PODCASTING LEGAL GUIDE: RULES FOR THE REVOLUTION
Colette Vogele, Esq.
Vogele & Associates
http://www.vogelelaw.com/index.html
Stanford Center for Internet And Society
http://cyberlaw.stanford.edu/
Mia Garlick
Creative Commons
http://creativecommons.org/
Stanford Center for Internet And Society
http://cyberlaw.stanford.edu/
The Berkman Center
Clinical Program in Cyberlaw
http://cyber.harvard.edu/
1.1 Acknowledgements
1.2 Foreword, By Lawrence Lessig
2 INTRODUCTION
Welcome to the Podcasting Legal Guide. If you have
suggestions, comments or questions about the Guide, please post
your comments on the talk page of our wiki (located at http://wiki.creativecommons.org/Podcasting_Legal_Guide).
These comments will be reviewed periodically and will help us when
preparing future updates to the Guide.
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2.1 Purpose
The purpose of this Guide is to provide you with
a general roadmap of some of the legal issues specific to podcasting.
EFF has produced a very practical and helpful guide for issues related
to blogging generally (http://www.eff.org/bloggers/).
This Guide is not intended to duplicate efforts by EFF, and in many
cases refers you to that guide for where crossover issues are addressed.
Our goal is to complement EFF's Bloggers FAQ and address some of
the standalone issues that are of primary relevance to podcasters,
as opposed to bloggers.
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2.2 US-Law Only
This Guide covers only US-based legal questions.
Since podcasts are typically distributed world wide, legal issues
from other jurisdictions are relevant for you but we are unable
to include them at this time. We have released this Guide under
a Creative Commons license that permits derivatives works and so
we hope that practitioners in other jurisdictions will translate
and adapt this Guide for their jurisdictions. Please let us know
if you do by emailing podcasting@vogelelaw.com so that we can link
to your version of the Guide.
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2.3 This Guide Does Not Provide
Legal Advice
This Guide provides general information about legal
topics but it is not a complete discussion of all legal issues that
arise in relation to podcasting nor is it a substitute for legal
advice. Using this Guide does not create an attorney-client relationship.
This general legal information is provided on an "as-is"
basis. The authors and contributors make no warranties regarding
the general legal information provided in this Guide, and disclaim
liability for damages resulting from its use to the fullest extent
permitted by the applicable law.
Please also note that this Guide attempts to provide
an overview of how the law is likely to treat many of the issues
that arise in relation to podcasting. At all times, you should bear
in mind that this Guide does not advocate for how the law should
treat podcasting, only what the law is likely to be currently.
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2.4 License & Attribution
The text of this Guide is licensed to you under
the Creative Common's Attribution-NonCommercial-ShareAlike 2.5 License.
Please attribute this Guide as follows: “Podcasting Legal
Guide (http://wiki.creativecommons.org/Podcasting_Legal_Guide)
© 2006 Colette Vogele of Vogele & Associates, Mia Garlick
of Creative Commons and the Berkman Center Clinical Program in Cyberlaw.
This Guide was produced as part of the Non-Residential Fellowship
Program of the Center for Internet & Society at Stanford Law
School.”
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2.5 Organization
The next section, Section 1 - “Legal
Issues In Creating Your Own Podcast” - of this Guide jumps
right into some of the legal questions that you may need to think
about when incorporating different types of material into your podcast.
Section 2 - “Legal Issues Surrounding How You Distribute Your
Podcast” - discusses options for how you can deal with the
output of your own podcast, e.g., your licensing options for when
you distribute your work. For those of you who need a little background
on how podcasting works from a technical standpoint, Section 3 -
“Basic Background to Podcasting” - gives you some very
basic technical background. (If you've stumbled on this Guide but
have never heard of podcasting, then you definitely want to start
at Section 3.) Finally, Section 4 - “Background & Further
Resources” - provides you with a list of further resources.
Discuss
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Legal Issues In Creating Your Own Podcast.
3.1 Overview Of The Legal Issues
You Need To Consider.
When creating your own podcast, it is important
to make sure all necessary rights and permissions are secured for
the material included in your podcasts. This is relatively easy
if you create all of the material that is included in your podcast
but can become progressively more complex the more you include material
created by other people. If you do not obtain the necessary rights
and permissions, you may get into legal trouble for incorporating
third party material into your podcast and for also authorizing
others to use that material as part of your podcast.
The main legal issues that you will likely face
that are unique to podcasters are related to copyright, publicity
rights and trademark issues.
Podcasters share similar concerns to bloggers in
relation to defamation, privacy, reporter's privilege, media access,
election and labor laws and adult materials. Consequently, if the
content your podcast is likely to involve one of these issues, you
should check the corresponding section of the EFF Bloggers FAQ.
(http://www.eff.org/bloggers/lg/)
Discuss
here
3.1.1 Why Is Copyright Law Relevant?
Copyright law is relevant to podcasts because it
applies to creative and expressive works, which are most of the
things that are included in a podcast. This includes, for example,
performances, scripts, interviews, musical works and sound recordings.
Under current US copyright law, copyright attaches automatically
to creative, expressive works once they have been “fixed”,
i.e. written down or recorded. This means that when you come across
such a work, you should, as a general rule and subject to some exceptions
noted in Sections 1.2.2 - “The Goods News: 5 Instances Where
Permission Is Not Required,” 1.2.3 - “Special Rules
for Librarians & Teachers” and 1.2.9 - “Fair Use
Under Copyright Law And Its Application To Podcasts,” assume
that it is protected by copyright.
Copyright law gives the owner of copyright the
exclusive right to control certain activities in relation to the
work. For example, under US law, a copyright owner can control whether
another person makes a copy of their work, makes changes to their
work, distributes it to the public or makes a public performance
of it. Consequently, any person other than the copyright owner who
wishes to do any of the protected acts in relation to the work must
secure permission from the copyright owner before doing so, unless
an exception or exclusion applies.
When you make a podcast, you potentially invoke
several of copyright's exclusive rights, such as:
* Copying the work to include it into a podcast;
* Adapting or changing the work to include it into the podcast;
* Making a work available as part of a podcast for transmission
to members of the public;
* Authorizing members of the public to make a copy of the podcast
and use it according to the terms you apply to the podcast.
This Guide sets out some of the issues that need
to be considered to identify whether you own the necessary copyright
and/or have the appropriate permission so that you do not infringe
someone else's copyright. Learn more in Section 1.2 - “Copyright
Issues.”
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3.1.2 Why Are Publicity
Rights Relevant?
Publicity rights allow individuals to control how
their voice, image or likeness is used for commercial purposes in
public. These rights are relevant to podcasting because, in many
instances, a podcaster will conduct audio or video interviews, perform
plays, sing songs, and produce all sorts of other spoken or visual
content. When transmitting this sort of content, including the voices
or images of anyone other than yourself, you may need to get permission
from those individuals if you are using their voice or images for
commercial purposes. For example, if you have images from an interview
with someone on your podcast and you use those images to promote
your podcast, solicit advertising, or make other commercial uses,
you may need consent from the individual appearing in the image.
Learn more in Section 1.3 - “Publicity Rights Issues.”
Discuss
here
3.1.3 How Is Trademark Law Relevant?
Trademark law is designed to protect consumers
from being misled or deceived as to the source of goods and services,
or the endorsement, sponsorship or affiliation of one good or service
with another. In other words, trademark law works to ensure that
you can rely on particular branding to equate to certain product
features. So for example, Joe Citizen cannot use the name CNN and
apply it in such a way as to suggest that his podcasts come from
CNN, or are endorsed by or affiliated with CNN.
While there may be little risk that you are going
to use someone else's trademark to associate with your podcast ('cause
you want to establish your own reputation, right?), trademark law
can be implicated in what you do and say in relation to your podcast
in other ways. Because you may want to comment on a high-profile
company or their branding, you should have some familiarity with
trademark law so that you can minimize your risk of infringing trademark
rights. Learn more in Section 1.4 - “Trademark Issues.”
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here
3.1.4 What Other Issues
Should I Be Thinking About?
As a podcaster, you will face many of the same
legal questions that bloggers face. EFF's Legal Guide to Blogging
(http://www.eff.org/bloggers/)
addresses many additional issues that you should consider. These
include: rights related to the Digital Millennium Copyright Act
(DMCA), the Communications Decency Act (aka “Section 230”),
on-line defamation, privacy, reporter's privilege, media access,
election law, and labor law.
Discuss
here
3.2 Copyright Issues.
3.2.1 Using Written Content Created By Someone
Else: Permission Is Generally Required.
As a general rule, if you incorporate text that
has been written by someone else into your podcast-text that appears
either on a blog, in a book, a journal, magazine or newspaper (or
wherever)-you will need the express and specific permission of the
person who owns copyright in that material (note that sometimes
the copyright owner is different to the original writer).
