PodSafe: Legal considerations for podcasters

Podcasting is nothing new but the format is experiencing a hot moment right now. I'm a fan of podcasts as they help me to digest news, pop culture, history and politics during my daily Brooklyn to Manhattan commute. However, if you’re looking to podcasts as a way to package and deliver content, it’s important you know how to cover yourself legally. While I hope to provide some helpful information here, the best protection comes from consulting an attorney. (No, reading this post doesn’t count as consultation.)

UNDERSTANDING COPYRIGHT

The good thing about navigating the law around podcasts is that it’s not really a new arena. The basic rules of media law that apply to television, radio, newspapers, etc. by and large still apply to podcasts. Copyright law is one of those areas of law and it’s probably the most important consideration for podcasters.

The quick and dirty explanation of copyright is that it’s a “bundle of rights” belonging to the “author” of a “work” of expression. We could parse that sentence out for days (and many textbooks have done just that) but what you really need to know is that from the moment of creation, the author retains the rights to copy, distribute, display, perform, and make derivative works of their original work. They don’t need to register the copyright with the government or put a cute little copyright symbol next to anything for those rights to be protected. So it’s safe to say that a lot of things (pictures, audio clips, film snippets, songs, etc.) carry copyright protection. Using any copyrighted work without permission of the author/owner is infrigement and can potentially land you (and your podcast) in trouble.

FORGET ABOUT FAIR USE

Sometime, somewhere along the way, someone has probably told you about “Fair Use” and that it’s a shield against claims of copyright infringement. That is not false but it’s not true either, not entirely. Anyone besides a judge (and sometimes a jury) that purports to tell you definitively whether your usage of some copyrighted material gets a pass because it was a fair use is not to be trusted! You can make some really good guesses about whether something is likely or unlikely to be a fair use defense against copyright infringement but only a court can truly say so after weighing four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

What fair use does grant us, however, is the grounds to use a part of some  audio or video to criticize/parody it, comment upon it, report about it, make reference to it, or teach about it as long as you don’t go overboard.

Instead of relying on a fair use defense (which you only get to bring up after someone is already threatening legal action), let’s focus on three ways not to infringe in the first place.

“PODSAFE” PODCASTING

  • Rule #1: Get written permission to use someone else’s content (photos, book excerpt, artwork, music, voice recordings, sound effects, etc.) and consider the various ways you intend to use it. A lawyer can help you draft releases or, if using a model you’ve found online, they can review for accuracy and application to your specific needs.
  • Rule #2: Be aware of performance rights and licensing agreements. To legally play a popular song in your podcast, for example, you would most likely need to pay fees for licensing or royalties to the rightsholder of the song. Now there are a sea of podcasters and DJs using platforms like SoundCloud to share copyrighted tracks as part of modern-day “mixtapes” and most are allowed to do so because it’s great (free) promotion for the artist, but that still doesn’t make it legal. At any time, the rightsholder and/or platform like SoundCloud can pull your content down. If you value your work and plan to gain the type of visibility that might put you in the sights of artists service providers, consider licensing the material you use.
  • Rule #3: Don’t be a jerk. Some podcasts’ bread and butter is making fun of people or saying outlandish things but they should be careful not to cross the line from funny ha-ha to “funny, I didn’t think I could get sued for that.” Avoid charges of defamation, invasion of privacy, and intentional infliction of emotional distress by refraining from tell lies about people, revealing the secret lives of private citizens, or causing emotional and reputational harm.

SO WHAT CAN YOU DO?

It’s not all bad news. Clearly, with so many out there podcasting, it’s not impossible to do so on the right side of the law. Check out the Creative Commons Wiki’s Podcasting Legal Guide for resources such as  5 Instances Where Permission Is Not Required via the Creative Commons Wiki and more.

For more information and for legal advice, please contact an attorney.

Update: After I wrote this post, I listened to the latest episode of Buzzfeed's Another Round podcast starring Tracy Clayton and Heben Nigatu. The opening exchange was too on point for me not to include it here:

Heben: This episode we’re debuting a segment I wish we could call "This African-American Life"
Tracy: Wish that we could legally call it "This African-American Life"
Heben: But our lawyers advise us otherwise… so the segment is called “Our Lawyers Won’t Let Us Call It This African-American Life’”

Maybe this is only funny to lawyers but what Buzzfeed's lawyers were concerned about was that This American Life is a trademarked title owned by National Public Radio. While I didn't get into trademarks above, trademarked content is another area where podcasters should tread carefully. Heben and Tracy smoothly side step any infringement by modifying and parodying the trademarked name in jokingly referring to their segment as “Our Lawyers Won’t Let Us Call It This African-American Life’.” Bravo ladies!

