By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer
Let’s continue our ongoing series of articles about fair use. A recent case highlights fair use considerations in audio media and podcasting, particularly concerning music and short audio clips used in intros, where some creators assume that brief snippets automatically qualify as “fair use.” Legal experts clarify that using a song clip, even if brief, doesn’t inherently meet fair use criteria. Courts have emphasized that fair use hinges not just on brevity but also on factors like purpose, nature, and market impact on the original work. Music clips, even short ones, are often seen as significant portions of the original content, carrying substantial value, making unauthorized use in podcasts or similar formats legally risky.
The concept of “transformative use” is crucial in fair use evaluations; content must add new meaning or context to the original rather than simply reformatting it. For instance, the landmark 2 Live Crew case involving their parody of Roy Orbison’s “Pretty Woman” underscored that transformative uses might still face challenges if they impact the original’s market value. This demonstrates that merely placing music in a new setting doesn’t automatically render it transformative.
To mitigate risks, media creators often incorporate shorter clips alongside commentary or critique, which tends to align more closely with fair use. Collaboration or seeking permissions can often be a more practical approach to using impactful content without risking costly legal disputes. Legal sources, including Loeb & Loeb, emphasize that while fair use is an evolving area, obtaining permissions—or using royalty-free alternatives—is often the most straightforward route for creators.
A recent example in Thiccc Boy Productions v. Swindelle illustrates these principles in action. Swindelle, a YouTube creator, used clips from Thiccc Boy Productions’ podcast, hosted by Brendan Schaub, in his reaction videos, asserting a fair use defense due to added commentary. The court ruled in Swindelle’s favor, noting his commentary was transformative and unlikely to harm the original podcast’s market. This decision aligns with trends following Warhol Foundation v. Goldsmith, which clarified that “transformative” uses must contribute clear commentary or critique to meet fair use standards rather than merely repurposing the original.
For today’s media creators, consulting legal guidance before integrating copyrighted material is crucial as copyright law adapts to new digital contexts.
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