Written works do not have to be full of flourish
and artistic merit, like novels and poetry, to qualify for copyright
protection. Textual works only need have minimal creativity to attract
copyright protection; so, most textual works that are committed
to paper (or computer), including those that lack literary merit
such as, for example, institutional reports, newspaper articles
and unimaginative blog postings, are likely to be protected by copyright.
There is no firm "rule" about how much
of a work you may or may not copy to avoid infringement concerns.
For example, it does not matter if you read the entire piece aloud
without changing it or if you change it a lot and simply base your
podcast loosely on the text-you cannot avoid copyright issues by,
for example, changing the work by, say, 10% or 20%. Once you use
the work, either in verbatim or altered format, you implicate copyright
law.
Consequently, you need to think about copyright
issues before you incorporate any of these materials into your podcast.
In general, this means that you need to identify the copyright owner
and ask them for permission to include their material in your podcast.
You can often identify who the copyright owner is by checking for
a copyright notice (usually in the form “© [year] [name]”)
or you can ask the person who made the work available for the information.
For works created in the United States, you can also search the
US Copyright Office's register available at http://www.copyright.gov/records/.
For more information about investigating the copyright status of
a work, check out the US Copyright Office's Circular 22. (http://www.copyright.gov/circs/circ22.htm).
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3.2.2 The Good News: 5
Instances Where Permission Is Not Required.
The good news is that you do not need to secure the separate permission
of the provider of a work in five main instances. These are: (i)
when the parts you record as part of your podcast are not protected
by copyright (see below, Section 1.2.2.1 - “You Are Using
A Fact, An Idea, A Theory Or Slogan, Title or Short Phrase”);
(ii) when the text was protected by copyright but is in the public
domain (see below, Section 1.2.2.2 - “You Are Using Works
That Are In the Public Domain”); (iii) when you are using
US Government works (see below, Section 1.2.2.3 - “You Are
Using A U.S. Government Work”); (iv) when you are making a
“fair use” of the work (see below, Section 1.2.9 - “Fair
Use Under Copyright Law And Its Application To Podcasting”;
(v) when you wish to make more than a “fair use” of
the work and the work is under a Creative Commons license that authorizes
your intended use (see below, Section 1.2.2.5 - “You Are Using
a Creative Commons-Licensed Or “Podsafe” Content.”
Discuss
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3.2.2.1 You Are Using
A Fact, An Idea, A Theory Or Slogan, Title Or Short Phrase.
Although an entire textual work may be protected by copyright, there
are elements of that work that may not be subject to the exclusive
rights of the copyright owner.
It is a general principle of copyright law that
copyright does not extend to ideas; that copyright law only protects
the creative expression. As a result, you can discuss the ideas
and theories that are discussed in a blog, an editorial or other
opinion piece without asking the permission of the author or publisher
(although you may want to think about defamation laws before you
engage in especially harsh criticism of a theory or an author; see
EFF's Legal Guide for Bloggers, FAQ Online Defamation Law available
at http://www.eff.org/bloggers/lg/faq-defamation.php).
Also, titles and short phrases or slogans will
generally not be protected by copyright because they lack the necessary
spark of creativity and so can typically be used without special
permission. (But these items may receive trademark protection. See
Section 1.4 - “Trademark Issues” regarding trademark
questions.)
Finally, an idea is not protected by copyright.
This is addressed by the Copyright Act which expressly excludes
any "idea procedure, process, system, method of operation,
concept, principle, or discovery regardless of form in which it
is described, explained, illustrated, or embodied" from protection.
This rule (called the "idea-expression distinction") means,
for example, that you can include in your podcast a discussion of
factual events reported in a newspaper-such as facts about historical
or current events-without obtaining permission from the copyright
owner of the newspaper. It also means you could describe and discuss
cooking recipes in your podcast, because they do not generally receive
copyright protection. Recipes (the mere list of ingredients and
instructions for combining the ingredients to achieve an end product)
are seen as "a system, process or method of operation".
In practice, the distinction is often difficult to know. As the
Copyright Office's notes: “Mere listings of ingredients as
in recipes, formulas, compounds or prescriptions are not subject
to copyright protection. However, where a recipe or formula is accompanied
by substantial literary expression in the form of an explanation
or directions, or when there is a combination of recipes, as in
a cookbook, there may be a basis for copyright protection.”
(See http://www.copyright.gov/fls/fl122.html
and http://www.copyright.gov/help/faq/faq-protect.html).
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3.2.2.2 You Are Using
Works That Are In The Public Domain.
You can use any work that is in the public domain
without obtaining permission of the original author or copyright
owner.
A work is in the public domain in the US either
when (a) the copyright term has expired or if copyright protection
for that work was not maintained in the manner required prior to
1989, (b) the work is an unpublished work and special rules indicate
it has fallen into the public domain, or (c) the author or copyright
owner dedicated the work to the public domain. You will find helpful
websites for determining public domain status of a work in Section
4 - “Background and Further Resources” of this Guide.
We also explain below in part (d) of this section one wrinkle that
arises when using public domain works that you need to consider
to ensure that your use does not infringe anyone's copyright.
(a) Published Works - Term. the term of copyright
protection in the US has varied considerably over the history of
US copyright law. Currently, the copyright term is life of the author
plus 70 years for content created by individuals. For works created
in circumstances of employment or works known as “works for
hire” the term of copyright is 95 years from the date the
work was first published (for more discussion of what constitutes
a “work for hire” see Section 1.2.4. - “Using
Your Own Written Content”).
In the US, as a general rule, the copyright term
will only have expired in relation works published before 1923.
Works published in 1923 or later have had their term of copyright
protection extended and so will not join the public domain until
2019 or later unless copyright protection was not properly maintained.
It is also possible that a work has lost copyright
protection because the affirmative steps that were necessary prior
to 1989 under then-applicable US copyright law were not followed
by the copyright owner. After 1989, copyright protection became
automatic; no affirmative step was required to secure copyright.
Consequently, a work can only have inadvertently fallen into the
public domain prior to 1989 under these circumstances:
* For works published after 1923 and prior to
1964, copyright protection had to be renewed in the 28th year after
publication of the work. If the work was not renewed, then the work
joined the public domain.
* From 1964 to 1989, copyright could only be secured
by publishing a work with the necessary copyright notice. Failure
to do so meant that copyright protection was lost unless the lack
of a copyright notice came within one of these exceptions.
As you can see, a fair amount of research may be
required to determine whether a published work inadvertently joined
the public domain.
(b) Unpublished Works -- Term. Some unpublished
works are also part of the public domain. This is a new development
in US copyright law. Like with published works, the general term
is life of the author plus seventy years for individuals, or 120
years from creation for works for hire, but there is a transition
period that can be a bit tricky.
Unpublished works, i.e. works that were created
but not published or registered for copyright before January 1,
1978, regardless of when their author died, continued to be protected
under copyright until December 31, 2002.
For unpublished works that were published after
January 1, 1978 and on or before December 31, 2002, copyright protection
was extended so that if the copyright holder of an unpublished civil
war diary published the work by December 31, 2002, then, the new
published version of the diary would gain copyright protection through
December 31, 2047. After the December 31, 2002, deadline, the standard
term for all unpublished works became life of the author plus seventy
years. This means that as of January 1, 2003, all unpublished works
that continued to be unpublished and not registered with the Copyright
Office as of January 1, 1978 of authors who have been dead for more
than seventy years are in the public domain. As of 2006, this means
all unpublished works of authors who died before 1936 (and that
were not published for the first time between 1978 and 2002) are
part of the public domain.
If you are a podcaster thinking about using unpublished
materials found on the Internet, here are a couple of tips on how
to deal with unpublished works. First, make note that if the unpublished
work you want to use was published between 1978 and 2002, to obtain
the extended period of protection that is given to these kinds of
works under US copyright law, it had to be published by the copyright
holder. This means that some works that were published during that
period did not gain additional protection because someone other
than the copyright holder published the work on the Internet. Second,
understand that this extended protection applies to both U.S. and
foreign works. Every unpublished work from around the world of authors
who died before 1936 is in the public domain in the United States.
That means that the unpublished diary of an Australian who died
in 1930 will be in the public domain in the U.S.; however, that
same diary may still be subject to copyright under Australian copyright
law in Australia. So, if you are marketing or targeting your podcast
for a particular territory, you need to be aware of the copyright
laws in that country as well as in the U.S. Moreover, because of
the borderless nature of the Internet, you can't really stop your
podcast from distributing to Australia, in which case you may be
violating laws in another country (We raise this here as a flag,
but please note that the scope of this Guide does not cover international
copyright questions at this time). Third, often websites have not
included when they posted a particular unpublished work, and so
one is not sure whether the unpublished work was considered published
before the December 31, 2002 deadline. If you find yourself in that
situation, the Internet Archive's Wayback Machine http://www.archive.org/)
is very useful to help determine what material was published on
the Internet before the December 31, 2002. This tool tells you when
a particular page or image was first put onto the web.
