Podcasts

What is a podcast?

A podcast is a type of digital media that usually consists of an episodic series of files (audio or video).  Think of podcasts as a prerecorded radio show that you can listen to at your convenience.  Podcast themes vary greatly; from music to sports to politics.  These podcasts are hosted online where listeners can download these files for free (paid podcasts are not that common).  While podcasts can be found all over the internet, the iTunes store is a good place to browse podcast offerings. Usually, you can subscribe to podcasts so that the next file in the series can be automatically downloaded to your computer or mobile device as it is released.  The popularity of podcasts and podcasting (making your own podcasts) has taken off in the past few years, and has become a great way to reach people.

I want to start my own podcast. What are the legal concerns? [1]

There are several legal implications to keep in mind if you want to start up your own podcast.  The biggest legal concerns for those who want to create their own podcasts involve copyright, trademark, and publicity rights issues.  If you are utilizing content for your podcast that someone else owns, make sure that all the necessary rights and permissions are secured before broadcasting your podcast.  If you create all of your own material for your podcast, then you have nothing to worry about, though, this is usually not the case.  Many podcasts utilize song snippets for intro/outro music.  Sound drops are also commonly used in podcasts. Songs are performed and interviews are conducted on podcasts as well.  Failing to secure permission and the necessary rights for all of this content can lead to legal trouble down the road.

Copyright law and podcasts

Copyright law applies to creative and expressive works, giving the copyright owner the exclusive right to control certain activities (reproduction, adaptation, distribution, public performance, etc.) with regards to that work.  Under US copyright law, copyright attaches when a work is "fixed" (written down, recorded) in some medium.  Visit the copyright section of this website for more information.

Podcasting potentially implies several copyright exclusivities: copying the work to include in a podcast, adapting the work to include it in a podcast, making the work available as part of a podcast for transmission to the public, and authorizing members of the public to make a copy of the podcast and use it according to the terms you apply to the podcast.  Any person other than the copyright owner who wants to reproduce, distribute, or adapt a protected work must get permission from the copyright holder before doing so, unless an exception applies (explored later).

As a general rule, if you use someone else's written text (book, magazine, journal, newspaper, blog, etc) you will need the express permission from the copyright owner.   Even if you only utilize a small portion of copyright protected text in your podcast, you still want to get consent from the copyright owner.  There is no "hard" rule as to what constitutes copyright infringement.  Regardless of whether you read an entire poem or one line from a poem on your podcast, copyright laws are implicated.

Be sure to ask for permission before putting copyrighted material in your podcast.  Generally, the copyright owner is identified by the copyright notice symbol ("©").  You can also use the US Copyright Office's registry to check on copyright ownership.     

Using copyrighted songs in your podcast

There are two different types of copyrights involved with copyrighted songs: the musical composition (sometimes referred to as the "underlying" work) and the sound recording.  The musical composition copyright involves the song’s music and lyrics (think sheet music).  It is common practice in the music industry that songwriters not keep the copyrights in their musical compositions, but instead assign this right to a publishing company.

Sound recording copyrights protect the recording of a musical composition as it was performed and recorded by an artist (think of what you hear when you play a CD: instrumentation, vocals, the engineering used to make the record).  Sound recording copyrights are generally not held by the recording artist either.  Typically, the record label retains the right to this copyright. 

 It is important to note the distinction between these two copyrights, as the use of any song can implicate two different copyright owners’ rights.  This means that you may need to approach different copyright holders to obtain the permission to use each song in your podcast.    

