Speaker 1: Copyright and fair use in digital media, what every content creator needs to know. Here we go. Welcome, welcome to another episode of Legit Podcast Pro. I'm Gordon Firemark, the podcast lawyer. I help creatives and business people in the podcasting industry and digital media industry and filmmaking and theater and all those other areas, but I help them cover their bases and to protect themselves and things they create. This is the weekly show where I offer legal tips and information, strategies, and answers to your questions so you can grow your show like a pro. So are you a content creator? Maybe you have a YouTube channel or a podcast and you love creating new content, but I'm guessing you haven't stopped and given a whole lot of thought to the legal side of things, and that's what I'm here to do is shed some light. Specifically, the legal areas around copyright and fair use are our topics today. Now there's no need to worry. I'm going to break this sort of complicated stuff down for you. So let's just get started. Let's talk first about copyright. Basically, copyright law is designed to promote the progress of various art forms, and it does that by providing a limited period of time, it's a fairly long period of time, uh, in which the, uh, artists have protection for their works of authorship, things like music and movies and sculptures and paintings and books and poems and songs and all those kinds of things. So as a content creator, you are considered an author under the law. And as the author, you are the owner. You hold the copyright to any original content that you create. That means that nobody else can use your content without your permission. And what that means though, is that it's true for everybody. If someone else creates content, then they have the same protections and rights. So if you're making your video or your, or your audio piece or your podcast or whatever, and you want to use a piece of music or a clip from a film, or you want to read a poem that inspires you, or maybe a passage from a book is part of the subject of what you're talking about. Any of those kinds of things. If you want to use them in your creation, you need permission from the owners of the copyrights in those components. So the usual way to get that permission is pretty obvious. You ask, you track down the owners and sometimes there are lots of them and you ask them for the permission you need. It's called a license in legal terminology. Here, you have the right to use certain, use it in certain ways for certain times and those kinds of things. That's a license. And then you negotiate a price for the license, for the rights that you need. And you have to do this for each, every, each and every piece of content that you bring into your production. It's called direct licensing and it's not the same as how things work in broadcast radio, where stations have blanket licenses from organizations here in the US called ASCAP and BMI. There's another one called CSAC, there's a few others. And every country has these organizations that allow the radio station or the, or the creators to use any piece of music that they want. But podcasting is a different medium. And so there are just plain and simple different rules. There are no blanket licenses like this available for podcasting because podcasts are transmitted in different ways. There's streams, but they're also downloadable there. You're incorporating it into something more than just a, you know, playing radio airwave kind of stuff. So the other way, anyway, so you need to get those licenses. That's what's required. And that's very unwieldy and it can be time consuming. I've spent, you know, weeks and weeks and weeks just to get one song approved for something. Well, if you're making a podcast every, every week, you don't have the time or the resources to do that. And unless you can, you know, strike a deal with a publisher or a record company or something for certain bunches of material, but that's tricky too. So the other way to get the rights to use things that are copyrighted in your material is this idea, something you've probably heard of, it's called fair use, but fair use is anything but simple to apply and, and to get coverage for. It's not something you just decide you're going to do. I'm going to fair use this thing. It's not a verb. Fair use is a description of a particular legal standard. You have to meet some really sort of tricky requirements in order for your use of something that's copyrighted to be considered fair use. It's an exception. It's actually a defense that you use in a copyright infringement lawsuit and it arises under US copyright law because here in the US we have the first amendment, which gives free speech and freedom of the press. And so that inherent conflict between a law that says you can't copy and a constitutional provision that says you have free speech. That's the reason this exists. So this, this defense exception came up in the courts in the early part of the 20th century and now it's a part of the, uh, of the statute for copyright law. So it is not part of the law in other countries. Now some other places have similar doctrines that are at work. Um, but, uh, but here in the States, it's, it's the fair use. It allows for the use of copyrighted material under certain circumstances without getting permission from the copyright