(c) Dedication To Public Domain -- Finally, a work
may be in the public domain because an author or copyright owner
has dedicated their work to the public domain, such as for example,
by using the Creative Commons Public Domain Dedication (http://creativecommons.org/licenses/publicdomain/).
(d) One Wrinkle -- One additional wrinkle when
using public domain works is that those public domain works may
be incorporated into another work that is copyright-protected. When
this happens, although the public domain portions remain unprotected
by copyright, the author's new expressive content may be protected
by copyright. For example, as a general rule, slavish photographs
of public domain works such as the Mona Lisa are not considered
to attract copyright protection because they are designed to replicate
the original public domain work as much as possible. However, a
photograph of a sculpture, even a public domain sculpture, may be
protected by copyright because of the skill and creativity involved
in setting up the shot.
Another example is of a book that is in the public
domain. Although the text of a public domain work, say, Shakespeare's
The Comedy of Errors (http://www.gutenberg.org/etext/1504),
may be free to use (for example to record a reading of the text);
an image of a recently published edition of the book -- e.g. http://www.amazon.com/gp/product/0743484886/qid=1140144444/sr=2-1/ref=pd_bbs_b_2_1/002-2073566-5466404?s=books&v=glance&n=283155)
-- may implicate the publisher's copyright in the layout and formatting
of that text, the cover art, etc., thus necessitating the publisher's
consent to use an image of that book in your podcast or a determination
as to whether your use amounts to a fair use of the published edition.
Discuss
here
3.2.2.3 You Are Using
A US Government Work.
Works that are created by a US government employee
or officer, as part of their official duties, are not protected
by copyright. Similarly, federal and state statutes and judicial
opinions are not protected by copyright. However, this extends only
to federal officials and also, only to employees. This means that
works created by state and local officials are usually copyright-protected
and similarly, material created by private persons who are commissioned
by the US government to prepare a work may be protected by copyright.
If you do incorporate government works into your
podcast, you should also consider including in any copyright notice
that accompanies the podcast a statement that identifies which portions
of your podcast are protected by copyright and which are US government
works. This is important for several reasons: (1) it allows people
to know which works they can freely use and repurpose; (2) it removes
the ability, if you bring an action against someone for infringement,
for that person to argue that they did not have proper notice of
the copyrighted status of your work.
Discuss
here
3.2.2.4 You Are Making A “Fair Use.”
You may make a “fair use” of a copyrighted
text without obtaining permission of the copyright owner. We discuss
"fair use" in more detail, and provide some examples,
in Section 1.2.9 - “Fair Use Under Copyright Law And Its Application
to Podcasts” of this Guide.
Discuss
here
3.2.2.5 You Are Using
Creative Commons-Licensed Or “Podsafe” Content
Creative Commons' licensed content is generally
“podsafe” (i.e. is pre-cleared for use in podcasts)
when your use is consistent with the applicable license terms.
Creative Commons' licenses clearly signal to the
public which uses you may make under the terms of the license and
which uses require separate and specific permission is necessary.
This means that it is important to check the terms of the applicable
Creative Commons license to identify the relevant uses that are
authorized in advance. Compliance with the terms of the Creative
Commons license is necessary because otherwise the license terminates
and then your use will become infringing.
If you use Creative Commons-licensed work in your
podcast, you will need to provide attribution in the manner specified
by the author and/or licensor. In addition, you must keep intact
any copyright notices that accompany the work; include the title
of the work; and, any Uniform Resource Indicator that is provided
by the licensor which also includes copyright or licensing information
about the work. You also need to retain a notice or URL for the
license and the warranty disclaimer that applies to the work with
each copy you make and distribute of it.
Briefly, the common Creative Commons license conditions
from Creative Commons core licensing suite may limit your use of
a CC-licensed work in the following ways:
* NoDerivatives - this license requires that any
copy of the work you make is verbatim; in other words, you may not
change the work, such as, for example, translating a textual work
into another language or dramatizing an existing work. You can,
however, still include a NoDerivatives licensed work as part of
another, larger work (known as “collective works”).
For example, you can include several pieces of music together to
form a collective work, as long as the work itself is unaltered.
You cannot, however, mash up a NoDerivatives-licensed recording
with another recording because that would constitute a derivative
work.
* NonCommercial - this license condition means
that you cannot make money from the work. This would, for example,
mean that you cannot include a Creative Commons licensed piece of
music that was NonCommercially licensed in a podcast, where the
music is the primary draw and/or a substantial amount of the podcast
and then charge people money to download your podcast. You also
cannot include advertising before or after the piece of music or
as part of the podcast if the work is the primary draw and/or a
substantial amount of the podcast. An important thing to note about
Creative Commons NonCommercially licensed content is that, under
the license, the licensor retains the right to collect royalties
through statutory and voluntary collective rights management schemes
for commercial uses of their content. In other words, if you are
a for-profit podcaster you will likely still need to obtain the
necessary permissions for your use of Creative Commons NonCommercially-licensed
music. Learn more about music-related rights in Section 1.2.7 -
“Using Music” - of this Guide.
* ShareAlike - this license condition requires
that, if you make a derivative work of a Creative Commons licensed
piece of content, you license your own podcast under the same or
similar Creative Commons license terms. For example, if you take
a Creative Commons licensed book and read it aloud as part of your
podcast, your podcast must then be licensed under a Creative Commons
license that contains the same license elements (such as Attribution,
ShareAlike etc.) The ShareAlike requirement is not, however, viral;
in other words, you can include a mash up of a ShareAlike licensed
musical track (provided it is licensed under the same CC-license
terms) together with other tracks in a podcast to form a “collective
work;” you do not have to release all of the tracks, that
are not derived from the ShareAlike-licensed work, under the same
CC-license terms.
If a Creative Commons licensed work is not licensed
with one of these license restrictions, you are then free to use
the work in one of the above manners. For example, a piece of content
that is published under the Creative Commons Attribution license
may be used for commercial and noncommercial purposes and can be
used verbatim or adapted and turned into derivative works, without
those derivatives needing to be “shared-alike” (so long
as attribution is given). A Creative Commons Attribution-NonCommercial
licensed work can be used to make derivative works (so long as attribution
is given and the work is used noncommercially). A Creative Commons
Attribution-NoDerivatives licensed work can be used for commercial
and noncommercial purposes (provided attribution is given and the
work is used only verbatim), and so on.
As part of Creative Commons customized licensing,
the Creative Commons Sampling licenses permit you to make the following
uses of content published under these licenses:
* Sampling - under this license you may only make
a partial use of the original licensed content or, if you use the
whole original, it must be insubstantial in proportion to the whole
or transformed into something totally different to the original;
this use can be for either noncommercial or commercial purposes.
Mere synching (i.e., matching or “synching” audio with
images) is not sufficiently transformative when you are using the
whole work and no advertising and promotional uses not allowed (except
for promoting your derived work).
* Sampling Plus - this license contains the same
requirements as the Sampling license but also permits you to copy
and distribute the entire licensed original in verbatim form for
noncommercial purposes, hence the “plus.”
* NonCommercial Sampling Plus - this license contains
the same requirements as the Sampling license but only permits the
transformative use for noncommercial purposes. Similarly, noncommercial
copying and distribution are allowed.
All of the Sampling licenses require that you attribute
the original work and retain notice of the applicable license, similar
to the corresponding requirements discussed in relation to the core
CC-licensing suite (see the discussion above at the start of this
section). One additional thing to note to ensure your compliance
with the Sampling licenses' terms is that when you attribute the
original work and its creator, you must acknowledge that your derived
work is a remix or includes only a portion of the original work.
One thing to note about Creative Commons licensed
content generally - you should be aware that all of the licenses
contain a disclaimer of warranties, so there is no assurance whatsoever
that the licensor has all the necessary rights to permit reuse of
the licensed work. (Note: this applies to version 2.0 licenses and
up; the version 1.0 CC licenses included a warranty of title). The
disclaimer means that the licensor is not guaranteeing anything
about the work, including that she owns the copyright to it, or
that she has cleared any uses of third-party content that her work
may be based on or incorporate.
This is typical of so-called “open source”
licenses, where works are made widely and freely available for reuse
at no charge. In open content licensing, warranties and indemnities
are best determined separately by private bargain, so that each
licensor and licensee can determine the appropriate allocation of
risk and reward for their unique situation. One option thus would
be to use private contract to obtain a warranty and indemnification
from the licensor, although it is likely that the licensor would
charge for this benefit.
As a result of the warranty disclaimer, before
using a Creative Commons licensed work, you should satisfy yourself
that the person has all the necessary rights to make the work available
under a Creative Commons license. You should know that if you are
wrong, you could be liable for copyright infringement based on your
use of the work.