 

It’s Not a Game: running a social media contest without running afoul of the law

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“Are you sure you want to do this?” That’s always my first reaction when someone comes to me wanting to do a contest or giveaway on social media.

Contests make for great content, but just because everyone’s doing it doesn’t mean it’s as simple as slapping up a new status update. Here’s a cautionary tale for you -- Fellow lawyer and marketing whiz Kerry Gorgone cites a recent spat between retailer Cole Haan and the Federal Trade Commission (FTC) over a Pinterest contest:

Accessories retailer Cole Haan received a warning letter from the Federal Trade Commission (FTC) after they asked people to enter a contest by creating a Pinterest board called “Wandering Sole,” then pin 5 photos using the hashtag #wanderingsoles.

Cole Haan did not require people to disclose that their pinboards and posts posts were an entry to win a $1,000 shopping spree. In the FTC’s view, this madethe hundreds of Pinterest posts hashtagged #wanderingsoles into undisclosed endorsements.

Because the FTC had never publicly addressed social media contests this way before, they did not fine Cole Haan, but now that they’ve clarified their standards regarding social media contests, brands and bloggers can no longer claim ignorance. This will make it easier for the agency to fine the next company or influencer that gets it wrong.

Don’t be the next business or blogger on the Summer Jam Screen. There are a number of legal considerations to be aware of before launching your great online contest campaign.

First things first, let’s get our terminology straight. Are you running a contest, a sweepstakes, or a lottery?

  • A “sweepstakes” is a promotion where the prizewinner is determined by chance and the participants exercise no control over the outcome, like a random drawing.
  • A “contest” is a promotion that involves skill or effort rather than chance – it relies on the participant’s skill or ability to perform a certain task. Contests may include voting or judging criteria to choose a winner. An example is uploading a photo in an iPhone photography contest to be judged by Steve Jobs.
  • Both sweepstakes and contests are legal to operate if you adhere to some of the rules I’ll mention below but running a “lottery” is illegal under state laws. There are three elements to an illegal private lottery: 1) the contest requires purchase, payment, or other consideration such as buying an item or ticket to enter;  2) there’s an element of chance involved; and 3) there is a prize up for grabs.

Once you’re firmly out of lottery territory, you should focus on the issues that could potentially turn your fun, traffic-generating contest into a legal liability. 

Follow the laws of your state as well as federal laws that regulate online gambling. Many states regulate promotional campaigns based on where the participant lives. For example, in New York and Florida, if the total approximate retail value of all prizes is over $5,000, the sweepstakes will need to be registered and bonded in those states or their residents of those states will be disqualified. Check the regulations for each state in which your contest is open to participants and consult an experienced attorney before conducting a contest.

Follow the rules of social networking sites. Check out rules for FacebookTwitterPinterest, and Instagram.

Include the magic words. These should look familiar to anyone who has every entered an online contest and for very good reason. Be sure your contest rules include the following sections/phrases:

  • Official Rules
  • "No Purchase Necessary"
  • "Purchase does not enhance chance of winning"
  • "Void where prohibited"
  • Details regarding non-monetary consideration
  • The identity of the host/promoter
  • Entry procedures, beginning/ending dates, including time and time zone
  • Eligibility requirements
  • An explanation of all methods of entry
  • A clear description of the prize(s)
  • Method of selecting a winner
  • Date winner(s) will be chosen and notified
  • Clear judging criteria
  • Publicity rights regarding use of Winner's and Participant’s information
  • Liability limitations
  • Odds of winning
  • Physical address, not a PO Box

Using social media to host a winning campaign requires consideration of generally applicable federal and state laws for online contests, as well as laws related to advertising, privacy and data security. Plus businesses must ensure that their promotions comply with requirements of the various social networking sites. It seems like everyone is doing a contest these days but if they’re doing it lawfully, they’ve taken these considerations and more into account and probably have a lawyer on hand to make sure everything is in top shape. Careful attention to how you set up your contests will ensure smooth operation and avoid legal pitfalls.

Disclaimer: This information is for educational and informational purposes only. The information is not offered as legal advice or counsel of any type and should not be relied on as such. No representations or warranties, express or implied, with respect to any information on this site are created. The content herein does not create an attorney-client relationship. It is recommended that you consult with an attorney licensed in your state who can review all the relevant facts and issues of your case.

 

“First World Problems”: Copyright Liability of Memes

At first glance, the phrases “First World Problems”, “Lolcats”, and “Success Kid” might not mean much but more than likely, you would recognize them if you saw them online where they are shared on social networks, blogs, email, or anywhere user-generated content is shared. They are popular “internet memes”– a broad term representing an “activity, concept, catchphrase or piece of media that gains popularity and spreads rapidly via the Internet.” Memes can be photographs, animated GIF (Graphics Interchange Format) files, videos, and image macros (an image with a descriptive line of text at the top and a punch line on the bottom). Successful memes are hugely popular and tend to “go viral” as they are posted and reposted across the web.  

