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Which Podcaster Will Be The First To Be Sued For Copyright Infringement?

By April 13, 2011 Posted in Uncategorized

Lately, I’ve been listening to a lot of podcasts.  Every morning when I wake, I’ll download a few to listen to while I walk my dogs and for the drive to work.  Some of my favorites (in case you were interested) are The Adam Carolla Show, This American Life, The Nerdist, Hollywood Babble On, The Moth, Slate’s Culture Gabfest and Political Gabfest, Filmspotting, WTF, Comedy Death Ray and Doug Loves Movies

However, listening to some of these podcasts, I often hear fairly blatant acts of copyright infringement.  This could prove very dangerous to the podcaster.  Some of these podcasts have regular downloads in the hundreds of thousands.  So even a minor use could result in a significant claim of damages.  If you are producing a podcast, here are a few things you really need to know to avoid legal liability.

The most egregious violations occur through the use of music.  Most podcasters like to start the program with some music.  So they typically just grab a popular song from their computer and use it to begin the show.  But this is almost always a bad idea.  When Adam Carolla started his very popular podcast a few years ago, he used The Who’s I Can See For Miles in the intro.  Someone must have told him that this was not allowed, and he changed to an Indian Raga version of the same song, apparently believing that since he wasn’t using the original version, he was in the clear.  This is a common error. With the use of music, there are two different rights that must be cleared: the musical composition right and the sound recording right.  The musical composition right is the right that belongs to the composer(s) of the song.  The sound recording right belongs to the owner of the recording of that song.  For example, if I wanted to play the Glee cast version of “Don’t Stop Believin’ during a podcast, I would need permission from both the Journey songwriters (Neil Schon, Steve Perry, and Jonathan Cain), and from Fox (which owns the rights to that recording).

Even if the underlying song was in the public domain (such as Amazing Grace), if the recording was not also in the public domain (e.g., the Johnny Cash version), then I would still need clear those rights.  Eventually, Adam Carolla switched to a Mighty Mighty Bosstones song for the opening, probably because he is friends with the band and they gave him a free license.

Another common mistake is when someone takes a popular song, writes some funny new lyrics, and plays the new version during the podcast to introduce a segment.  “But wait,” I can hear you saying through the computer. “If I write funny lyrics to a song, then isn’t it a parody?  And aren’t parodies allowed under fair use.”

The answer to those questions are “No” and “Yes.” A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way.  Parodies are allowed under fair use.  But these uses would probably not be considered to be parodies because they do not ridicule the source work.  They merely take the music from the well-known work and add new lyrics. If the new lyrics of the song are not making fun of the song (or sometimes the singer), then it is not a parody.  For example, Weird Al Yankovich had a huge hit in the ’80’s with the song “Eat It” and the accompanying video.  While the song itself, would probably not be considered to be a parody, because it doesn’t make fun of the lyrics to “Beat It,” the video of the song is absolutely a parody and a fair use, because it ridicules the “Beat it” video perfectly.

Another common problem with podcasts is using too much of a song.  For example, on the “Who Charted” podcast, comedians discuss (among other things) the songs currently on the Billboard charts.  During the podcast, they often play 30-second clips from the songs to let the listener know about the song under discussion.  This would almost certainly be considered a “fair use” because the song is being directly discussed and the podcast is only giving the listener a taste of the song. But I have heard other podcasters play two or three minutes of a song (usually in the background), just because a song has been mentioned in passing conversation. While there is no hard and fast rule about how much use is a “fair use”, it is clear to me that if litigation were to arise from some of these uses, a judge would be hard pressed to declare that much use as “fair.”

And for some of the major podcasters, a lawsuit could result in the threat of substantial damages.  Most people are aware that the Copyright Act allows a maximum of $150,000 in statutory damages for willful copyright infringement.  However the truth is that very few people actually want to litigate a case where the only thing at issue is the possibility of statutory damages for one act of infringement.  The reason for this reluctance is that the decision on the amount of statutory damages is entirely up to the jury.  And while the jury may award the plaintiff $150,000, it could give as little as $750. With that big a discrepancy in the possible damage award, it becomes hard to risk the substantial sum of money required to take a copyright case to trial (which can easily be over $100,000).

But what if the damages were easier to quantify?  According to §504 of the Copyright Act, a copyright plaintiff can seek the actual damages suffered by him or her as a result of the infringement.   In the case of a podcast that plays most of a song, the plaintiff may argue that each download of the podcast represents a lost sale.  Since most digital songs cost $0.99 to $1.29, with the seller (i.e., ITunes) keeping 30% of that amount, a case could be made that there is a loss of $0.70 to $0.90 per download.  For the majority of podcasters, who may have a few thousand listeners, the actual damages may still not be enough to draw a lawsuit (although it could draw a letter from the record company).  But for the more popular podcasters, such as Kevin Smith and Adam Carolla, they regularly have downloads of 200,000 to 300,000 for each of their podcasts.  A careless use of a song could result in a claim of actual damages of well over $100,000 (and this does not take into account that they would also be responsible for the record company’s attorney’s fees as well.  With the record business having a harder time each year, it is only a matter of time before they seek damages from podcasters as a means of raising revenue.  Just as Righthaven has pursued a business model of seeking damages from bloggers for minor “infringements” of photographs and articles from the Las Vegas Review Journal, it is only a matter of time before one of the record companies decides to go after a podcaster to get a little extra dough.

So what is a podcaster to do to avoid this problem:

1) Be very careful when using music during your podcast and don’t use it indiscriminately;

2) If you are using music in your intro and outro, make sure it is either cleared, in the public domain, or properly used under a Creative Commons License.

3) When using a part of a song that is being discussed, don’t play more than 30 seconds of the song unless absolutely necessary to make the point.

4) Keep in mind that it’s not considered a parody if all you are doing is writing new lyrics to a popular song.  The song lyrics must make fun of the song itself.  Also, even if it is a parody, you can only take as much of the song as is necessary to make your point.  You probably can’t play the whole song verbatim from start to finish.

Keep these thoughts in mind and you will most probably avoid a lawsuit.



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