FAIR USE: What Constitutes “Publishing” or a “Publication” on Today’s Media Playing Field?
By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Legal Group, Senior Partner
Goodphone Communications, Executive Producer
As the practice of “clip jockeying” becomes an increasingly ubiquitous and taken-for-granted technique in modern audio and video talk media, an understanding of the legal concept “fair use” is vital to the safety and survival of practitioners and their platforms.
When assessing fair use in audio media, courts closely examine the “nature of the copyrighted work,” especially focusing on whether the work is factual or creative, and published or unpublished. Factual content, such as news reports or data, is more likely to be seen as fair use material, as it’s in the public interest to keep factual information accessible. Creative works, like music, fiction, or original performances, often enjoy stronger protection because they embody the creator’s unique expression and should be compensated accordingly.
Unpublished interviews or speeches. When audio content includes unpublished material – such as a speech or interview that hasn’t been publicly released – courts typically approach it with heightened caution. For example, if a podcast includes clips from an unpublished interview with a politician to enhance commentary, courts might scrutinize this more heavily than they would a published work, as the speaker retains significant control over whether and how the content reaches the public.
Case study insight: Salinger v. Random House (1987). The landmark case Salinger v. Random House highlighted how unpublished works generally receive stronger copyright protection. In this case, the use of unpublished letters in a biography was ruled as infringing, emphasizing that unpublished materials hold a unique status in copyright law. If a podcaster today were to use a similarly unpublished interview with a public figure without significant commentary or transformation, they might face greater legal challenges.
Redefining “published” in the digital era. With digital platforms, the meaning of “published” is evolving. Traditionally, a work was deemed “published” when made available for sale, license, or public distribution. Now, sharing content online, even in a limited way – such as within a closed social media group or private online forum – raises questions about whether the content should be considered published. Courts are increasingly aware that limited digital sharing doesn’t necessarily reduce a work’s unpublished protections, but extensive online distribution might.
Modern considerations of online sharing. Courts today analyze factors like control over access and the sharing platform’s nature. For instance, an audio clip shared in a restricted forum might retain its unpublished protections, while a widely posted clip could lose some of those protections. Additionally, when creators post content on platforms like Instagram or YouTube before officially “publishing” it elsewhere, courts may take the creator’s intent and distribution scope into account when determining the content’s legal status.
As online platforms reshape how creators distribute their work, they also impact fair use, pushing courts to reinterpret what it means for a work to be “published.” This evolving understanding means that copyright protections depend not only on whether a work is accessible but also on the level of control over its distribution, especially for audio content.
Media attorney, Matthew B. Harrison is VP/associate publisher, TALKERS; Senior Partner, Harrison Legal Group; 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@HarrisonLegalGroup.com
Today is Election Day in America. Finally! Now the talk media industry is about to learn what’s next? No matter which way the presidential race goes, the results will have a measurable impact on news/talk media’s positioning and strategy going forward for years to come. According to TALKERS publisher Michael Harrison, “That’s what happens when the news media operates within the paradigm of primarily ‘targeting’ audiences based on their pre-existing biases, opinions, and passions. The only objective seeking of truth that takes place within the formulation of media strategy, in this transactional environment, focuses on one basic concern – where does the audience, that we so zealously covet, stand on this?” During an editorial conference this morning, Harrison stated, “The two major media-base ‘camps’ that have emerged in the past decade on talk radio, news/talk TV, YouTube and podcasting, fall under the basic headings of the pro-Trump media industry and the anti-Trump media industry. Yes, both have grown into full-fledged industries – and their interests are deeply entangled. As cynical as this might sound, the deck is about to be reshuffled to one degree or another and talk media industry practitioners are going to have to pull off some fancy steps to avoid sinking into the quicksand of inevitable changes in public opinion – regardless of what shape these movements take.” Harrison adds, “If you’ll pardon the ancient reference, no one wants to be left playing Frankie Avalon and Bobby Rydell records the day after the Beatles’ and their British buddies invaded our pop culture.”