Example: Ron starts distributing the new Coldplay
album under a Creative Commons Attribution-only license despite
the fact that Ron does not have the authority from Coldplay or its
record label to do so. You copy it into your podcast (giving attribution
as required by Ron's license). Coldplay (or, more accurately, it's
record company Sony) then sues you for copyright infringement. In
this scenario, in the lawsuit you are liable directly to Coldplay;
you cannot make a claim against Ron for indemnification or breach
of warranties on the terms of the Creative Commons license. Of course,
Coldplay may sue Ron separately, but as to your own use of the album
or songs in it, you will have to pay Coldplay without being able
to make any contractual counter-claim against Ron.
You should learn about what rights need to be cleared
and when a fair use or fair dealing defense may be available. It
could be that the licensor is relying on the fair use or fair dealing
doctrine, but depending on the circumstances, that legal defense
may or may not actually protect her (or you). You should educate
yourself about the various rights that may be implicated in a copyrighted
work, because creative works often incorporate multiple elements
such as, for example, underlying stories and characters, recorded
sound and song lyrics. If the work contains recognizable third-party
content, it may be advisable to independently verify that it has
been authorized for reuse under a Creative Commons license. In addition,
you may need to think about what other rights may attach to the
content you wish to use, such as trademark or publicity rights.
Discuss
here
3.2.3 Special Rules For
Librarians Or Teachers.
It should be noted that there are special rules
for using copyrighted works in the context of teaching and for libraries.
In general, these rules allow for performance and display of certain
copyrighted works in the face-to-face classroom setting. Other rules
apply (under the “TEACH Act”) for distance learning.
Librarians also have special rights. The details of these case-specific
rules are beyond the scope of this Guide at this time. Suffice it
to say that if you are using a podcast in a classroom setting (either
face-to-face or through distance learning), or if you're a librarian,
you should look into these special rules. For further information
see sections 110(1) and 110(2) of the Copyright Act (17 U.S.C. §
110), http://www.copyright.gov/title17/92chap1.html#110,
Copyright Office Circular 21 (http://www.copyright.gov/circs/circ21.pdf).
Laura Glassway's table found at http://www.unc.edu/%7eunclng/TEACH.htm,
also helps to explain the various rules.
Discuss
here
3.2.4 Using Your Own Written
Content.
If you create your own creative, expressive material
for use in your podcast, you should, as a general rule, have no
issues in terms of copyright clearances. If you are the creator
of a sufficiently original work, then you will generally also be
the first owner of copyright in that work once you have committed
pen to paper, hit “save” or “record” and
thus, able to exercise any and all of copyright's exclusive rights
as you choose.
It is, however, important to be aware that there
are circumstances in which, even though you are the creator of a
copyrighted work, you are not the “author” or first
owner of copyright. In the US, this split between first creator
and first owner can generally occur in two instances: (i) if your
work comes within the definition of being a “work for hire;”
or (ii) if you sign an agreement transferring ownership rights to
someone else. Additionally, you may not be the sole author or sole
owner of copyright if you created a copyrighted work with someone
else collaboratively.
Under US law, the first category of a “work
for hire” is a work made in the circumstances of employment.
As a general rule, an employer becomes the first owner of copyright
in anything created by their employees so if you create your material
as part of your job you need to consider whether you or your employer
owns the copyright to the material you wish to include in your podcast.
In the US, there is an additional category of works
made for hire that can apply to work created by non-employees. To
qualify as one of these works for hire (outside of the employment
relationship), the work must come within one of nine categories
of works, be specially commissioned and be the subject of a written
and signed agreement that the work is a work for hire. For more
information about works for hire under United States law, check
out information circular number 9 from the United States Copyright
Office (http://www.copyright.gov/circs/circ9.html).
Someone other than you can also become the copyright
owner of your work by an express written agreement, signed by you,
transferring ownership of the copyright. Consequently, if you have
signed away your rights to your work you may no longer be free to
incorporate it in your podcast.
Finally, if you work collaboratively with another
artist to create some expressive work, then you may be a joint author
and owner (rather than a sole author/owner) of the work. In that
case, you will need to check the terms of any agreement between
you and your fellow collaborators to see if you are able to freely
exercise your rights as a joint author/owner and incorporate it
into a podcast or whether you need the permission of your co-author.
As a general rules, each joint author has an independent right to
use or license the copyright without the permission of the other,
subject only to a duty to account to the other co-owners for any
profits; however this may be varied by an agreement between the
joint authors.
Discuss
here
3.2.5 Incorporating Pre-Existing Audio Voice Recordings.
If you wish to incorporate pre-existing audio voice
recordings that have been prepared by someone else, you need to
think about both copyright and publicity rights issues. In at least
California, you also need to consider the property interest in appropriating
someone's voice. Copyright and the property right in one's voice
are discussed here. For publicity rights, see the discussion in
Section 1.3 -“Publicity Rights Issues” of this Guide.
As regards the copyright issues, in audio voice
recordings there are generally two copyrights-one in the work being
recorded (generally referred to as the “underlying work”)
such as the text, script or performance and one in the actual recording,
the fixation of sounds. To use an audio voice recording created
by someone else, you need to make sure you have the necessary permissions
to use both if you want to include it in your podcast. So for example,
if the recording is Creative Commons licensed, you need to ensure
that the license applies to both the underlying work and the recording.
Copyright protection of the recording as a general
rule means that a person cannot, without the express permission
of the copyright owner, duplicate or rearrange the actual sounds
that make up the recording. Even taking a small amount of the original
sounds will implicate a copyright right; in the words of one recent
appellate court decision: “get a license or do not sample.”
Consequently, even minor reproduction or arrangements require express
permission of the copyright owner.
This does not prevent a person, however, from creating
a new recording of independently fixed sounds, even if the end result
sounds the same as a pre-existing copyrighted recording-but copyright
in the underlying work may still need to be cleared. So, for example,
if you come across a recording of a person reading aloud a chapter
of a recently published book, you can record yourself reading that
chapter aloud without infringing the first person's copyright in
their recording; but you may need to get permission to use the book
chapter from the book's author or copyright owner. (Note that permission
to record the book chapter should not be necessary if the book is
in the public domain.)
In California, there is also a tort of misappropriating
identity. For example, if you imitate the voice of a “widely
known” professional singer, you need to be concerned about
violating that singer's property interest in her or his voice. This
is the result of a court decision from 1988 involving Bette Midler.
In that case, Ford Motor Company used a sound alike singer to sing
“Do You Want to Dance” (a song made famous by Midler)
for a commercial, after Midler had declined to allow her rendition
of the song to be used. The court found that although there were
no copyright or right of publicity interests in the voice, Ford
had nevertheless “appropriated what is not theirs” -
Midler's identity. The take home lesson for podcasters is this:
if you're going to (1) imitate the “distinctive voice of a
professional singer” which is “widely known” and
(2) you “deliberately imitate” the voice “in order
to sell a product”, you may run into a misappropriation of
identity problem.
Discuss
here
3.2.6 Interviewing Someone
Or Asking Someone To Join You In Conversation As Part Of Your Podcast
If you interview someone for your podcast, you need to consider
both copyright and publicity rights issues. For publicity rights,
see the discussion in Section 1.3 - “Publicity Rights Issues”
of this Guide.
As regards, copyright there may be two different
owners of copyright in one interview - you as the interviewer and
the interviewee in their response to your questions -depending on
how the interview is presented.
In general, an interviewee will likely own copyright
in their verbatim responses. As an interviewer, you will likely
own copyright in your questions and any commentary you make during
the interview and in any version you create of the interviewee's
conversation or any organization and arrangement of interview responses.
As an interviewer, you may also own copyright in the overall compilation
of an interview that incorporates different answers to multiple
interviewees.
As an interviewer, you should make sure the interviewee
agrees to the interview, your adaptation of their responses (assuming
you intend to adapt them) and to the inclusion of their responses
in your podcast and the circulation of your podcast on the terms
you choose. In many interview scenarios, you may have an implied
license to use the materials, but it safest to get your interviewee's
written consent or (at minimum) record the interviewee's verbal
consent before you use the interview in your podcasts. (See discussion
about the legal terms on which you can distribute your podcast in
Section 2 - “Legal Issues Surrounding How You Distribute Your
Podcast”).
Discuss
here
3.2.7 Using Music
Using music in your podcast opens up many specific
copyright issues that we will address in this section. If the music
you use is created by someone else and does no fall within one of
the 5 types of content for which you don't need permission (see
Section 1.2.2 - “The Good News: 5 Instances Where Permission
Is Not Required”), then these rules will apply to your use
of that music. If you write and/or record all of the music you wish
to use in your podcast, then you should consider the issues outlined
in Section 1.2.4 - “Using Your Own Written Content”
of this Guide to make sure you own the rights to your music. If
you do, then you should be able to include it in your podcast without
having to traverse the issues laid out in this section.
To understand the complex web of copyright issues
in relation to music, you need to understand four basic principles:
(i) that two types of copyright protected works are incorporated
in most pieces of music; (ii) that two types of rights attach to
each of these works and attach in different ways; (iii) what kinds
of licenses you may need to obtain and from which entities; and,
(iv) when and whether your use of music can constitute a fair use.
