Inside Podcasting - February 11th, 2020

Inside Podcasting (Feb 11th, 2020)

Fair Use: Readers Weigh In


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Dear Reader,

As some of you may remember from Friday's issue, an incident between Wondery and Rich Roll triggered a debate over what constitutes "fair use" in podcasting (two minutes of uncredited tape from a Roll interview were included in Wondery's new show WeCrashed). Many of your fellow readers wrote in with thoughts and personal stories related to the matter. We are including a selection of those responses in today's "mailbag" issue.

As I mentioned Friday, Roll told me in an interview that he believes Wondery CEO Hernan Lopez was genuine in his apology and acted without malice. However, the two disagree strongly about what constitutes "fair use."

As always, thanks for reading, and for writing back with your thoughts. We love hearing from you.

Skye

I'm glad you're highlighting the fair use piece; I have always found it's quite hard to define, [especially] in relation to length and what people consider "commercial use." As well as crediting, perhaps it's unrealistic, but I would love if people were given a heads up when their content is used, [especially] in podcasting, for attribution purposes. We all know how hard it is to gauge where you're listeners are coming from, how they found your show etc. If a big shop like Wondery plays a clip from a smaller show, the latter will likely see a spike and it's so wonderful to be able to know where that comes from.

— Anna Phelan, TED

I think in the fair use discussion there needs to be some consideration of value. Does the maker who is using someone else's material think it is of value?  If so, they should be prepared to pay something for [their] use. If not, they should be prepared to drop it from the production. 

Related, the producer of the original material may have taken some pains to create or gather it. Perhaps they have spent time and money recording an exclusive interview with a person who rarely does media. Perhaps the creator has written a script with a memorable or inventive turn of phrase. For another party to claim this as fair use seems...unfair.

Neil Sandell, Canadian journalist, radio producer

I'm dealing with a fair use issue right now myself with a client - I think what bothers people the most is when they're just not consulted at all and are surprised to hear or see their content reproduced elsewhere, especially if ad revenue is being collected. Maybe I'm being naive, but it seems like some of these disputes could be avoided by clear upfront communication between the creator and the party that wants to use their content, rather than discussing it after the fact.

— Anonymous industry professional

I’ll let those with more experience around fair use weigh in on its legal protections. What I will offer, however, is that when we reuse materials created by others, we follow the spirit, as well as the letter, of the law. With deadlines looming and all the other details swarming, it’s so easy to get caught up in a project and forget to send that email or make that call to discuss reuse with s/he who created the original material—whether or not that reuse requires actual permission. Take a few minutes to do for others what you hope they’d do for you.

— Richard Banks, podcast producer

I had a predicament with the BBC in 2017, when they cut pieces of an interview from the Allusionist into their show and made it sound like the hosts had interviewed him. No attribution in the show, in their credits or on their site, and I only found out because I got an email from the interviewee sounding upset because he didn’t remember talking to those people.

Cue some emails where whichever minion handles complaints to that department just said like, “Sorry for any confusion caused!” which, sir, NO CONFUSION

But then after I did some bitter Twitter, the execs got in touch, quite embarrassed because it’s VERY unusual for the BBC - they have a blanket license, so they’re covered to use pretty much anything from movies, tv, music, etc.

But that did NOT cover my material

I knew enough people inside the BBC to hear that they were really shitting themselves about it!

All I wanted was attribution (I would have totally given them the material for free if they had only asked first!), but they took the thing down, and they paid me a fine.

The fine was significantly less than the amount they demand if you’re using BBC material, which costs like £48 per second.

Anyway, I don’t think they would have made that mistake had it been material from something that wasn’t a podcast, so I felt kinda disrespected by that, and the staff trying to make me believe that it was my fault for being annoyed by it.

Helen Zaltzman, The Allusionist

It's not fair use. [Not] from a lay perspective nor a legal one. If you took video of an interview with the WeWork founder and then I made a documentary about the fall of WeWork and I used several minutes of that video, cut you mostly out of it, then used it in a commercial production which I then sold tickets to screen, and you were in the theater, would you not think "hey maybe I should have gotten some of this cash"?  After all, you literally made part of my movie at your expense, made it available to the world, and then I took it and used it in my own production, in the same way, except I'm charging.

For that, you need a license. This is why there are licenses. If you use creative commons, the most common license is "non-commercial, with attribution." This use-case was COMMERCIAL, without attribution, and without royalty. That violates fair use, and even violates GENEROUS interpretations of fair use because of the commercial nature of the product. It's not exactly the same circumstances, but it's pretty darn close.

