Using Copyrighted Content – The Legal End of Podcasting
So you are planning your podcast for the week. You hear a sound, a song or a movie trailer that you want to incorporate in your show. But wait – there might be copyright on that clip. So how can you legally use it? Could a lawyer come knocking at your door next week with a take down notice?
I started really looking into and trying to understand copyrights because I seem to have one in every 10 YouTube videos get flagged for non-monitization. I claim “Fair Use,” but can I hide behind that shield everytime?
YouTube doesn’t really help with understanding copyright. Youtube thought it would be “cute” to explain copyright using “Happy Tree Friends.” While it was entertaining, it wasn’t what I really wanted to sit through.
So I hit the books and asked some questions. Here is what I came up with:
How to Record Podcasts Disclaimer on Copyrights
I am not a lawyer, nor do I play one on TV (which is copyrighted). I did consult people who practice copyright law. Joseph Becker (www.jrbeckerlaw.com), Prof. Jonathan I. Ezor (www.tourolaw.edu) and John Mitchell (www.interactionlaw.com).
Best practice is to consult your lawyer and get consultation for your podcasts.
Different Types of Laws – Copyright vs. Trademark
Joseph Becker pointed out there is copyright law and trademark law. Motion pictures are under US copyright, whereas logos (like the Batman logo) are under trademark law.
“TV Clips would come under (copyright law) umbrella,” Becker states. “Thus, one would not be allowed to use the TV clips of another (such as of a TV Network) without permission. The copyright owner of any (copyrightable) work is the only one who can reproduce the work, or display or publish it to the public. Using another’s TV clip in a podcast in this way would infringe upon such rights. The same is true for sound recordings and musical works.”
That means even the actors in the show have to get permission to use clips if they don’t hold rights to the show.
Copyright and Fair Use Law
You might try to hide behind Fair Use, but there are limits to that. The definition of Fair Use is to use a part of an audio or video to report, comment on, give reference to (research), teach, or archive.
Here is an example: A famous football player or celebrity speaks at a press conference. You can pull a sound byte if you are reporting about it. You can pull a sound byte if you reference it. You cannot pull the byte and continually play it as a joke or filler to your show.
My favorite soundbite is the Price is Right “sad horns.” An example where I could claim Fair Use in using this clip – I am reporting about Edd Kalehoff, composer of this riff and many more Price is Right (and other game show) themes. I might not be able to claim Fair Use if I continually use sad horns to fail a bad joke or comment.
Exception: A riff or soundbite is so short that it could mean anything. For instance, if I play the chords “G” and “C” in succession I couldn’t get sued because those chords are used in many songs. If I played the opening riff to AC/DC’s “Thunderstruck” (about five seconds of it), I could receive a cease and desist letter because it can be construed as the song.
“Short clips in the U.S. are generally assumed to be covered under the Fair Use Doctrine (see, e.g., http://www.copyright.gov/fls/
fl102.html),” states Jonathan Ezor, “although there is no clear-cut test for whether something is or is not fair use, nor for how much or how little of a work may be used without it being considered an “unfair” use. The bigger challenge for podcasters is the potential scope of their infringement and the borderless nature of the Internet: any infringement, in any country to which the Internet connects, could be a problem.”
Recreation and Parody
Even if I parody a soundbite it might not fall under Fair Use. In music, the song must be 25% changed and not reflect the original. That is why you might hear some royalty free music that sounds like the Price is Right theme, but the melody sounds very different. Example: CES 2012 I created this intro that sounds like a popular disco song.
Boogie Singer Intro music
How do I Get Permission?
This is an excellent question. Maybe I want to use lines from the movie Caddyshack and don’t mind paying in for that right. Where do I go? What do I do?
John Mitchel gives us insight into that:
“Getting permission is, of course, also an option. Unfortunately, it is not always clear who can give permission. For example, getting permission to use an audiovisual clip may not satisfy the author of a musical composition performed in it. Or, the visual may have been fine as far as the filmmaker was concerned, but give rise to a “publicity right” claim by someone whose image was included.”
Music: Start with ASCAP (ascap.com), BMI (www.bmi.com) or SESAC (www.sesac.com). If you contact one of these companies looking for use of a Bob Dylan song (for example) they will point you to the right label if they do not represent Dylan.
Film: Written permission must be obtained from the film production company (Dreamworks, Columbia, Fox, Paramount, Universal, Warner Brothers, etc).
TV: In most cases, contact the network. Keep in mind although a show is broadcast on NBC, ABC could be the production company.
Sports: Although NBC and Fox broadcast NFL games, you still have to get additional permission from the NFL to use any account of a football game in a podcast. Same thing goes with other sports (Baseball, Basketball, Hockey, etc.)
Books: Yes, you even need permission to recite passages. Example: if you decide to read a quote a day from Steve Jobs’ book, you must contact the publisher and get written permission (Publisher can be found on the first fews pages of the book where copyright is stated).
What about Movie Trailers?
Movie trailers are also under copyright. I know it sounds a little strange since movie studios want to promote their movies. You still have to go through the production companies to get permission. Joesph Becker explains:
“Movie trailers themselves are of a different nature than most works, since they practically act as an advertisement for a movie: something the studios want as many people to see as possible. The studios are not concerned with collecting money for the release of their trailer as much as they are concerned with the goal that the trailer is supposed to accomplish: to get people to see the movie. The trailer is just the bait. So permission for using a trailer may be simpler to get than permission to use other types of works. “
You still might have to pay a licensing fee to play a movie trailer in your podcast.
Copyright to Public Domain
In certain cases video and audio might have been moved to public domain by the creators. Other works defaulted to the domain because their copyright was not renewed. There are many movies, audio, and other clips in public domain (which you can use freely). You can find a lot of these public domain clips at Archive.org.
Copyright in other Countries
Just because it’s OK in the US, doesn’t mean it’s OK in Germany, China, or other countries. I had videos get rejected in other countries because of different copyright law. Laws vary by country – Consult an International copyright lawyer.
Ignorance is No Excuse
If you were to ever appear before a judge in court and say, “I didn’t know,” the judge won’t show mercy on you. I try to abide by a model of non-ignorance. I don’t say, “Screw it, I’ll do it anyway”.
Knowing and abiding by copyright (and trademark) law might take longer and cost money. However, if done right, you might just get noticed by the production companies that you asked permission from. Skipping these steps may end up costing you more in the long run.
Questions or comments? Feel free to Twitter HTRP @RecordAPodcast