Podcasting is an industry that has been experiencing steady and consistent growth since it began in the early 2000s. However, once lockdown occurred due to COVID-19, the space began rapidly growing, and now each week, more Americans listen to podcasts than own a Netflix account.
Like all other creative and expressive works, copyright law is especially relevant for podcasts. It is important that podcast creators know both how to avoid infringing on someone else's copyright as well as how to protect their own work. Doing so can help creators know what material is usable, the conditions under which the material is usable, and how to properly acquire the rights to use that material.
What Is a Copyright, and How Do You Acquire One?
As with all forms of media, copyright law is important to keep in mind and watch out for. Copyright law allows you to protect your media from being stolen and also prevents you from freely using whatever sound bite, musical piece, or written excerpt that you would like to use in your podcast. However, not everyone knows what a copyright protects or the limits of its protection.
To begin with, a copyright cannot protect an idea. For example, you cannot copyright the idea of a true crime podcast, nor can you attempt to be more specific and copyright the idea of a true crime podcast about the Zodiac Killer. You can, however, acquire a copyright on your own expression of that idea. Your words, voice, and presentation of information are all a part of your expression of the idea and, as such, are copyrightable. Of course, this means that obtaining a copyright is important if you plan to protect your expression from those who would copy it.
Obtaining a copyright for your podcast is simple—you need only have an original expression of an idea or original take on a subject and reduce it to a tangible media, such as a recording or script. Since 1989, this process has been automatic, and as long as you have done that, you will have obtained a copyright on your work. If you wish to enforce your copyright, however, it is important to take the next step in the process and file your copyright with the US Copyright Office. This will give more weight to any cease-and-desist orders you may need to file as well as allow you to pursue damages should the case ever become a lawsuit.
How Do You Avoid Copyright Infringement?
To keep from infringing on someone else's copyright, you must look for ways to legally use their work. This can be as simple as finding works in the public domain, licensing, and even using works in the Creative Commons (CC).
Licensing allows a copyright holder to either temporarily or permanently transfer the rights to use copyrighted material to an individual or a company. To play a copyrighted song on a podcast, for example, you would need to obtain the license to that song from the copyright holder. Licensing often comes with some sort of condition that needs to be followed, such as in the music industry, when musicians license their copyrights to record companies in exchange for royalties or other compensation.
One thing to be aware of when licensing music is that, often, two separate copyrights are given to music: one that protects the lyrics and composition and one that protects the artist's performance of the music. These copyrights can be owned by separate entities, and as such, it is important to license from both parties when this is the case.
Creative Commons (CC)
Licensing can be a tricky or lengthy process to navigate, so people often turn to the CC when using copyrighted material instead. The CC is an open licensing standard wherein a license can be obtained quickly and easily by simply following the terms set forth in the CC license. In this way, you do not have to go to the copyright holder directly—instead, find the licensed material on the CC website—and then you can use their material for whatever your purpose may be, so long as it does not violate the terms of the license.
As such, it is important to read the license before using the material, as some CC licenses have stipulations such as needing to give full credit to the copyright holder or not being allowed to use the work in order to make a profit. The amount of time and negotiation this saves makes using works licensed under CC a very popular way to use copyrighted material.
Works created by federal employees, as a part of their duties, are not protected by copyright. This does not always apply to state employees; however, in some cases, it can. Additionally, works created by private individuals who are contracted by the government do not fall under the blanket of government documents and, as such, are usually protected by copyright. In general, those who can speak with the force of law cannot hold a copyright on their words. As an extension of this, laws are never protected under copyright, as held in Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002).
Works that exist within the public domain may be used without obtaining the permission of the copyright holder. There are a few instances when a work may be in the public domain, but the law has changed over the term of some copyrights, so it can be tricky to navigate.
The first of these instances is when the copyright on a work has expired. This can happen to works published (as of January 1, 2022) in 1926 and earlier, as well as those whose copyright has not been maintained in the way that was necessary before the change in how a copyright was obtained in 1989. Prior to 1989, copyright protection was not automatic. If the term in which a work was originally published occurred between 1926 and 1964, then copyright protection needed to be renewed on the 28th year after the original publication. If this did not happen at that time, then the work fell into the public domain. After this period, between 1964 and 1989, works had to be submitted with the necessary copyright notice to be protected. If this was not done, the work also fell into the public domain. After 1989, copyright protection became automatic, and the term length is generally the life of the author plus 70 years. Works made for hire, however, have a copyright term that is the shorter of 95 years since publication or 120 years since creation.
Unpublished works have some similar rules and some rules that are quite different from those that apply to published works. For starters, unpublished works generally follow the same standard as published works, where the copyright protection lasts for the author's life plus 70 years. However, this is not always true. If the work was written before 1978, then it was protected until the end of 2002 and is currently part of the public domain. Unpublished works that were published between 1978 and 2002 have had their protection extended until the end of 2047.