Licenses needed to use copyrighted songs on your podcast

  • Licenses for Reproduction and Distribution of Musical Works – This license allows you to reproduce and distribute copies of musical compositions, and can be obtained from the Harry Fox Agency (HFA).  Most uses of other people's music in a podcast will require that you obtain this license.  HFA's "Songfile" database allows you to search titles and song authors. 
    • Note that this license only allows you to distribute and reproduce copies of the musical composition, and does not cover the right to publicly perform the composition or the right to reproduce, distribute, or publicly perform the sound recording.   
    • The current rate for a license from HFA is 9.1 cents/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, rounded up to the nearest minute. 
      • E.g. Your podcast includes a song less than 5 minutes in length and is downloaded 1000 times.  Your resulting fee would be $91 ($0.091 x 1000 = $91).
      • E.g. Your podcast includes a song 6 minutes and 18 seconds long, and is downloaded 500 times.  Your resulting fee would be $61.25 (7 x $0.0175 x 500 = $61.25).
    • If you want to distribute more than 2500 digital downloads of the work, you need to contact HFA and set up an "HFA Licensee Account."  See http://www.harryfox.com/songfile/faq.html#faq3 for more information.
  • Compulsory License – As an alternative to the HFA license, you can obtain a similar license by following the procedures of section 115 of the Copyright Act.  For this type of license, you must notify the music publisher or Copyright Office (if unable to find the publisher) for every musical work you want to use for your podcast.  The fees are the same as an HFA license for compulsory licenses. See http://www.copyright.gov/carp/m-200.pdf for more information on how to notify the Copyright Office.
  • Licenses for Public Performance of Musical Works – These licenses are generally obtained from ASCAP, BMI, or SESAC.  Whether or not a podcast constitutes public performance has not been clearly determined.  This license will not grant any rights to reproduction and distribution of copies of the musical works (you need an HFA license or compulsory license for this).  Since podcasting inherently results in creating copies, public performance licenses are not sufficient to obtain all rights to podcast copyrighted music. 
    • ASCAP, BMI, and SESAC licenses do not grant the right to perform publicly through digital audio transmission.
      • Under an ASCAP license you can publicly perform (by podcast) your own rendition of Britney Spears' "Oops!...I Did it Again" (as long as you have an HFA license). 
        • BUT, if you publicly use (by digital audio transmission) "Oops!..." as it was recorded on CD, you would need a separate license to record and perform publicly the Britney Spears performance.
      • ASCAP: New Media Licensing
      • BMI: Music Licensing for Websites
      • SESAC internet licensing form
    • Once you have obtained an ASCAP, BMI, or SESAC license for the performance of a composition, and have received an HFA license 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 (discussed immediately following).
  • Licenses for Reproduction, Distribution, and Public Performance (by digital audio transmission) of Sound Recordings – The copyright to sound recordings are generally owned by the record company that produces the recording.  This means that you will likely have to negotiate with the record company for the right to reproduce and distribute their sound recording as part of your podcast.  Dealing directly with the record company may be preferable, because the record company generally has the legal power to grant licenses for the types of rights previously discussed – to reproduce and distribute copies of the sound recording and to publicly perform the sound recording (by digital audio transmission).
  • Licenses for Audiovisual Works (use of music with images) – Video podcasts require additional licenses.  Each of the following three licenses needs to be individually negotiated.
    • Sync Licenses – Sync licenses are negotiated with the copyright owner, usually the music publisher, directly.  The sync license allows you to “synchronize” a musical composition with an audiovisual work (your video podcast) and make copies of the resulting work.  Currently, there are no sync license schemes specifically for podcasts. To protect yourself for the time being, you should seek a sync license as if your video podcast were a theatrical release or television broadcast.
    • “Master Use” Licenses – The master use license is an agreement by which the copyright owner of a sound recording (generally, the record company) grants permission to someone else to use the sound recording in a visual work. 
      • E.g. If you want to use Britney Spears’ recording of “Oops!...” in your video podcast you will need to negotiate this license
        • But, if you want to make your own recording of “Oops!...” you would not have to secure this license.  However, you would still need to obtain a sync license for “Oops…!” since you are utilizing the musical composition.
    •  “Videogram” Licenses – Videogram licenses describe a license for programs contained in audiovisual devices (DVDs, VHS tapes, laser disc, Blu-Ray, etc.) intended for public sale for home-use.  Whether a podcast fits into this category is yet to be seen.  If you want to fully protect yourself from legal liability, securing a videogram license from the music publisher and record company might be worthwhile. 
      • A videogram license might seem unnecessary if you have already secured the music publisher’s and record company’s permission through sync/master use licenses, however, the reason for the videogram license is that the sync/master use license may not extend to copies of your podcast being distributed to the public.  The important distinction between sync/master use licenses and videogram licenses is that the sync/master use licenses are for specific purposes, a theatrical release or television broadcast, while the videogram license is for release to the public generally. 

Copyright law and podcasts – exceptions; when permission is not required

Sometimes permission is not required because an exception is applicable.

1.       You are using a fact, idea, theory, slogan, title, or short phrase

2.       You are using work in the public domain

3.       You are using a US government work

4.       You are using "podsafe" or Creative Commons licensed material

5.       You are protected by "fair use" under copyright law

1.  Fact, idea, theory, slogan, title, short phrase

Even though a work may be copyrighted, all of the elements of the work are not necessarily copyrightable.  Facts are not copyrightable because nobody can have an ownership interest in the fact that Elvis Presley was born on January 8, 1935, or the fact that Texas has a land area of 261,797 square miles.  Titles, short phrases, and slogans are also not generally protected by copyright, so can be used without consent.  However, such titles, short phrases, and slogans can receive trademark protection. 

