Can you use copyrighted material in your personal podcast? What about “fair use”? And more copyright questions answered by entertainment lawyer Gordon Firemark.
What is a copyright?
Exclusive rights for the own of works of authorship to control how it can be used. Any fixed, original work can be copyrighted (audio, video, code, writing, etc.).
Ideas cannot be copyrighted.
Common copyright terms
- Infringement—using copyrighted material without prior permission from the copyright-holder.
- Derivative—repurposing material or making a new work from the original work.
- Attribution—giving credit to the author.
- Public domain—a work that is no longer under copyright law (typically anything older than 100 years and published in the USA).
- Distribution—any method of sharing something: podcast, email newsletter, blog post, etc.
Can you use copyrighted material?
Nanny Jenny from the Nanny Cast asked about “performing” copyrighted works by reading them in her podcast.
Get permission! Any reproduction or performance of a copyrighted work without permission, is infringement.
Anything in public domain (like classic fairytales) is free for anyone to use.
If you're denied permission or you don't get it, then you have to look at how much you can use. Some will say that podcasts are small enough media that it won't deter sales, but this should be used as support for asking permission, not for using without permission.
Using portions of copyrighted material (“fair use”)
Whether a sound clip, image, video, quotation, or other excerpt, you may be allowed to include it under the “fair use” clause in copyright law.
It can be complicated to determine what is “fair use.” It depends four things: context (nature of the use), nature of original, effect of the market, amount/substantiality of original.
- Using up to a 60-second clip from a two-hour movie is such a small portion that it's fine for commentary.
- Referring to copyrighted content is fine in all cases. “Fair use” applies when you are directly reproducing a portion of the copyrighted work.
- There aren't any hard guidelines for limits. It's a matter of how what is a “substantial amount” for your situation.
Sometimes, you can create derivatives (or mashups) with copyrighted material, but it's still best to get permission.
Using a theme song from a show as our own theme is copyright infringement, unless you have permission from the copyright-holder.
Using a Once Upon a Time podcast as an example, we discuss that using content for segment bumpers without direct commentary is probably “fair use,” but it's very close to on the line.
What about Creative Commons?
Creative Commons provides easy terms to explain the conditions by which you are sharing your content.
Finding content licensed under Creative Commons is easy and clear how you can use the material.
Commercial versus personal
Some material will say it's licensed for only personal, but where is the line for commercial?
If you use the material for promoting or producing a product, it's definitely commercial. But often, just having ads or affiliate links will push the podcast or blog from personal to commercial, because they are earning money from their content.
If you have ads, treat yourself as being commercial.
Should we copyright our own content?
You should be aware of how to protect your own original work. As soon as your creativity is put in a fixed form (like recorded or written), it is copyrighted. But registering your copyright is inexpensive (around $40) and provides easy protections, even financially.
Trying to protect your work without having it previously registered will cost a lot, unless you win.
Register your copyrights every few months, as you're allowed to register within three months. You can group material together into a folio of works, like blog posts or podcast episodes.
Creative Commons doesn't provide this legal protection that registration does.
Notice of copyrights
It's a good idea to include a brief copyright notice in this format:
[Copyright or ©] [year of authorship] [copyright owner]
For example, I could add:
© 2012 D.Joseph Design
And it doesn't hurt to include a brief mention at the end of your podcast.
Remember: get permission!
Get permissions in writing! Email does qualify most of the time. But signed paper is best.
About Gordon Firemark
- The Podcast, Blog & New Media Producer's Legal Survival Guide
- Entertainment Law Update podcast
- Follow @GFiremark
Still upcoming in our law series
- Privacy policies, disclaimers, and notices
- Podcasting as a business with tax benefits
Podcasting poll: have you registered a copyright or trademark?
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