Finally, unpublished works published in 2003 or later have the general term of the author's life plus 70 years. This means that any work that remained unpublished until 2003, for which the author died in 1952 or earlier, is currently part of the public domain.
Finally, copyright holders may dedicate their work to the public domain. This is a rare occurrence, but it can still be done if the copyright holder chooses to do so.
What Is Fair Use?
If you are looking to start a podcast, you have likely heard the term "fair use." Fair use allows for copyrighted content to be used without permission if the use is "transformative." The word transformative is very open-ended and subjective; however, some general guidelines can be provided.
The first thing about fair use that must be understood is that it is a defense against claims of copyright infringement. This means that you must be brought to court for a judge to provide a definitive answer on whether a particular use is considered fair use. Next, fair use is generally used to refer to the use of copyrighted material in commentary, news reporting, criticism, parody, teaching, or research of said copyrighted material. When considering whether a use is fair or not, there are four separate factors that are considered.
The first of these is the purpose and character of the use. An example of this is playing a portion of a song, then pausing and making an analysis and commentary on what is being played. This first factor relates back to the use cases—in this case, you are making a commentary or analysis—and relates the context of the use in your work to how your work adds on to, changes, or sets itself apart from the original material. If the commentary you provide after listening to a portion of a song is just to say, "That was good," then your use is likely not considered fair use. However, if your commentary includes the emotions a song is making you feel as well as what about the music makes you feel that way, your use is much more likely to be considered fair use.
The second factor concerns the nature of the copyrighted work. This considers the amount of protection that would be given to the original material. This allows for fiction works, which are composed of creative worlds, ideas, characters, and plot lines that originated with the author, to have more protection for their material than nonfiction works, which are composed mainly of facts or analysis of those facts. While the nonfiction writer's original analysis is certainly protected, the facts or situations they are analyzing are most likely not.
The third factor to consider is the amount and substantiality of the portion being used. For example, a 10-second clip from a 3-minute video is much more likely to hold up under fair use than a 2-minute clip from that same video, but there is no set timer or amount of a copyrighted work that always constitutes fair use.
Finally, the last factor considered is the effect of the use on the potential market for the copyrighted work. The best way to think about this factor is to ask yourself: "Is my use of the material going to provide a way for people to circumvent seeking out the original material?" If so, you are likely driving people away from the copyrighted work and harming its potential market.
Many people believe, likely because of either fair use or the terms in CC licenses, that there are times when a use cannot be infringing. However, as discussed, fair use relies heavily on the context of the use, and CC licenses can have a variety of terms. These beliefs boil down to three common misconceptions about copyright infringement.
The 30-Second Rule
The 30-Second Rule is the idea that if you use 30 seconds or less of a copyrighted work, then your use does not infringe on the copyright. This, however, is not true. It is easy to see where this belief came from because, in some instances, fair use can protect your use of 30 seconds of copyrighted material, but it is all about context. Any use of protected material can be infringing, even if that use is under 30 seconds. For example, if the original source is a musical jingle that is only 15 seconds long, then using the whole 15-second jingle as the opening to your podcast without obtaining the license to the material would certainly be an infringing use.
The Credit Rule
Many believe that simply crediting the copyright holder is enough to be free of infringement, though this is just another myth. Again, it can be seen where this idea comes from, given that one of the main CC licenses requires the licensee to give full credit to obtain the license; however, this applies neither to all works in the CC nor to all copyrighted material in general. Instead, it is important to make sure that you are legally and properly using copyrighted material.
The Nonprofit Rule
The final common belief is that the use of copyrighted material is okay if that use is not for profit. Once again, this is false—another belief likely left over by a different common CC license term. This can be disproven rather simply by a somewhat common occurrence. If the licensing term on an educational booklet created for a nonprofit organization expired, and they continued to use the booklet without the rights to do so, whether they were aware the licensing term had expired or not, they could easily be liable for infringement.
Damages Associated with Copyright Infringement
If you are found to infringe a copyright, you may be liable for either (1) actual damages and any additional profits of the infringer, or (2) statutory damages. See 17 U.S.C. § 504(a). If the copyright owner elects to recover statutory damages instead of actual damages, the owner may recover a sum of not less than $750 or more than $30,000 per occurrence. See 17 U.S.C. § 504(c). Further, if a court finds that the copyright infringement was willful, the court may increase damages up to $150,000. See id.
There are many things to look out for regarding copyright when making a podcast. Music, interviews, art, and more can all be protected under copyright, and podcasts frequently use many of these different expressive mediums. However, avoiding legal issues can be as simple as getting the correct license, using a CC work, or finding something within the public domain. If you do not plan to obtain the license for something not in the public domain, be careful in your use and be aware that fair use is a defense that will be evaluated in a courtroom and could, at best, add up to a significant cost in attorneys' fees and, at worst, you could be liable for damages for being found to infringe a copyright.
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