Increasingly, companies looking to capitalize off of the popularity of these memes are incorporating them into social advertising campaigns. While social networking sites make it easy to repost content with a single click, companies run the risk of copyright infringement liability for their attempts to take advantage of what appears to be “free” media. But what counts as copyrightable in the world of memes and what does unauthorized use look like?

THE COPYRIGHTABILITY OF MEMES

The creator of an original work is afforded the exclusive rights under the Copyright Act the moment she creates a work that is affixed in a tangible medium. There are two types of memes to consider when determining whether copyright protection attaches – a work that is totally original and doesn’t contain any other material protected by copyright or a work that incorporates some facet of an existing work (known as a derivative). For the former, copyright protection is fixed whether the author/creator registered or not. Ownership of copyright in a derivative meme is usually shared between the original author/owner of the media and the person that created the actual meme incorporating that media.

The reality is that many famous memes – the ones companies want to co-opt for their social advertising campaigns – are likely to have copyright protection. Once companies acknowledge that fact, they must conquer the issue of finding out who those owners are. Because of the viral nature of memes and the rapid pace at which they are disseminated and repurposed, it can be rather difficult to track down the true owner. You’d agree that it is far easier to find your photo on McDonald’s Facebook page than it is for the fast food chain to locate you. There have been several cases in which content owners have discovered the use of their images/videos by corporations and sued them for infringement.

Of course not every meme is eligible for copyright protection. Many things that trend virally as memes such as quotes, slogans, catchphrases, tags, or other short phrases are not protectable under U.S. copyright law. Ideas are also excluded from protection so for the more conceptual or fad types of memes, take “Planking” for example, there’s less risk in a company creating its own video or image around a person laying face-down in odd locations than there is in repurposing a photo of someone else planking in a particularly unique fashion. 

MAKING FAIR USE OF MEMES

Some of you familiar with copyright might be asking ‘what about Fair Use?’ According to the Copyright Act, anyone who makes a fair use of a work is not an infringer. There are four determinative factors in a fair use analysis:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

However, most corporate use of memes is ineligible for fair use protection, mainly because of factors one and four. The first factor, while not conclusive, weighs against corporate use of memes. Memes are most commonly shared from person to person simply because they’re funny or outrageous. This use is noncommercial in nature. On the other hand, a corporation’s use of memes in advertisements would almost certainly count as commercial. Simply posting memes to a brand’s Facebook page, though technically not an advertisement, is arguably still commercial in nature because the corporation receives value through increased of page views, fan engagement, and good will toward the brand.

Grumpy Cat is an example of a meme turned business.

The fourth factor, arguably the most important, would look to whether the corporate use of the meme hurt the market for the copyright owner’s work. If not, then the inquiry turns to whether unrestricted and widespread conduct of the sort engaged in by the corporation would result in a substantially adverse impact on the potential market for the meme. Since they are typically shared for fun and for free, there isn’t much of a market for many memes. Owners of the most popular of the genre, however, have been able to convert their memes into licensing deals, appearance/speaker fees, books, and more.

ADDITIONAL RISKS AND LIABILITIES

Even where a company’s use of a meme isn’t an infringing use, there are other legal pitfalls to avoid such as defamation or violations of one’s right to privacy and publicity. When an individual is exposed to public ridicule or sustains some reputational injury due to a writing, picture, or other communication embodied in physical form, that person may bring a suit for libel, a type of defamation. Companies would do well to remember that although memes often use images and videos of people with humorous intent, some depictions might offend or result in unwanted attention for the subject.

Another potential issue is invasion of privacy, particularly violation of one’s right of publicity, which “prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.” Companies seeking to capitalize off of the buzz generated from memes depicting individuals should keep in mind the emotional and reputational harm that could potentially result.

CONCLUSION

While it is unlikely that the owner of a copyright will come after you if you use their meme, gambling with intellectual property law is risky, and can be very costly. People have a right to their original works as well as rights to their images are used in certain cases. All marketing is internet marketing these days and though companies don’t want to embroil themselves in legal battles over the latest cat video, they still want to take advantage of this low-cost, high-impact way to reach consumers and build their brands. So what to do?

You could post memes with non-commercial intent in order to improve chances of getting a fair use exception. However, as explained above, the value a company derives from posting a meme could be considered a type of commercial benefit. The best bet is for companies to try to make their own memes using images and videos they own or public domain content, avoiding violation of anyone’s intellectual property rights. However, memes are only memes because they are popular and shared so unless you have the social media plan to back up the sharing of those memes, you may end up spending a lot of time with little return.

The content of this post is intended as informational only and does not constitute legal advice.