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Saturday, August 17, 2013

I WANT TO ROCK OUT MY PODCAST WITH OTHER PEOPLE’S SONGS, ANY ISSUES?





So you’ve decided to start dj’ing for your internet fans and want to show off your prodigious talent for selecting cool tunes. Maybe this will kickstart your international empire of cool. Except, you don’t want to pay anyone to play.


Before you get rolling, I want to introduce you to a little friend of mine. He is called “copyright law”— and he is ever so cute. No, actually, I take that back. He isn’t cute at all. Copyright law in the United States (yes, this is federal U.S. law) 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. Copyright law gives the owner of copyright the exclusive right to control certain activities in relation to their work. Here are some examples of what a copyright owner can control:



  • a copyright owner can control whether another person makes a copy of their work, 
  • a copyright owner can control whether another person makes changes to their work, 
  • a copyright owner can control whether another person distributes their work to the public 
  • a copyright owner can control whether another person 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.  And when I say “permission” I hope the money symbol flashed before your eyes.  If you don’t get this permission before you copy the work to your podcast, adapt it or change it to fit your podcast, or authorize users to download your podcast you are potentially violating several of the copyright holder’s rights.  And when I said “you’re violating their rights” I hope the money symbol flashed before your eyes.

In addition, in California famous people have a property interest in their voice so you may not imitate their voice for your commercial purposes.  Unless you like to get sued.

Starting to get bummed out?  Never fear, Roxanne is here to tell you five exceptions to the general rule of needing permission:

  1. You may use people’s ideas in your podcast so long as you don’t use the creative expression of their ideas.  Let me break this one down: generally, ideas are not protected under copyright law.  The idea that there are really only two emotions, love and fear, is not protected, but the wonderful written work “Love is the Answer” by Gerald G. Jampolsky is protected.  You may discuss the concept so long as you don’t plagiarize the book.  Likewise, you can discuss an event you read about in the newspaper without violating the newspaper’s copyright so long as you don’t republish the wording that the newspaper used.  
  2. You may use any work that is part of the “public domain.” Copyright protection lasts only so long.  Eventually everything ends up in the public domain, but figuring out whether a particular work has lost protection gets very complicated because the copyright laws have changed a few times over the past hundred years. The dates your coveted work was created and published will be an important part of the analysis because even one day could change which law applies.  To find a wealth of newer works that were gifted to the public domain check out the Creative Commons.  There are different rules around creative commons works depending on which license the author chose so be respectful and follow the few limitations the creator set (usually, for example, they want you to give them a shout out, sometimes they allow commercial use, sometimes not.) 
  3. You may use work created by a United States (federal) government employee or officer, as part of their official duties.  Any creation done by them in their official capacity is not protected by copyright.  Please note, however, that this exception does not apply to state employees or private contractors of the government.
  4. You may, usually, use your own stuff.  I say this to encourage you to be free, cut loose, do your own thing!  But I also have to warn you that if you created something as work product for someone else, your employer might hold the copyright.  In which case, be a new you.  If you co-created something with someone else you will need to refer to your partnership agreement (because I know you have one since you surely read my post on partnership agreements, right?) to see if you are allowed to publish it on your podcast without further permission from your co-creator.
  5. You may use copyrighted works under a “fair use” exception. “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.  For a lot more on what constitutes fair use in the digital world and how this is playing out in the courts check out this article by the Brennan Center for Justice at NYU.
But, let’s get back to your question, what about other people’s commercially available music?  There is no way around it: pay for the license or expose yourself to liability.  In the United States there are three main organizations which hold the right to issue licenses for the majority of commercially available music: BMI, ASCAP, and SESAC.  If you just want to get a license to reprint the musical composition (not actually play a song) you will probably be able to find it for sale at Harry Fox.  Make sure to look up the song by title and not artist because the artist you know might not be the song writer.   

As an aside, in researching this post, I discovered that, “Happy Birthday” is still under copyright protection, owned by Warner/Chappell Music who, according to reports, collects about $2 million a year in licensing fees.  Go know, right?  Well, recently, a class action lawsuit was filed against the company demanding the return of the last four years worth of licensing fees on a claim that the song is in fact in the public domain and Warner/Chappell Music has been collecting fees under false pretenses, but Warner/Chappell Music is fighting it.     

Finally, I feel moved to mention to you potential podcasters one more thing about law.  This time it is trademark law.  A trademark is the name or symbol a person associates with their business.  It should be obvious, but I must say that you can’t use someone else’s trademark to market your business.  You can’t call yourself, for example, the “Pandora Music Podcast” hoping to glean a little web searching traffic from Pandora’s extensive efforts to promote its business.  

Oh, and by the way, as soon as I press “post” this here blog post is protected under copyright law so, while I want you to share it far and wide, don’t steal it for yourself without thanking me profusely in some very public way.  

For more research on what copyright protects you can check out the U.S. Copyright Office’s website.  
Also, there is a great article (though a tad outdated in some respects) on wikicreativecommons that goes into much more detail on copyright and trademark law for podcasters than I do here.  And, for you bloggers out there you may want to check out this list of blogger’s rights put out by the Electronic Frontier Foundation.

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