsel, says protecting a morning show bit is difficult.
“You have state rights, in addition to Federal rights, under the Copyright Law,” Endejan explains. “The problem is that you can’t sue to enforce a copyright because you have to register it to be eligible for statutory damages, under the Copyright Law. Brooke and Jubal should have registered the trademark with the Federal office.”
But, they did, Hubbard Radio confirms. In fact, the trademark symbol is clearly visible on a Movin 92.5 website page devoted to the bit.
Other Brooke and Jubal show bits and features are trademarked, including the well-received “Second Date Update,” the “Loser Line,” and “Laser Stories,” featuring offbeat news stories and a corny laser sound effect.
Thus, it is unclear as to whether the “Whatcha Doing at the Courthouse?” trademark is enforceable in the state of Texas. It is also possible that KHMX is able to air the bit with permission, and payment, to Hubbard Radio, as Brooke and Jubal are not heard in the market, thanks to a legal settlement between Hubbard and CBS Radio.
AN INDUSTRY LONG ON IDEA INCORPORATION
A great bit, or theme, has long been fair game for radio station owners and air personalities. In the 1960s, there were so many “Magic Christians” that one resorted to referring to himself as “The Major Market Magic Christian.” With the success of Robert W. Morgan came “Roger W. Morgan.” In the early 1980s, the “Morning Zoo” spread like wildfire across the U.S. after Scott Shannon took WHTZ-FM “Z100” in New York to No. 1 fall 1983.
Radio’s great Xerox machine has been in operation for some 50 years.
From a copyright perspective, slightly different wording will make copyright protection a bit difficult. “The language can be so generic that it can’t be copyrightable,” Endejan notes.
Then, there is the question of risk. “What is the risk if it is impacting listening in one market, and not in another market?”
That’s a crucial question in the “Courthouse” bit case, as the closest station to Houston airing Brooke and Jubal is Alpha Media’s KTFM-FM 94.1 in San Antonio.
If a radio company’s C-Suite does believe there is need for legal action, as another show may have outright stolen material it believes it owns, Endejan points to the Lanham Act, a Federal law attorneys would rely on to establish trademark ownership.
“You could sue for unfair competition,” Endejan says. “But, the problem is there is no competition if a station in one market uses something heard in a different market. This sort of thing happens quite frequently. And, unfortunately, it’s an accepted practice.”
RBR + TVBR