Podcast creators share a common goal: to make engaging episodes that inspire people to tell their friends the phrase we’ve all heard a million times, “Hey! I have a new podcast you should check out.” But while you’re worried about making great content, are you also paying attention to what elements of your podcast might be inadvertently infringing someone’s copyright? We thought it would be helpful to consider that question and suggest some methods for avoiding copyright infringement on a podcast.
It Starts With an Idea
Like all creative works, podcasts are focused on a central theme. From true crime, to music reviews, to self-help and beyond. If you can think of a topic, it probably exists as one of the millions of podcasts available in the United States. That being said, ideas are not protected by US copyright law. Additionally, facts, concepts, systems and methods of doing something are likewise not protected by copyright.
So, what does this mean in the context of a podcast? Let’s imagine that Creator A has a true crime podcast. Each episode features a specific story and interviews with victims. Creator B also has a true crime podcast that features a similar story-interview format. If Creator A sued Creator B for infringing her true crime podcast by using a similar story-interview format or for covering the same crime, Creator A would lose because the story-interview format is an unprotectable method and the crime itself is a fact that is also not protected by copyright.
However, the expression of an idea is protected under copyright law. Knowing this, let’s revisit the true crime podcast scenario: If Creator B copies one of Creator A’s podcast episodes, or portion of an episode, the use could be infringing. This is because Creator B is not simply copying the idea for a true crime podcast as she was in the first scenario. She is now copying the expression of that idea. It should be noted that when Creator B copies only a portion of Creator A’s podcast there could be an exception in the law, like the fair use defense (see below), that allows Creator B to use the portion without it being considered to be an infringing use.
Common Myths About Podcast Content
There are some common myths floating around the podcasting community regarding the use of copyrighted materials in podcasts. Here are three of the most common podcast copyright infringement myths – debunked.
Myth #1 – The 30 Second Rule
The first myth is that it’s okay to use copyrighted material (such as music, sounds, or other audio recordings) as long as you use 30 seconds or less. This rule does not exist. Using any portion of copyrighted material for a podcast without permission may be copyright infringement if an exception or limitation on the copyright owner’s rights does not apply. Fair use is one such limitation and discussed further below. It would be wise to secure the rights before using any copyrighted material.
Myth #2 – The Credit Rule
The second myth is that it’s okay to use copyrighted materials as long as you provide the appropriate acknowledgement to the copyright holder. However, this myth is also false. Giving credit to the copyright holder in your podcast does not mean you have permission to use the material. You still need to secure the rights.
Myth #3 – The Nonprofit Rule
The last copyright infringement myth states if you are not making profit from your podcast you have carte blanch to use copyrighted materials in your podcast. Like the others, this myth is also false. Just because a use is not for profit does not automatically mean the use is non-infringing. Even if a use is not for commercial purposes it may be considered to be an infringing use if the use is not considered to be a fair use.
Methods of Avoiding Copyright Infringement
Barring an applicable exception or limitation, there is no way around using copyrighted material without purchasing the rights or otherwise obtaining permission from the copyright holder. If you have neither of these, you cannot include the material in your podcast without risking legal action. So, what are some ways to avoid the liability?
Your first option is to license the copyrighted material you want to use, meaning you pay for permission to use the work. When we say licensing, most podcasters probably think music. Depending on your budget, you might not be able to afford the license for a particular song, but that doesn’t mean you can’t get access to music to use in your podcast. There are a number of stock music and sound effects websites that allow you to purchase copyrighted materials. Some operate on a subscription basis, while others allow you to make purchases on a song-by-song basis. A simple web-search can help you uncover a stock audio site that best fits your needs, or check out one of these:
Outside the realm of music, you may want to license imagery for the thumbnail of your podcast. There are also a number of stock image websites that function similarly to the music stock sites mentioned above. Consider checking out one of these:
Creative Commons (CC) is an open licensing standard. Copyright empowers the copyright owner to set the terms when they offer a work under a CC license. This means podcasters can use these works as long as the rules set by the copyright owner are followed. These rules are typically broken down and easy to follow (i.e. not-for-profit only, requires attribution, etc.). Taking the time to search through CC for music, sound effects, and images can save you a legal headache in the future.
Audio clips from court cases or official political speeches, and recitation of written government documents, may be used without a license. This is because works created by a US government employee or agency, as part of their official duties, are not protected by copyright. The same may be true for works created by state employees as well. Generally, officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties.
The Public Domain
The term “public domain” refers to works that are no longer protected by copyright. No one owns these works. Therefore, you are free to use works in the public domain without obtaining permission. There are three common ways that works end up in the public domain:
- The copyright has expired.
The term of copyright for a particular work depends on several factors, including the date of publication. Generally, for works created after January 1, 1978 copyright protection lasts for the life of the author plus 70 years. For anonymous works, pseudonymous works, and works made for hire, the copyright lasts for a term of 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. For works created prior to 1978, the term depends on several factors. To determine the length of copyright protection for a particular work, be sure to consult Chapter 3 of the Copyright Act.
- The owner of the copyright failed to follow renewal rules.
This only applies to works created prior to 1978. For works created on or after January 1, 1978 there is no renewal requirement. Be sure to do your due diligence and research the work and whether possible renewals may affect your ability to freely use the work.
- The copyright owner deliberately places the work in the public domain.
Sometimes a creator deliberately chooses not to protect a work and dedicates it to the public domain. This is rare. Unless there is express authorization placing the work in the public domain, do not assume it is free for your use. Further, you should determine whether the person who placed the work in the public domain had the right to do so. Only the copyright owner can dedicate a work to the public domain. Additionally, a creator may revoke a dedication and withdraw a work from the public domain. When in doubt, reach out to the copyright owner to verify the dedication and affirm the work is still in the public domain.
Doesn’t the Fair Use Defense Protect Me?
Fair use is an affirmative defense that can be raised in response to a claim of copyright infringement. The fair use defense permits a party to use copyrighted works for a variety of purposes, including criticism, comment, news reporting, teaching, scholarship, or research depending on the outcome of a four factor test set forth in the Copyright Act. Because fair use is dependent on the analysis of these four factors, fair use defenses will always be evaluated on a case-by-case basis. The four fair use factors are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
In some instances, yes, your use may be fair use. But, given the nature of the analysis, it may be unwise to rely 100% on this defense without any additional research and analysis.
Looking to learn more about copyright infringement on podcasts and possible ways to avoid it? Check out the Limitations on a Copyright Owner’s Rights and Copyright Infringement sections FAQs on our website.
Photo Credit: iStock/Bet_Noire