You can see why music needs its own section. This section is split
into four parts.
Discuss
here
3.2.7.1 Two Types Of Works Involved In A Copyrighted
Song.
When you use copyrighted music in a podcast you
are generally implicating two different types of copyrighted works:
the musical composition and the sound recording. Although the practical
distinction between these types of works is not obvious when you
listen to a recording (i.e. when you listen to and use a piece of
music, you are typically listening to and hearing both intertwined),
it is nevertheless important because each of the two types of work
is protected by its own copyright and is subject to its own rules.
This means that a podcaster may need to approach multiple different
rights holders just to obtain permission to use a single song. The
different entities that may own rights in the song will be discussed
in Section 1.2.7.3 - “Licenses You Will Need”. First,
however, it is worth taking a moment to explain the differences
between the two types of copyright protected works that exist in
most recorded music.
(a) Musical Composition. A copyright in a musical
composition encompasses a song's music and lyrics. It can be helpful
to think of this work as what would appear in a sheet music arrangement
of the song (the notes, score, markings, etc.). Copyright protects
compositions from the moment a songwriter fixes the work in a tangible
medium, such as writing the sheet music or by hitting “save”
in a software program that creates music.
In practice, most songwriters do not retain the
copyrights in their musical compositions, but instead assign the
copyright to a publishing company - a business entity that specializes
in commercially exploiting musical compositions. Most publishing
companies, in turn, authorize collective rights management agencies
to license and collect royalties for certain specific uses of their
compositions. In the US, the Harry Fox Agency is typically authorized
to issue so-called “mechanical licenses,” that is, the
ability to reproduce and distribute the musical composition. The
publishing company then also authorizes one of the performing rights
organizations (e.g., ASCAP, BMI, or SESAC) to issue licenses for
“non-dramatic public performances” of the composition
(“non-dramatic” performances generally means performances
other than for opera or musicals and would include broadcasts).
For more on the Harry Fox Agency and the performing rights organizations,
as well as on the reproduction/distribution and public performance
rights, see the discussion in Section 1.2.7.3 - “Licenses
You Will Need,” of this Guide.
(b) Sound Recording. A copyright in the sound recording
protects the recording of a musical composition as it was performed
and recorded by an artist or group. Think of this work as what you
would actually hear when you play your favorite CD: the singer's
voice, the sound of the musical instruments and all of the engineering
that goes into making the recording. It is important to note, however,
that federal copyright protection of sound recordings only attaches
for recordings created after 1971.
Under state common law, copyright may attach to
sound recordings created on February 15, 1972 or earlier. Use of
pre-1972 sound recordings is subject to protection under state common
law copyright. To determine who has the rights to a pre-February
15, 1972 sound recording and what rights they are entitled to exploit
exclusively, you will need to look at the applicable state law --
usually the law of the place where the recording was made.
As with musical compositions, the recording artist
generally does not hold the sound recording copyright. Instead,
whatever rights the artist has (and they are usually not copyright
rights) are assigned to a record company in return for a share of
the royalties from the sale and/or licensing of the sound recording.
If you want to obtain permission to use someone else's sound recording,
however, you face a more complex situation than you do in relation
to musical compositions and the permission you need to secure depends
on how you are distributing the recording. For example: (1) no license
is required to use a sound recording in an over-the-air radio broadcast;
(2) digital transmissions that are considered non-interactive digital
streams (in other words, listeners can't pick the songs they hear)
require permission from SoundExchange, a performing rights organization
designated by the Copyright Office to collect and distribute statutory
royalties to sound recording copyright owners and others; (3) digital
transmissions that are considered interactive digital streams (such
as an on-demand service where users can pick the songs), and digital
downloads, require permission be obtained from the record company
that owns the copyright in the sound recording. Unfortunately for
podcasters, it is not always clear into which of these categories
a podcast fits; as a result, it is not certain to whom you should
turn for licenses. These complications are discussed in Section
1.2.7.3 - “Licenses You Will Need.”
Discuss
here
3.2.7.2 Two Types Of Copyright
“Rights”.
In addition to appreciating that there are two
types of works (the musical composition and the sound recording)
at stake in any recorded song (and therefore, potentially, two copyrights),
the use of a song in a podcast might implicate two or more different
exclusive rights that copyright owners are granted under the Copyright
Act in different ways, specifically: the right to reproduce and
distribute copies of a work, and the separate right to perform the
work publicly. Because as noted above in (see Section 1.2.7.1 -
“Two Types of Works Involved In A Copyrighted Song”)
these rights also are frequently owned by different rights-holders
and licensed by different entities and may or may not be implicated
in the making and delivery of a podcast, it is worth taking a moment
to explain the differences between them.
(a) The Reproduction Right. Copyright holders in
both musical works and sound recordings (see Section 1.2.7.1 - “Two
Types of Works Involved In A Copyrighted Song”) hold the exclusive
right to “reproduce,” or make copies of, the copyrighted
work. If you create a new copy of someone else's song, for example,
by downloading an MP3 file, burning it to CD, or causing it to be
transferred to an iPod or other MP3 player, you may violate the
copyright holder's exclusive right to reproduce the work.
The simplest case of copying music involves reproducing
an entire song. If you take an entire music track of someone else's
song from a CD and use a CD burner to make a copy of it, you might
violate the rights of reproduction in both the musical work and
the sound recording -- absent fair use (see Section 1.2.9 - “Fair
Use Under Copyright Law And Its Application To Podcasts”).
However, if you record your own rendition of a song, based on a
song you heard, you only violate the right of reproduction in the
musical work, but not in the sound recording. This is because the
reproduction right in a sound recording only extends to copying
the actual sounds included in the sound recording; it does not extend
to the independent creation of similar sounds.
If your podcast includes all or part of someone
else's recording of a copyrighted song, you may infringe the reproduction
rights in both the music al work and the sound recording. So if
you create an audio file that contains the music (whether ripped
from a CD or taken from a downloaded music file) you make a reproduction
of two copyrighted works and, unless any of the exceptions described
in Section 1.2.2 - “The Goods News: 5 Instances Where Permission
Is Not Required” apply, you need to have express permission
from the rightsholder(s) (this means permission in writing, such
as an email giving you permission from a source you can confirm
is indeed the person with authority to give the right, followed
by a confirming letter from you noting the specific rights granted
in the email, and the right-holder's signature on the letter). This
would be true even if you never post the podcast online. If you
do in fact post the file for others to download and you have not
obtained the copyright holders' permission, in addition to direct
infringement you could be also be secondarily liable for copyright
infringement (udner theories of ”contributory” or ”vicarious”
infringement) each time someone downloads it, because your act of
putting it online enables others to create unauthorized copies.
Copyright infringement lawsuits potentially could result in thousands
or even millions of dollars in damages and attorney's fees. Therefore,
the only truly safe course under current law is to secure express
permission to use, in your podcasts, any copyrighted music and sound
recordings that are created by others unless you are sufficiently
certain that it falls under the so-called “fair use”
exception (discussed in Section 1.2.9 - “Fair Use Under Copyright
Law And Its Application to Podcasts”) or otherwise falls within
an exception (see Section 1.2.2 - “The Goods News: 5 Instances
Where Permission Is Not Required”).
(b) The Public Performance Right. In addition to
controlling reproductions of their music, the holders of copyrights
in musical works, and in sound recordings that are transmitted digitally
(e.g., over the Internet), also have the exclusive right to publicly
perform their works. This right is less straightforward than the
reproduction right, and courts have not resolved the question of
whether it applies to podcasting. In this context, “performance”
does not have its usual dictionary meaning; instead, it is defined
in the Copyright Act to include essentially anything that allows
music to be heard. “Performing” a song can include singing
it, broadcasting or webcasting it, or just having a radio turned
on and music playing. But in order to infringe the public performance
right, a performance must also be “public.” A performance
is public if it takes place where many people are gathered (except
in a home among family and friends) or if it involves transmitting
a work either to a place where many people are gathered or generally
to the public (as with a radio broadcast). The “public”
requirement means that playing legitimately acquired music at home,
like on your iPod or stereo, does not infringe the public performance
right.
A podcast is probably “public” within
the meaning of the Copyright Act (since it can be freely downloaded
by all), but it may not be a “performance.” Although
normal Internet “streaming” webcasts plainly constitute
“performances” because the transmissions from the webcasting
server are immediately made audible by the listener's computer (just
as songs broadcast over the air immediately are emitted as sounds
by the radio), the way in which music included in a podcast is made
audible is at least one-step less direct. In the ordinary case,
a podcast is first downloaded as a copy onto the user's computer;
the user, acting on his own initiative and timing, then plays the
podcast and any music in it on her computer, iPod or other portable
player.
