C3 Patent and Intellectual Property Law

Jun102009 | Steve O'Donnell

Podcasts, music and fair use

I subscribe to a couple dozen podcasts and usually get to listen to at least some of them. One thing I've noticed is that a lot of them play music clips as their intro and outro. One would think that a short clip wouldn't create a legal problem, but that isn't necessarily the case.

That short clip is copyright infringement. Now, I'm sure everyone that is using such a clip thinks that it falls under fair use, but unfortunately, that isn't clear. Also, most people don't realize that fair use is a defense to infringement, but doesn't necessarily keep you out of court.

The defense of fair use is spelled out in 17 U.S.C. § 107. There are four factors that need to be taken into consideration:
(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.

There are stacks of cases applying these factors and the only really clear rule to emerge is that each case is different and requires a fresh analysis based on the specific facts. There are a number of guidelines that people think will protect them that won't. Among these misconceptions are that all non-commercial use is fair use, that acknowledging the source makes absolves one from liability, or that de minimis (minimal, short samples) copying is fair use. These misconceptions can lead people into a false sense of security, especially the de minimis assumption, when in fact,  one court essentially eliminated that defense and ruled that a two-second sample is copyright infringement.

Even if your use is fair use and you win, that comes after a potentially very long and expensive lawsuit. There are a couple ways of avoiding the issue entirely: obtaining licenses to the music, which for small niche podcasts probably doesn't make any economic sense; or using royalty free, public domain or Creative Commons licensed music. Just make sure that if you use Creative Commons licensed music that you're complying with the license.

And before anyone asks, I don't have a great explanation for why Girl Talk has not been sued yet.