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.)
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:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonproﬁt educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 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.
- 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!