Although your actions in creating a podcast ultimately
enable a willing listener to hear the music (and other contents)
contained in your podcast, it is currently still an undecided question
whether you are therefore “publicly performing” a work
merely by making it available for download; the US Copyright Office
has declared this “an unsettled point of law that is subject
to debate.”(U.S. Copyright Office, DMCA Section 104 Report,
August 2001, available athttp://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf,
xxvii.) No court has yet squarely addressed the issue, which means
that podcasting is currently operating in a realm of considerable
uncertainty.
Some of the leading copyright law commentators
have suggested that non-simultaneous transmissions, such as podcasts,
probably do not implicate the public performance right. (See Bruce
P. Keller & Jeffrey P. Cunard, Copyright Law: A Practitioner's
Guide, 2004 ed., § 14.2(E). Cf. Melville B. Nimmer & David
Nimmer, Nimmer on Copyright, August 2005 ed., § 8.14(B)(1)
(noting that internal operations of a computer do not seem to constitute
a performance).) Performing rights organizations, by contrast, have
asserted that “[e]very Internet transmission”, streaming
or download, is a public performance. For example, ASCAP's Internet
license FAQ (http://www.ascap.com/weblicense/webfaq.html)
states that ASCAP's view is that "every Internet transmission
of a musical work constitutes a public performance of that work."
There are three main performing rights organizations
in the US -- ASCAP, BMI, and SESAC - who own and license the public
performance rights to the majority of commercially available musical
works. BMI has recently created a license specifically designed
for the podcasting of music (http://www.bmi.com/licensing/forms/Internet0105A.pdf;),
and ASCAP (http://www.ascap.com/weblicense/release5.0.pdf)
and SESAC (http://www.sesac.com/licensing/internetLicensing.asp)
have general Internet licenses which cover podcasting.
If you want to use commercially released music
that BMI, ASCAP and SESAC or a large corporate entity control and
you are concerned and want to eliminate any uncertainty, you may
wish to obtain a public performance license either from BMI, ASCAP
or SESAC or the individual artist or composer.
The person or entity who owns the copyright in
a sound recording also enjoys the exclusive right to publicly perform
that sound recording by means of digital audio transmission. The
Copyright Act defines “digital transmission” very broadly
(any “transmission in whole or in part in a digital or other
nonanalog format”). If you want to provide a podcast with
a copyrighted sound recording on an interactive basis (the user
can select and download the podcast), then, that may be regarded
as a digital audio transmission. If you need to secure a license
for that use, then, ordinarily, you must approach the copyright
holder of the sound recording directly.
Discuss
here
3.2.7.3 Licenses You Will
Need.
(a) Licenses For Reproduction And Distribution
Of Musical Works. You can obtain a license to reproduce and distribute
copies of the musical composition from the Harry Fox Agency (http://www.harryfox.com/public/index.jsp);
most uses of other people's copyrighted music in podcasts will require
that you obtain such a license (unless an exception applies Section
1.2.2 - “The Goods News: 5 Instances Where Permission Is Not
Required”). Note that you can access the Harry Fox Agency's
“Songfile” database, which allows you to search to find
titles and authors of songs in relation to which Harry Fox licenses
the reproduction rights (http://www.harryfox.com/public/songfile.jsp).
One thing to be sure to do is search both on the title of the song
you want over the author/song writer's name. The reason for this
is that the singer (e.g. Britney Spears) who performs a song (e.g.
“Oops!...I Did It Again”) is often not the author/song
writer (e.g. Max Martin, Rami). By searching on title, you will
be more likely to find the title you intend to find.
Remember - the licenses obtained from the Harry
Fox Agency cover only the right to reproduce and distribute copies
of the musical composition in a musical work and do not cover the
right to perform publicly the musical work (see the preceding discussion
for a description of licenses for public performances) or the right
to reproduce, distribute copies of or perform the sound recording
included in the work (see part (c) below).
The current rate for a license from the Harry Fox
Agency is 9.1 cents per song per download for songs up to 5 minutes.
If the song is longer than 5 minutes, the rate per download is 1.75
cents times the number of minutes (or fraction thereof). In either
case, what you would have to pay is based on this rate times the
total number of downloads. So, a podcast including one song of less
than 5 minutes in length downloaded by 1000 users, for example,
would result in fees of $91 ($.091 x 1000). A podcast that is 6
minutes and 18 seconds long downloaded 500 times would cost $61.25
(7 minutes x $.0175 x 500). Licenses from the Harry Fox Agency are
available at http://www.harryfox.com/public/licenseeServicesDigital.jsp.
There is also a per-song “processing fee” of $8 to $10.
Details of these costs are found in Harry Fox Agency’s FAQ
(http://www.harryfox.com/songfile/faq.html#faq1).
If you want to distribute more the 2500 digital downloads of the
work, you need to contact Harry Fox Agency and set up an “HFA
Licensee Account” ( for more information see http://www.harryfox.com/songfile/faq.html#faq3).
Alternatively, podcasters can obtain licenses similar
to the one available from the Harry Fox Agency by following the
procedures of section 115 of the Copyright Act. This license is
known as a "compulsory license" and requires notifying
either the music publisher or the Copyright Office (if the publisher
cannot be located) for every musical work desired (Information on
notifying the Copyright Office is available at http://www.copyright.gov/carp/m-200.pdf).
The usage fees are the same for the compulsory license as for a
license with the Harry Fox Agency
(b) Licenses For Public Performance Of Musical
Works. If you decide to secure a public performance license from
ASCAP, BMI, and SESAC based on the discussion in Section 1.2.7.2
— “Two Types of Copyright ‘Rights,’”
you need to remember that this license will not grant any rights
to reproduction and distribution of copies of the musical works
(for that you will need a Harry Fox license, discussed in part (a)
above). Since the creation of a podcast and podcasting to the public
inherently results in creating copies, public performance licenses
alone would not be sufficient to obtain all the rights to podcast
copyrighted music.
In addition, the ASCAP, BMI and SESAC licenses
do not grant the right to perform publicly (through digital audio
transmission) or the right to reproduce or distribute copies of
any copyrighted sound recordings (as distinguished from musical
works). For example, under the ASCAP license, you can publicly perform
by podcast your own kazoo rendition of the musical composition of
Britney Spears’ song “Oops!... I Did it Again”
(so long as you have also obtained the rights to reproduce the underlying
lyrics and score from Harry Fox (see part (a) above), but if you
publicly performed (by digital audio transmission) the original
Britney Spears’ recording from a CD you would also need a
separate license to record and perform publicly the sound recording
of Britney’s performance.
The typical rate schedule for the current ASCAP
license charges podcasters 1.85% of revenue plus 0.06 cents per
session, with a minimum payment of $288 a year (http://www.ascap.com/weblicense/release5.0.pdf).
In addition, ASCAP requires quarterly reporting of music usage.
Similarly, the current minimum fee for the BMI license is $283 a
year (http://www.bmi.com/licensing/forms/Internet0105A.pdf),
and the minimum fee for the SESAC license is $168 a year (http://www.sesac.com/licensing/internetLicensing.asp).
Separate licenses from each organization may be necessary if you
wish to use different songs in your podcast because each organization
holds the rights to different musical works.
Once you have obtained a license from ASCAP, BMI,
or SESAC for the performance of a composition, and from the Harry
Fox Agency for the reproduction and distribution of copies of the
composition, you can then legally podcast your own renditions of
those compositions. However, if you want to podcast copyrighted
recordings made by others (e.g., a song ripped from a CD or copied
from a legal download), then you need to think about obtaining a
license for reproduction and public performance (by a digital audio
transmission) of those sound recordings (which is discussed in the
next section) unless one of the exceptions discussed in Section
1.2.2 - “The Goods News: 5 Instances Where Permission Is Not
Required” applies to your situation.
(c) Licenses For Reproduction, Distribution, And
Public Performance (By Digital Audio Transmission) Of Sound Recordings.
All of the rights to a sound recording are usually owned by the
record company that produces the sound recording. Unfortunately,
this means that you may be required to negotiate separately with
multiple record companies for the right to reproduce and distribute
their respective sound recordings as part of your podcast. Dealing
directly with the record company that owns the rights to a particular
song may be preferable, because the record company likely has the
legal power to grant licenses for all the types of rights discussed
above — to reproduce and distribute copies of the sound recording
and to publicly perform the sound recording (by digital audio transmission).
(d) Licenses For Use Of Music Together With Images
(or Audiovisual Works). This section deals with additional licenses
you need to consider if you are using music with images in your
podcast. Therefore, this section only applies to video podcasters.
If your podcasts are limited to audio-only, then the good news is
that you need not worry about the following three licenses.
If you a video podcaster, then the possible licenses
you will need to include a musical work with images in your video
podcast fall into three categories: (i) synchronization (or “sync”)
licenses (ii) “master use” licenses, and (iii) “videogram”
licenses. Like the licenses for reproduction and public digital
transmission of sound recordings (see previous section), these licenses
do not fall within the mechanical licensing schemes and must be
individually negotiated. Also, it should be noted that these licenses
stem from “traditional” practices in a world pre-podcasting
and pre-internet (e.g., many of these licenses relate to movie-releases
and television broadcasting) and their specific application to the
podcasting/digital world is not obvious.
