Understanding Fair Use: A Guide for Podcasters

The image displays a wooden gavel and a wooden mallet against a neutral background. The gavel has a dark wood finish with a rectangular head and a flat, horizontal handle that appears to be made of the same wood material. It is placed slightly ahead and to the left of the mallet. The mallet also has a dark wood finish, but its surface is flat on both ends, with no distinct shape or design visible in this image. There are no texts or brands present in the image, and it has a realistic style typical for photographs meant to show an object clearly without any additional context

The cover image for this post is by Tingey Injury Law Firm

This blog post was written by Mark

This blog post, which is my second time at explaining what Fair Use is and why you (likely) can’t rely on it to protect you when you use copyrighted material in your content, is incredibly condensed and lacking nuance. I’ve done the best that I can to ensure that what I’ve said is correct, and applicable to you, but

you should consult with a lawyer who specialises in copyright law. We take absolutely NO responsibility for, and will not be held accountable for, any legal trouble you might fall into relating to Copyright Law violations as a direct result of consuming this blog post

If you’re interested, you can read my initial thoughts on Fair Use here: Podcaster Questions: Can I Use Copyrighted Music In My Show?.

With that said…

As a podcaster, you’re likely no stranger to the world of copyright law. With the rise of online platforms and social media, using copyrighted content in your podcast can be a daunting task. But what exactly is fair use, and how does it apply to podcasting? In this post, we’ll delve into the world of Fair Use, exploring its basics, limitations, and what it means for podcasters.

What is Fair Use?

Fair Use is a legal doctrine that permits limited use of copyrighted material without obtaining permission from the copyright holder. It’s a complex and nuanced concept, but at its core, it’s about balancing the rights of creators with the needs of users. In the United States, Fair Use is governed by Section 107 of the Copyright Act of 1976.

Key Factors in Determining Fair Use

While there’s no one-size-fits-all answer to what constitutes Fair Use, there are four key factors that courts consider:

  1. Is it commentary or criticism? If your podcast is a critique or analysis of the copyrighted work, this factor might be in your favour.
  2. Does it illustrate a point? If you’re using the copyrighted material to make a point or convey information, this could be seen as fair use.
  3. Copyright law does not specify how much of it you can use and claim as fair use. This means that there’s no set amount of copyrighted material you can use without permission.
  4. Is there an established market for the original? If the original work has a strong market presence, using a significant portion of it might be seen as less fair.

These factors can help guide your decision-making process, but remember that Fair Use is not a guarantee – it’s a guideline.

The Three-Party Approval Process

Since music is often one of the most used types of copyrighted material in podcasts, I’ll lay out the approval process that we’d suggest. I’ve adapted this process from the one that Matt Hill (producer of The Modern Mann) uses.

To use copyrighted material, you’ll need to obtain approval from three parties: the management team of the creator, the record label that they are signed to, and the company who published the music. As Matt notes:

First, do your own due diligence.

Secondly, you need sign off from at least these three parties:

  • The management team for the creator
  • The record label that they are signed to
  • The company who published the music

Without the proper sign off from all three of these parties, you WILL eventually see the ire of the RIAA (or relevant licensing group) and you will either be sued into non-existence, will face the wrath of a DMCA strike, or both.

If you don’t have, or can’t get, all three of these parties to sign off, then you will likely be seen as passing off copyrighted materials as your own; which, in some jurisdictions is the same as stealing (and worse in others). You won’t get a simple slap on the wrist either, you could be sued for millions of dollars.

- Matt Hill

This process can be complex and time-consuming, but it’s crucial to avoid potential lawsuits.

Assessing Fair Use

Ashley Messenger (NPR’s senior associate general counsel) offers some insight on what constitutes fair use:

In sum, a use is usually considered fair when you use a short clip for the purpose of commentary or critique, or to illustrate a point. But there are no guarantees! It can be difficult to assess what is fair use, and it helps to have a lawyer guide you.

While Fair Use might seem like a viable option for podcasters, it’s essential to understand its limitations and potential consequences.

Fair Use in Podcasting

While Fair Use might seem like a viable option for podcasters, it’s essential to understand that it’s not a guarantee. In fact, it’s often better to err on the side of caution and seek permission or explore alternative options.

Using copyrighted music as a bumper or identifier without permission is unlikely to be considered fair use. However, if you’re using a short clip for commentary or critique, this might be a different story. For example:

  • A YouTuber creating a reaction video
  • A radio DJ reviewing an album while playing the music in question

Even in these cases, though, it’s crucial to obtain permission from the copyright holder or licensing company.

Why Fair Use is Not Always Applicable

While Fair Use can be a useful tool for podcasters, there are several reasons why it might not apply:

  • The 30-second rule This is a common misconception. There is no legal term “the 30-second rule,” and using copyrighted material without permission can lead to significant consequences.
  • Global access As podcasts are accessed globally, you may be required to defend yourself in any court across the world. This adds an extra layer of complexity when it comes to Fair Use.
  • Lack of clarity Even with proper research and consultation with copyright lawyers, assessing what constitutes fair use can be challenging.

Conclusion

Fair Use is a complex and nuanced concept that requires careful consideration for podcasters. While it might seem like a viable option for using copyrighted material, it’s essential to understand its limitations and the potential consequences of not seeking permission.

Before proceeding, make sure to do your own due diligence and check with a copyright lawyer to ensure you’re taking the right approach for your podcast. Remember:

  • If you’re unsure about Fair Use, don’t assume it applies.
  • Obtain permission from the copyright holder whenever possible.
  • Explore alternative options, such as licensing music or using public domain works.

By being aware of these factors and taking a proactive approach to copyright law, you can protect your podcast and ensure that you’re respecting the rights of creators.

Learn more about how you can leverage our podcast editing and mastering services today.

If you’d like us to help you work through the challenges involved with your podcasting projects, either in a hands-on capacity or as a consultant, get in touch with the form below

We'll never share your name with anyone else.
We'll never share your email with anyone else.
Providing a subject can help us deal with your request sooner.
Please be as specific as possible; it will help us to provide a more specific response.
Un-checking this box will ensure that your data is deleted (in line with our privacy policy after we have dealt with your request. Leaving this box checked will auto enrol you into our email communications, which are used for marketing purposes only.