holder. Fair use applies in situations like criticism, commentary, news reporting, teaching, scholarship, and research. And if you're using someone else's copyrighted material for one of these purposes, you might be able to claim fair use, but here's the catch. Fair use has to be determined on a case by case basis, meaning that what may be considered fair use in one situation might not be in another. Now I know it's confusing and I know I'm going to make it even more so right now to determine whether fair use qualifies or your use qualifies as fair use. There are a few factors that courts would consider. First of these is the purpose and the character of the use. Is it transformative? Meaning does it add new meaning or message to the original work? The second factor is the nature of the copyrighted work. You ask the question, is it factual or creative? Is it commercial or artistic? That becomes useful in deciding partly that transformation, transformative question. The third factor is the amount and substantiality of the portion used. Are you using a small portion of the original work or a large portion? But there are no rules of thumb. Remember, it's just not a quantitative how long is the clip you're using kind of inquiry, but it's also a question of how substantial is what you're using relative to the whole of the thing that's being used. So it's a big gray area kind of question. And then fourth, we consider the effect of the use on the potential market for or value of the copyrighted work. Would your use of the material harm the market value for the original? Note, this is not about whether you're making money from the use, but it's about how your use impacts the copyright and its owner. This is one of the areas where we get a lot of misconceptions. We get people saying, I'm not making any money from it, so it's OK. That's not the test. The amount and substantiality thing. There's no rule of thumb about how much is OK to take. There's a lot of misconceptions about, well, seven seconds or four bars of the music or those kind. None of that is actually true rules of thumb that you just can't do rules of thumb in this arena. So, look, I know this is a lot to remember, but the bottom line is if you're using someone else's copyrighted material in your content, you can either get a license that is permission or you can take your chances, use it without permission and hope that fair use covers you. The problem is you can't really know until you either get a DMCA takedown or you get sued. And then the judge and the jury are the ones who get to tell you whether or not they think it was fair use. Now, you can also you can consult an attorney like myself and get a fair use opinion letter that tells you what you OK, looks like what you're doing probably is fair use and therefore and we're never going to go more than probably is. Right. And depending on the kind of project you're doing, it might be a worthwhile approach if you've got a little budget for that kind of thing. You know, if you're doing a weekly album review or something like that, it might be considered commentary and criticism. But again, we have to do a deep dive analysis into this for each particular show and preferably for each particular piece of whatever you're using. So really, unless you're doing something that's very, very clearly fair use, it's going to be risky to rely on fair use as a defense to your your copyright claim against you for using that stuff without permission. So here's a quick word from our sponsor, me, PodcastLawForms.com. This episode is brought to you by Easy Legal Forms and Templates for Podcasters. If you're a legit podcast pro, you want to protect your intellectual property and ensure that content is used appropriately. Easy Legal Forms and Templates for Podcasters can help. Our form store at PodcastLawForms.com provides a variety of legal forms and templates specifically for podcasters, including host and co-host agreements, DMCA takedown notices, release forms and much more. With these easy downloadable templates, you can customize the forms you need in just minutes. Plus, our affordable bundle and a la carte pricing makes it easy to get the protection you need without breaking the bank. Visit PodcastLawForms.com today. Easy Legal Affordable Forms and Templates for Podcasters. PodcastLawForms.com. All right. Well, just a real quick summary of what we've been talking about today. Copyright law applies to every creative work that's made from the moment it's created. So you want to use someone else's stuff. You got to get their permission or rely on this fair use defense under copyright law. But that's tricky and it can be costly and expensive if you do end up having to fight a lawsuit over the issue. So that's it. Copyright and fair use in a quick nutshell. As a content creator, it is really important that you understand these concepts and avoid these legal issues if at all possible. But don't let any of this scare you off from creating amazing content. Just keep being creative, make your own stuff, keep pushing boundaries and keep making great, awesome content that inspires people to do more of the same. So thanks. Thank you for watching. That's it for this one. And don't forget, tune in next week where I will be addressing some specific issues around music and podcasting with a little more depth. And I'll see you real soon. So thanks.