By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer
As media creators in radio and podcasting explore ways to legally incorporate external audio, the fair use factor of “purpose and character” is crucial. This factor assesses whether the use is “transformative”—adding new expression or meaning—or merely reproduces the original’s essence, potentially infringing on copyright.
Examples from popular platforms provide guidance. Podcaster Joe Rogan, for instance, often uses clips to build commentary and analysis, which could support a fair use defense due to its transformative nature (though others may argue the additions don’t significantly alter the original). Defining “transformative” is challenging, especially when the original creator disagrees on whether substantial new meaning has been added.
Transformative use in podcasts. In podcasting, many creators use news clips or sound bites to provide commentary or critique, adding analysis or humor that can help support a fair use claim. For example, “The Joe Rogan Experience“ has used various clips and video snippets with added commentary. While Rogan’s show hasn’t faced significant legal challenges for these uses, adding commentary could bolster a fair use defense.
Hypothetical: satire on a radio show. Consider a radio show that incorporates political speech snippets for satire. If the use is genuinely transformative, adding new expression or meaning, it may meet fair use standards. However, the line is thin, especially if the clip isn’t significantly altered. Precedents like Campbell v. Acuff-Rose Music, Inc. inform how courts may handle parody and transformation in fair use.
Example: news clip commentary in political podcasts. Political podcasts like “The Daily” from The New York Times often use brief clips to provide in-depth commentary on current events. For instance, they might use a clip from a politician’s speech to add a critical or alternative perspective. In such contexts, courts are more likely to view the use as transformative, particularly if it builds on or challenges the original content. These scenarios illustrate the balance media creators must strike in using third-party audio. Whether adding commentary, satire, or criticism, the goal is to transform the original content meaningfully, beyond simple replication. Understanding fair use’s “purpose and character” factor helps media creators leverage third-party content responsibly, aligning with legal standards.
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