This sixth installment in our ongoing series on fair use focuses on the application of the law in modern and complex scenarios.
Using audio or video clips created by others often involves complex copyright considerations, especially as fair use law doesn’t automatically protect unauthorized use of media content. Cases of podcasting and talk show infringement have shown that even short clips can trigger copyright issues if they’re used in a way that substitutes the original work or diminishes its market value. It certainly can trigger flags when scanned by an algorithm.
Creators often and mistakenly believe they can legally use short clips if they’re under a specific length (often thought to be 30 seconds), but in reality, no such rule exists. Even brief clips can infringe if they are used without transforming the content or if they impact the original work’s market potential. In this vein, legal experts recommend that podcasters and media creators obtain clear permissions or licenses when using audio clips from other shows or content sources. This is especially pertinent in podcasting, where fair use is limited and can quickly lead to legal complications without the proper usage guidelines or transformative context, such as commentary or criticism.
For example, in Napster-related cases, where the focus was initially on music, courts have generally ruled against using protected content, focusing on whether the use directly impacts the market or presents a substitute for the original work. Similarly, podcasters have faced claims when broadcasting segments of popular music or clips without the required permissions, even when they used only a few seconds. To mitigate risks, media creators should consider alternatives like royalty-free audio sources or secure direct permission from copyright owners, particularly when using media that does not contribute new, critical commentary to avoid copyright liability.
Several recent copyright infringement cases have involved YouTubers and podcasters. Some cases focus on using music without obtaining necessary licenses. For example, podcasters must often secure more than just a basic ASCAP or BMI license to use music tracks, as these don’t cover all usage rights. Failing to do so has led to infringement claims against podcasters who assume that crediting a musician or using only a few seconds of a track falls under fair use, which is not always the case. Many amateur podcasters and content creators mistakenly think brief use is permissible, overlooking the need for comprehensive music licensing to avoid legal issues.
Another example is the widely reported allegations of copyright infringement in the true crime podcast sphere. Shows like “Crime Junkie” faced accusations of copying research verbatim from other sources without proper credit, highlighting the broader issue of plagiarism and copyright misuse in podcasting. Many true crime podcasts rely heavily on sources without clear attribution, leading to disputes and potential litigation due to copyright and ethical concerns. The decentralized nature of podcasting platforms makes enforcement challenging, though the legal stakes continue to rise with the medium’s growth.
These cases underscore the importance of understanding and securing permissions in podcasting and online media, especially as the medium becomes more professionalized and competitive.
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