Copyright law protects the creative expression, not the idea.  It is perfectly fine for your podcasts to include discussions of ideas and theories from magazines, newspaper, or blogs.  You do not need to ask for permission from the author in these instances.  The Copyright Act 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 “idea-expression” distinction can be unclear.  A cooking recipe (list of ingredients and instructions for combining the ingredients) would generally not receive copyright protection because it is a “process or method of operation.”  However, if a recipe is accompanied by literary expression in the form of an explanation, or if there is a combination of recipes like in a cookbook, copyright protection may be granted.

2.  Public Domain

Any work that has entered the public domain is free to use without the permission of the copyright owner.  A work enters the public domain through several methods:

  • When the copyright expires
    • Copyright protection in the US has varied considerably over time.  Currently, the copyright term is for the life of the author, plus 70 years.  For “works for hire” (LINK) the term is 95 years from first publication or 120 years after creation, whichever comes first
    • Generally, works published before 1923 are in the public domain.  If a work was published during 1923 or later, 2019 is the earliest it will enter the public domain.  Copyright protection can be extended, so most popular works will not enter the public domain, unless the copyright is improperly maintained. 
  • If the copyright protection was not maintained as required prior to 1989
    • After 1989, copyright protection became automatic.  No formal steps were required to secure copyright ownership
    • If a work was published between 1923 and 1964, copyrights had to be renewed in the 28th year after publication to maintain copyright protection
    • Between 1964 and 1989, copyright could only be secured by publishing a work with the necessary copyright notice symbol
  • The work is unpublished, and special rules indicate that it will enter the public domain
    • Unpublished works were protected under copyright until December 31, 2002.  After this date, the standard term for all unpublished works became life of the author plus 70 years
  • Author intended the work for the public domain
    • Works are sometimes created by their authors for the express purpose of being available for all to use

 

Copyright and public domain issues are often tricky to navigate because copyright term lengths have not always been consistent.  This digital slider is a simple way to determine if a work is in the public domain.

 

3.  US government work

Works created by federal US government employees, as part of their employment, are not protected by copyright.  However, works created by state and local officials are usually protected, as well as US government commissioned works created by private persons.

 

4.  "Podsafe" and Creative Commons-Licensed content

Creative Commons-licensed content is “podsafe,” so is pre-cleared for use in your podcasts.  However, there are guidelines to follow.  You will need to attribute the source of the content to the appropriate author.  Copyright notices that accompany the work must also be left intact (title of the work, Uniform Resource Identifier, etc.).  Creative Commons specifies several licensing conditions that often apply:

 

  • NoDerivatives - any copy of the work you make is verbatim; 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 - 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.
  • ShareAlike - 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. 
    • 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.

There are also Creative Commons Sampling licenses that permit you to use content in the following ways:

  • 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.

See the Creative Commons website for more information about different license types and conditions.

You can find “podsafe” material for your podcasts by searching for Creative Commons-licensed material.  You can identify this content by looking for a licensing statement to the effect of: “This work is licensed under a Creative Commons Attribution 2.5 license.”  Creative Commons content is also indicated by the use of one of the Creative Commons logos or license buttons:

Some Rights Reserved              By:              Sampling Icon

Additionally, Creative Commons-licensed content can be found using Yahoo! and Google advanced search features where you can limit a search to strictly Creative Commons-licensed works.  There are also many websites that compile Creative Commons-licensed works.  A list of such sites can be found here.

If you’re browsing for Creative Commons-licensed works, be wary that all the licenses contain a disclaimer of warranties, meaning that there is no assurance that the licensor has all the necessary rights to permit reuse of their license work.  For example, a licensor might use a Britney Spears sample in her Creative Commons-licensed work.  Just because the Britney Spears sample is used in a Creative Commons-licensed work, does not mean that you have the right to use the Britney Spears sample.  The disclaimer means that the licensor is not guaranteeing that they own the copyright, or that any of the content their work is based upon has been cleared.  Be sure that you are satisfied that the licensor has all the necessary rights to make the work available under a Creative Commons license. 

 

5.  Fair use

Fair use is a limitation on the exclusive rights granted by copyright law to the author of a created work.  A fair use is the utilization of copyrighted material for a "transformative" purpose (criticizing, commenting, parodying, news reporting, teaching, etc.).  In the event that your use of copyrighted material is deemed fair use, you do not have to seek consent from the copyright holder.  Fair use serves as a defense for copyright infringement.  In determining the existence of fair use, courts generally employ a four factor test (though the judge might consider other factors as well).  Those factors include:

1.       The purpose and character of the use ("transformative" factor), including whether such use is of a commercial nature or is for nonprofit education purposes

2.       The nature of the copyrighted work

3.       The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4.       The effect of the use upon the potential market for or value of the copyrighted work

Contrary to popular belief, acknowledging that you are using another person's copyrighted work does not provide a defense for an infringement claim.  Disclaimers that deny any association between your podcast and the copyrighted material will also not protect you against infringement claims.  Courts will make note of acknowledgements and disclaimers, but will still analyze any copyright infringement claims using the four factor test.  