(i) Sync License. The sync license is negotiated
with the copyright owner (likely the music publisher) directly.
The Harry Fox Agency discontinued sync licensing in 2002 (see http://www.harryfox.com/public/licenseSynchronization.jsp).
Traditionally, the sync license allows you to “synchronize”
a musical work with an audiovisual work, such as a motion picture
or television program, and to make copies of the resulting audiovisual
work. Also traditionally, these licenses came in only two flavors:
a theatrical sync license and a television sync license. This means
that under a traditional sync license, you may only distribute the
licensed copies for the specific purpose of either exhibiting the
audiovisual work in motion picture theaters or broadcasting the
work on television. It is not clear how exactly these licenses will
be applied in the podcasting context. To date, no specific sync
license scheme exists for podcasts or other digital transmissions.
Given this ambiguity, the most conservative route
in protecting yourself from legal attack is to consider your video
podcast as a “theatrical release” or a “television
broadcast.” Doing so means that you may be required to obtain
a sync license when you want to include a musical work with the
images in your podcast. If you are required to do so, then you should
contact the copyright owner (likely the music publisher) directly
to get permission to synchronize the musical work with the video
track of your podcast.
(ii) Master Use License. The master use license
is negotiated with the record company. It applies only if you want
to use a particular recording of a musical work with a video image
that you are putting into your video podcast. For example, it applies
when you want to use Madonna's recording of “Sorry”
in your video podcast. When you do that, you will be required to
get permission from the record company to use the “master
recording” of the song for inclusion in your video podcast.
The “master use license” does not apply if you make
your own recording of “Sorry” for your video podcast.
(iii) Videogram License. Traditionally, a videogram
(= “video” + “program”) license is used
to describe a license for programs contained in audiovisual devices
- like videotapes, laser discs or DVDs - primarily intended for
sale to the public for in-home use. Whether a podcast is considered
legally the same as a videotape, laser disc or DVD remains to be
determined. Viewing the risks conservatively, you may need a separate
“videogram” license from the music publisher and the
record company if you plan to distribute your podcast to the public
(which, of course, is how most podcasts are distributed). The videogram
license is necessary because the music publisher's permission under
the traditional sync license may not extend to copies of your podcast
that you distribute to the public. Likewise, the record company's
permission under the master use license to use the recording of
a song in the podcast may not authorize releasing the podcast for
distribution to the public. The important notion here is that the
trigger for this requirement is that your content is made available
to the public generally, and not merely for a specific purpose like
theatrical release or television broadcast.
Discuss
here
3.2.7.4 The “Fair
Use” Exception.
For a discussion of how the fair use exception
may apply to your inclusion of other people's music in your podcast,
please check out Section 1.2.9 - “Fair Use Under Copyright
Law And Its Application To Podcasts” where we discuss fair
use.
Discuss
here
3.2.8 Using Video/Images.
If you are interested in video podcasting, vlogging
or otherwise including images or video with your podcast, you need
to think about potential copyright issues and publicity issues.
For publicity rights, see the discussion in Section 1.3 - “Publicity
Rights Issues.” You should also generally consult the EFF
Legal Guide for Bloggers if the content of your video podcast will
likely touch on issues relevant to defamation, election and labor
laws or adult material: http://www.eff.org/bloggers/lg/.
As regards copyright, the issues that arise are
similar to those that arise in relation to the use of text or music
except that there are more of them because a greater number of copyrighted
works may be included in an image or video. You need to isolate
and think about each type of work that may be included in an image
or video and identify whether you need to clear each of those works.
For example, you will need to identify each piece of music you use
and any still images or video footage created by other people and
consider whether copyright applies and if so, whether your use requires
the copyright owner's permission or whether your use falls within
an exception to copyright. Using music together with images in a
video podcast also raises special licensing issues. These are addressed
in Section 1.2.8 - “Using Video/Images.”
One final thing to consider that is not addressed
above, although architects have no right (under copyright law) to
prevent a public building from being photographed or sketched, you
may want to think before including other artwork in your video or
image collage and go through the exercise of identifying whether
your use likely constitutes a fair use or whether separate permission
is needed.
Discuss
here
3.2.9 Fair Use Under Copyright Law And Its Application
To Podcasts.
A “fair use” is copying any protected
material (texts, sounds, images, etc.) for a limited and “transformative”
purpose, like criticizing, commenting, parodying, news reporting,
teaching the copyrighted work. Under the US copyright laws, fair
use “is not an infringement of copyright.” Judges typically
consider four factors that are set forth in the Copyright Act. These
factors are non-exclusive, so judges are permitted to consider other
facts in addition to these. However, in the vast majority of cases,
courts limit their analysis to these factors (you can read more
detail about these factors at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html.
The Brennan Center's excellent public policy report entitled “Will
Fair Use Survive?: Free Expression in the Age of Copyright Control”
provides a analysis of how fair use has played out in numerous scenarios
over recent years: http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf):
* the purpose and character of your use (this
is sometimes called the “transformative factor”);
* the nature of the copyrighted work (e.g., is the work highly creative
fiction warranting broader protection, or is it highly factual warranting
narrower protection?);
* the amount and substantiality of the portion taken, (as compared
both to the underlying work and the work in which the copying is
used); and
* the effect of the use upon the potential market (e.g., did the
copyrighted work lose market share or potential market share?).
In addition, some commentators refer to a “fifth
fair use factor” which hinges on good faith -- whether your
conduct might be considered “morally offensive,” Judges
and juries are human, and their decisions can be swayed by whether
they think you are a "good or bad” actor (see http://bgbg.blogspot.com/2005/10/search-or-seizure.html).
Discuss
here
3.2.9.1 Two Misconceptions
About Fair Use.
(a) Acknowledgement Is Not Enough. Some authors
have the erroneous belief that an acknowledgement will immunize
a copyright infringement as “fair use.” This is a myth.
Including an acknowledgement may be considered in analyzing the
four statutory factors, but it is by no means is a clear defense
to a claim of infringement.
(b) Disclaimers Are Not Enough Either. Another
point of confusion is whether an upfront disclaimer that denies
any association between the podcast and the copyrighted material
can protect the podcaster from liability. For example, assume your
podcast is a parody of “The OC” television show. You
include a disclaimer at the beginning of your podcast in which you
state: “This podcast is not associated with or endorsed by
Fox Television.” This sort of disclaimer will not, by itself,
protect you from a claim of copyright infringement, or act as a
clear defense to such a claim. It will, however, be considered among
the factors the court considers, and in a very close case, a court
may look positively on a clear statement of disassociation. (Note,
however, that including a clear disclaimer can help with potential
trademark infringement situations. See section 1.4 - “Trademark
Issues” -- for further information about trademark law.)
Discuss
here
3.2.9.2 Examples Of Fair
Use That May Apply In Podcasting.
To help illustrate the way these factors may play
out in the podcasting context, it may help to consider a few examples:
* Example 1: A book group organized by a high
school teacher podcasts its meeting discussing J.D. Salinger's Catcher
In The Rye. The members discuss the book, read short portions of
it aloud, and criticize and comment on the author's style, the storylines,
and the like. The podcast is posted on the book group's blog site,
which is hosted by the high school. The site includes no advertising
and generates no revenue. Conclusion: This would likely be a fair
use.
* Example 2: A podcaster uses the copyrighted
music of pianist George Winston for the intros and outros of her
podcast that is about yoga and meditation. The podcast has nothing
to do with commenting or critiquing the music played. Conclusion:
This is likely not a fair use.
* Example 3: A 10-minute podcast includes a group
of music fans discussing a recent copyrighted article in Rolling
Stone magazine about a new band. One fan reads 4 paragraphs of the
6-paragraph article and comments on its analysis of the band. Another
fan plays a 1-minute segment of the band's copyrighted song, which
is 2 minutes in length. The fan then discusses the music as it compares
to other music in the genre. The fans post the podcast on a fan
website where advertising is sold, and the fans receive revenue
for their podcast. Conclusion: This commentary/criticism by the
fans in response to the article and song suggests a “fair
use”, but the commercial/profit aspect of the site where the
podcast is being distributed raises concern, as does the amount
of the article and song taken in comparison to their overall length.
Any negative effect on Rolling Stone magazine's market or the band's
market for its music could cut against the fair use argument, though
the podcasters might argue that the podcast promotes the Rolling
Stone magazine article and band's song, and that it is not a replacement
for either (of course, this would likely be costly and difficult
to prove in a trial setting). Given the flexible application of
the fair use doctrine, and that the burden lies on the podcaster
to prove fair use, podcasters in this situation could be found to
infringe.