— Anonymous podcaster + lawyer

In the U.K. a statutory definition for fair dealing does not exist; it will always be a matter of fact, degree, and interpretation in every fair use case. It's slightly semantic as it is called fair dealing here, but the key is the law will be different in every country.

Euan McAleece, radio and audio maker, podcast consultant

Note: McAleece pointed me to this resource on Fair Dealing, and this story, which covers the difference between copyright in the U.S. versus Australia. 

And Passer Vulpes' Erin Kyan writes:

No such thing as fair use in Australia; we have something called "fair dealing," but it's massively different and way more strict.

US copyright law does attempt to balance the public good with creators' ability to profit off their own work, but it's not correct that fair use is about giving "other creators opportunities to use copyrighted material when they are making something new that incorporates or depends on such material." Fair use is intended to cover things like criticism, parody, teaching, research, and some forms of journalism/commentary, that's a very different proposition from using someone else's interview tape without asking or even crediting them. It's also noteworthy that in mentioning the Copyright Act's 4-point test, the document Lopez referenced only actually talks about two parts of it: whether the derivative work is transformative and how much of the original work is used. That leaves out the other two factors, which are not actually less important: the nature of the copyrighted work, and the effect of the use on the market value of the copyrighted work. And even if transformation were the most important factor in a fair use ruling, splicing someone else's interview tape into your own show is not actually transforming the work. It's just using the work again to do the same thing it originally did.

Mike Sakasegawa, LikeWise Fiction, Keep the Channel Open

As podcasting expands globally it'll be interesting to see how different countries deal with copyright questions. In France for example, new regulations have been passed by the SACEM organization for author's rights to protect original musical compositions and their use in podcasting. It was announced at the salon de la radio this past January and is the first step toward regulating what seems to be a murky space for creators.

Lory Martinez, Studio Ochenta

Using someone else's work without attribution is unacceptable unless the work is clearly marked as creative commons or public domain.  In the information age, it is nearly impossible to go undetected, particularly if you are a for-profit podcast.  I have a hobbyist podcast and make sure I put the news stories we cover in the show notes, as well as mentioning the source on the podcast. 

John Kostuch, CentreSteer Podcast

This newsletter was written and curated by podcast junkie and recovered publicist, Skye Pillsbury. Over the years, Skye has crafted digital media strategies for brands like Yahoo! and Microsoft and worked regularly with media outlets such as the New York Times, Rolling Stone and NPR. Skye was famous for 49 minutes when she and her son were featured in an episode of Gimlet Media’s Heavyweight podcast. Follow her on Twitter @SkyePillsbury.

Edited by Sheena Vasani, staff writer at Inside.


We're at work on Season 2 of the Inside Podcasting podcast and hope to have more to share soon. In the meantime, you can catch up on the first season which included interviews with:

Ian Chillag, the creator of Everything is Alive 

Jessi Hempel, who hosts Linked In’s podcast Hello Monday

Martine Powers, who hosts Post Reports from the Washington Post 

Leon Neyfakh, the co-creator of Slow Burn, who is now the host of Fiasco 

Madeleine Baran, the investigative reporter behind In the Dark

and Inside CEO Jason Calacanis, who hosts This Week in Startups

You can find the show wherever you get your podcasts. Let us know what you think!

This newsletter was written and curated by podcast junkie and recovered publicist, Skye Pillsbury. Over the years, Skye has crafted digital media strategies for brands like Yahoo! and Microsoft and worked regularly with media outlets such as the New York Times, Rolling Stone and NPR. Skye was famous for 49 minutes when she and her son were featured in an episode of Gimlet Media’s Heavyweight podcast. Follow her on Twitter @SkyePillsbury.


We're at work on Season 2 of the Inside Podcasting podcast and hope to have more to share soon. In the meantime, you can catch up on the first season which included interviews with:

Ian Chillag, the creator of Everything is Alive 

Jessi Hempel, who hosts Linked In’s podcast Hello Monday

Martine Powers, who hosts Post Reports from the Washington Post 

Leon Neyfakh, the co-creator of Slow Burn, who is now the host of Fiasco 

Madeleine Baran, the investigative reporter behind In the Dark

and Inside CEO Jason Calacanis, who hosts This Week in Startups

You can find the show wherever you get your podcasts. Let us know what you think!

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