Fair use podcasting scenarios.[2] 

  • 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 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.

Fair use is also discussed here

Publicity rights and podcasts

Publicity rights allow individuals to control how their likeness (voice, image) is used for commercial purposes in public.  This issue is likely to come up in podcasting because podcasts often contain interviews, performances of songs, interviews, and other spoken or visual content.  When transmitting podcasts that contain the voices or images of another person, you will need to get permission if you are using their voice or image for commercial purposes.  For example, if you want to use a copyrighted image to promote your podcast on iTunes, you would likely need to get permission from the copyright owner of the image.  First Amendment rights generally 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. 

For more information on publicity rights and misappropriation of likeness, click here.

Trademark law and podcasts

Trademark law protects consumers from being deceived (intentionally or unintentionally) as to the source of goods and services, or the affiliation of one good or service with another.  Trademark law allows consumers to rely on brands to provide certain product features and quality.  You would not be able to use the MTV branding to suggest that your podcast is in any way affiliated with the company, unless you actually were affiliated with the network.

Trademarks are violated by direct infringement or dilution.  Direct infringement occurs when you use another person’s trademark in a way that is “likely to cause consumer confusion” as to the source or affiliation between you and the trademark owner.  You would likely be infringing on Subway’s trademark if you had food review podcast called The Subway Lunch Hour.  Subway would have a legitimate trademark concern that consumers would associate and confuse their product with your podcast.   

Dilution occurs when a trademark becomes clouded by an unwanted association through “tarnishment” or “blurring.”  If your podcast, Disneyland Review Time, reviewed pornographic films, Disney would take action against you for diluting their trademark through “tarnishment.”  You could also not have “The Reebok Erectile Dysfunction Podcast Hour” because it dilutes Reebok’s trademark through “blurring” by confusing consumers.  Trademark owners must prove actual dilution, not just the likelihood of dilution. 

You do not need to get the permission to use a trademark if you are making an informational (informing, educating, expression opinions) use of a trademark or if you are making a comparative advertisement.  However, comparative advertisements often provoke the trademark owner into legal action; especially when statements about their product may not be completely accurate.  If you are making a commercial use of their mark, then you will need to get permission. 

If you use someone else’s trademark in a commercial context in your podcast, you should include a reference to the registered trademark in your show notes and in the podcast itself.  “[YOUR TRADEMARK] is a trademark of [YOUR NAME]. All other trademarks mentioned are the property of their respective owners.”  Remember that a disclaimer does not immunize you from infringement actions, but it can help show your good faith.

Click here for more trademark information.

Distributing your podcast

You can license your podcast through an "implied" or an "express" license.  The "implied" license is a license created by law based on the circumstances surrounding how the work is made available when there is no actual agreement between you and the licensee.  The "express" license means you have expressly stated the terms of the license in written form.

An implied license occurs when your actions indicate that you, as the copyright owner, extended a license to those using your podcast, but never created a written license.  Specific terms may have never been agreed upon.  The purpose of an implied license is to allow the licensee (those who want to listen to your podcast) some right to use your podcast.  There are no clearly established legal rules to handle the situation of implied copyright license, especially as it relates to podcasting.  Since implied licenses can be vague, it is a good idea to specifically express the terms under which you wish to license your podcast.

A lawyer can help prepare the specific terms of an express license for your podcast.  Two of the most common forms of express licensing for podcasts are a Creative Commons (CC) license and an "all rights reserved" license. 

You can only apply a CC license to your podcast if you are the creator of ALL the material included in your podcast or if you have express permission of the copyright owner of material included in your podcast to license their material under a CC license.  You can apply a CC license to specific elements of your podcast (e.g. interviews), but not others (e.g. third party music to which you have a limited license).  It is important to clearly identify which parts of your podcast are under a CC license.  Applying a CC license to your podcast clearly signals your listeners about the permitted uses of your podcast.  If you use Creative Commons metadata with your podcast, your podcast can be searched for through Yahoo! and Google CC-searches.  Consult the Before Licensing section of the Creative Commons Wiki before applying a CC license to your podcast.

Under the "all rights reserved" model, you would "reserve" all your copyright-related rights in your podcast by using "© [your name] [year]."  It is also a good idea to include a statement that you "reserve all rights" in your podcast and all the content created and distributed by you.


[1] "The Podcasting Legal Guide: Rules for the Revolution," authored by Creative Commons served as a guideline for this section.  For more detailed information about podcasting legalities visit http://wiki.creativecommons.org/index.php?title=Podcasting_Legal_Guide&oldid=21175

[2] Examples from "The Podcasting Legal Guide: Rules for the Revolution."