By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer
This fifth installment in our ongoing series on fair use focuses on the evolving balance between “exposure” and “value” in copyright law. In today’s online landscape, where content can go viral in minutes, understanding how fair use interacts with both the exposure and potential value of a work is essential. Historically, copyright law was primarily concerned with direct economic loss to the creator. However, the digital age has complicated this assessment, as courts now weigh both actual and speculative impacts on value within the marketplace. In era of the “clip jockey,” an understanding of this process by content creators is important for maximizing productivity while protecting against legal liability
Traditionally, content creators have given limited, controlled access to their work to build exposure without sacrificing value. This is why book publishers release short excerpts and make authors available for interviews, and record companies still promote their catalogs to radio (to a shrinking degree). Samples pique interest – driving consumers to buy the full product.
Yet, the digital era’s ease of sharing means content can quickly reach unintended audiences, raising questions about whether free exposure undercuts a work’s market value or creates new opportunities. This “exposure versus value” debate is central to fair use assessments. Courts now analyze whether a use is likely to draw attention to the original work or harm its value by becoming a substitute. Cases involving free or widely available online content are particularly complex, as exposure can either build market value through increased interest or diminish it if users no longer seek out paid access.
For media creators, especially those sharing content across radio and like digital platforms, there’s an ongoing balance between gaining exposure and preserving market value. Often, sharing content for free – such as clips, audio actualities, or visual teasers – can build audience interest, potentially attracting new listeners and expanding reach. This can increase demand for exclusive offerings, like live events, syndication rights, or special behind-the-scenes content, creating revenue streams beyond the initial broadcast.
However, this approach comes with risks. Freely available content can be reshared or downloaded repeatedly, sometimes reducing the perceived value of premium or exclusive offerings. For example, if listeners can consistently access full episodes or exclusive interviews online for free, the incentive to subscribe or tune in live may decrease. Additionally, as media content circulates online, its use in commercial contexts or by other broadcasters could directly impact revenue opportunities.
Media creators must therefore be strategic: offering just enough free content to attract new audiences without saturating the market to a point where exclusive content loses its value. Key strategies include:
• Selective Sharing: Releasing short clips or highlights rather than full episodes, encourages audiences to seek out complete content through official channels. The motion picture trailer is time-honored example of this process.
• Staggered Availability: Providing exclusive or early access to high-value content, like interviews or commentary, can drive subscription or advertising revenue before wider release.
• Distinctive Content: Offering unique, subscriber-only features or live commentary that listeners can’t find elsewhere maintains exclusivity and market value.
By thoughtfully balancing exposure and value, media creators can leverage free content as a tool for growth while preserving avenues for future revenue and avoiding lawsuits.
Media attorney, Matthew B. Harrison is VP/associate publisher, TALKERS; Senior Partner, Harrison Media Law; and executive producer, Goodphone Communications. He is available for private consultation and media industry contract representation. He can be reached by phone at 724-484-3529 or email at matthew@harrisonmedialaw.com