Discuss
here
3.3 Publicity Rights Issues
A claim of right to publicity generally arises
if you use another person's image, likeness or voice in a podcast
without their consent and for commercial purposes, which results
in injury to the individual. (See EFF's Bloggers FAQ for some recent
cases where the right of publicity was at odds with the Constitution:
http://www.eff.org/bloggers/lg/faq-ip.php).
This means that if you use another image, likeness or voice as a
way of advertising or soliciting your podcast, you will need the
individual's consent. First amendment (freedom of speech) rights
allow uses of a public figure's name or likeness so long as it is
done (1) in a truthful way and (2) does not imply a false endorsement
of you or your podcast by the public figure.
Right of publicity is governed by state law, which
means that it can vary state to state. For example, in California,
a plaintiff would need to show that your podcast (a) used the individual's
name, voice, signature, photograph, or likeness in your podcast
(b) for purposes of advertising or selling, or soliciting, the podcast
(or any other products or services), (c) without the individual's
consent. If the plaintiff proves her case, she is entitled to payment
of damages (of at least $750), profits from the unauthorized use,
and her attorney's fees and costs.
The good news is that that law in California includes
an important exception to the general rule that consent is required.
In situations where the name, voice, signature, photograph or likeness
of an individual is used “in connection with any news, public
affairs, or sports broadcast or accounts, or any political campaign,”
consent is not required. So, to the extent your podcast can be construed
as “news, public affairs, or sports broadcast or accounts”,
you do not need to obtain consent of the individuals. The language
of this section is deliberately broad, so it is likely to apply
equally to bloggers and podcasters as it would to traditional media,
though this question has never been tested by California courts.
In California, if you use the name, voice, signature,
photograph, or likeness of a “deceased personality”
in your podcast, you still need to consider right of publicity issues.
California law permits the heirs of that deceased personality to
control the use of the personality for up to 70 years after the
personality's death.
Moreover, on a related note, in California, you
need to consider risks associated with misappropriating the identity
of a well-known celebrity. For more information on this issue, see
the discussion in Section 1.2.5. - “Incorporating Pre-Existing
Audio Voice Recordings” regarding the Bette Midler case.
Discuss
here
3.4 Trademark Issues.
3.4.1 Infringement And Dilution.
Generally, you can violate a trademark in at least
in two ways: by direct infringement, and by dilution.
Direct infringement occurs when you use someone
else's trademark (often a competitor's trademark) in a way that
is "likely to cause consumer confusion" as to the source,
affiliation or sponsorship between you and the trademark owner.
This might occur if you use a trademark to describe your podcast,
and the trademark owner thinks that your podcast is sufficiently
related to their product or service, that a listener might conclude
that the podcast comes from or is endorsed by the trademark owner,
when that is not the case. For example, if you named your music-review
podcast "The Rolling Stone Music Hour", you may find that
Rolling Stone magazine will be unhappy with you and perhaps send
you a cease and desist letter (among other possible unpleasant things).
If however, your podcast had to do with gardening instead of music
(e.g., Rolling Stone Gardening Hour), your risk of infringement
would be much smaller, because listeners are unlikely to think that
the well-known music magazine was sponsoring your gardening-related
podcast.
Dilution can occur if the character of the trademark
becomes clouded by an unwanted association, either through tarnishment,
which occurs when a famous mark is used to promote a product that
is considered offensive (e.g., the mark "DISNEYLAND" being
used to market an X-rated podcast), or through blurring, which means
the use of a famous trademark causes consumers to blur the two companies
in their minds (e.g., naming your podcast the "Nike Hemorrhoid
Discussion Group"). In a dilution claim, a trademark owner
must prove actual dilution, not merely the likelihood of dilution.
Note that dilution does not occur from a “nominative”
or informational use of a trademark, such as a critical review or
what is known as a “descriptive” use of a trademark
(i.e., using it in a sentence to discuss Nike). But even if consumers
are not at all confused about the source, a trademark owner can
have a claim for dilution.
Discuss
here
3.4.2 When Do I Need Permission?
Generally you do not need permission to make an
informational (also called "editorial" or "nominative")
use of a trademark. You also do not need permission if you're making
a comparative advertisement (however, comparative ad situations
often provoke trademark owners into legal action even when their
trademark claims are weak especially if your statements about their
product and your claims regarding your product are not wholly accurate).
You will need permission if you're making a commercial use of the
mark.
You may also identify the trademark of another
(such as your employer or former employer) if the reference is accurate
and does not cause confusion. For example, “I am Sobert Roble,
and I work for SicroMoft” is acceptable if the context does
not falsely suggest that the employer (here, SicroMoft) endorses
the podcast. But using a title for a podcast such as “SicroMoft's
Sobert Roble Speaks Out On The Issues” may suggest endorsement
by the employer, and should therefore be avoided if that is not
the case.
One other thing to remember is that you are not
under an obligation to identify each and every trademark as a “registered”
trademark. You can even use a trademark in the title of your podcast
as long as it is not the title of series of podcasts. So, for example,
you can title a single podcast “TRADEMARK ATTRIBUTION FOR
DUMMIES” and not violate the trademark in the “For Dummies”
books (see http://www.schwimmerlegal.com/archives/2006/02/trademark_attri.html).
EFF's Bloggers FAQ discussing intellectual property
questions, http://www.eff.org/bloggers/lg/faq-ip.php,
addresses the basic questions about when you may use a trademark
without permission (nominative or informational uses) and when you
need permission (commercial uses) in your blog. Those same rules
apply equally to your audio or video podcast. You should just think
more broadly about how trademarks will appear in your podcast (e.g.,
as sounds and images), which might be unique from the written text
of a blog entry. You will still need to consider if your use of
the mark is informational (informing, educating, or expressing opinions
protected under the First Amendment) or commercial (like advertising,
promotion, or marketing). See also the Chilling Effects website's
trademark FAQ available at http://www.chillingeffects.org/trademark/faq.cgi.
Discuss
here
3.4.3 A Note About Using Trademark Disclaimers.
If you use a trademark in a commercial context
in your podcast, it is a good practice to include a reference to
registered trademarks of others in your show notes (if you have
them) as well as in the podcast itself. A statement along these
lines would suffice:
“[YOUR TRADEMARK] is a trademark of [YOUR
NAME]. All other trademarks mentioned are the property of their
respective owners.”
You may also check with the company whose trademarks
you reference and read its trademark use policy typically found
on its website. While using a disclaimer does not immunize you or
clear your rights to use a particular trademark in a commercial
context, it can help to show your good faith.
Discuss
here
3.5 Finding “Podsafe”
Content To Include In Your Podcasts.
Finding good content to use in your podcast and
individually negotiating permission to use it can be a time-consuming
task and may also be daunting if you are unsure if the rights-holder
will agree to authorize the use of their content in your podcast.
One way to reduce the time and hassle of individually
seeking permission from each rights-holder is to search for Creative
Commons licensed material. CC-licensed material is “pre-cleared”
for use in accordance with the terms of the applicable Creative
Commons license. We explain at section 1.2.2.5 - “You Are
Using Creative Commons-Licensed Or 'Podsafe' Content” - about
the different types of Creative Commons licenses. Below we explain
how you can find and identify CC-licensed content that you may be
able to use in your podcast.
Discuss
here
3.5.1 Finding CC-Licensed
Materials.
Creative Commons licenses are expressed in three
formats: the human readable summary of the key terms (Commons Deed);
the actual license (Legal Code); and, finally Resource Description
Framework metadata that describes the key license elements in machine-readable
format.
You can identify Creative Commons licensed content
in two ways: either by looking for a human-readable statement that
a piece of content is licensed under a Creative Commons license.
This can include, for example a statement to the following effect:
“This work is licensed under a Creative Commons
Attribution 2.5 license http://creativecommons.org/licenses/by/2.5/.”
And/or this may be indicated by the use of one
of the Creative Commons logos or license buttons, such as our “some
rights reserved” button:
Image:Somerights20.png
Or the CC license buttons:
Image:By-icon.gif Image:Sampling-icon.gif
You can also find Creative Commons licensed content
through the customized Yahoo! and Google searches that are available
in the “Advanced Search” pages for both search engines.
The Yahoo! Advanced search (http://search.yahoo.com/search/options)
page clearly illustrates how you can limit your search results to
Creative Commons-licensed works. In the Google Advanced Search page
(http://www.google.com/advanced_search),
by limiting your search according to “Usage Rights”,
this will restrict your searching to find CC-licensed materials
only.
There are also various content aggregator sites
that offer a large amount of Creative Commons licensed works. These
are listed at this page: http://wiki.creativecommons.org/wiki/Content_Curators.
One thing to note about Creative Commons licensed
content generally - you should be aware that all of the licenses
contain a disclaimer of warranties, so there is no assurance whatsoever
that the licensor has all the necessary rights to permit reuse of
the licensed work. (Note: this applies to version 2.0 licenses and
up; the version 1.0 CC licenses included a warranty of title). The
disclaimer means that the licensor is not guaranteeing anything
about the work, including that | 