This drop is partly due to selling their Wilmington station and closing some digital businesses. Despite this, Beasley saw growth in digital and political advertising. They earned $1.2 million in operating income this quarter, a significant improvement from last year’s $85.5 million loss, which included large non-cash impairment costs. This quarter’s net loss was $3.6 million, much lower than last year’s $67.5 million loss, as Beasley reduced expenses and interest costs. Digital revenue continues to grow, now making up 19.4% of total revenue. Beasley’s CEO, Caroline Beasley, noted that digital transformation and political ads helped offset challenges in traditional radio advertising. She emphasized ongoing efforts to streamline operations, improve finances, and focus on their digital platforms. To see the full report please 
Toucher, who now co-hosts “Toucher & Hardy“ on 98.5 The Sports Hub, WBZ-FM, Boston took some time on this morning’s show (11/5) to address ”the elephant in the room.” Shertenlieb‘s new show on local classic rock outlet WZLX had been canceled after five months, and Toucher didn’t seem to have any sympathy for his former partner. In a story by reporter Nick O’ Malley posted on the news site MassLive.com, “I hate him,” Toucher said. “So, I was happy yesterday when I heard about this. But I was a little disheartened that he still carries none of the responsibility and takes none of the blame and still just can’t be honest.” Toucher and Shertenlieb co-hosted the “Toucher & Rich” show from 2009-2023, working together to produce one of Boston’s most popular morning shows. However, the show ran into issues in 2023. Toucher missed time due to personal and physical issues, including a stretch of time at an alcohol detox facility. In November, parent company Beasley Media said in a statement that Shertenlieb declined to accept a new contract. On Monday, Shertenlieb announced that he was “disappointed” that his show was being canceled after just five months. The radio host complained that management forced him to “alter the format” of the show by adding music. However, Toucher noted Tuesday that Shertenlieb’s show was a “ratings disaster.” “He not only did not bring in a new audience to that show, he alienated – based on ratings – their entire existing audience,” Toucher said. “He had like a third of the ratings that they got jockless in the morning … Yeah, management might have been a little concerned.” Toucher said that critics can paint the picture of his reaction however they like. But he did note that he and co-host Jon Wallach say they weren’t alone in celebrating the demise of Shertenlieb’s show. To see the complete article in MassLive.com, please 
The Influencer Network leverages the growing impact of HRN’s syndicated personalities on their radio listeners and social media followers. “Radio personalities are the original influencers” says Clark Logan, President of HRN. “Fernando Fiore (a.k.a. Mr. Soccer), Ana Maria Canseco, Riva, (Los 40 USA) and DJ Xtreme are great talents. Their audiences on air and online identify with them while listening to their shows and reading the social posts in a lean-forward fashion. Brands can use association with these influencers to increase awareness and favorability of their brands with consumers.” For more information on the HRN Hispanic Radio Network, contact Clark Logan at 
KUT/KUTX, Austin GM Debbie Hiott has been elected to the NPR Board of Directors by NPR member station peers from across the country. Her term began yesterday (11/4) and runs through 2027. “It felt important to have a seat at the table at a critical time for NPR as it determines how to address challenging audience and underwriting trends, and how it will handle relationships with member stations,” said Hiott. 
“NPR’s health is our health, and vice versa. It’s important that the member stations and NPR work together on solutions to our audience and revenue challenges. I’m hoping I can help contribute to those solutions.”
Audacy names Jonathan Peterlin (pictured above right) as afternoon show co-host on 92.3 The Fan (WKRK-FM) in Cleveland. Peterlin will join co-host Nick Wilson (above left) and be heard weekdays from 2:00 to 7:00 pm ET. Peterlin had previously served as the station’s evening host since 2022. “We believe Jonathan’s addition and presence on the show will bring a unique passion and energy to afternoon drive,” said Keith Britton, the station’s brand manager. “He has shown both the ability and readiness for this move and we are full speed ahead in our commitment to providing our listeners with the most engaging sports talk and entertainment on a daily basis.” “92.3 The Fan and its listeners have been with me through every major chapter of my life, and this station has been a constant presence in my world,” said Peterlin. “Afternoon drive in Cleveland is the pinnacle of what I’ve always aspired to, and I truly couldn’t imagine a better person to share this journey with than my good friend, Nick Wilson. I’m extremely thankful for the chance to continue this journey with the listeners and the team at 92.3 The Fan.”
In response to the recent lawsuit filed against CBS News, the following statement was released by NAB president and CEO Curtis LeGeyt: “A free press must report, inform and scrutinize without fear of reprisal. Frivolous lawsuits aimed at stifling this essential role risk undermining democratic principles and ignore the First Amendment’s protection of how news is reported. NAB stands firmly with our members against any attacks on their First Amendment-protected reporting.”
Hear the demo and register today at 
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.
Take advantage of the new media order. Initially, TiVo was a hit because you could pause live TV and go to the bathroom whenever you wanted. Bathroom breaks while watching live TV was a revelation. As you were going to the bathroom, your relationship with media was being re-wired in your brain. In a matter of months, you were able to watch what you wanted, whenever you wanted. DECADES of TV scheduling strategies became anachronistic. It’s November. Do you know when your favorite shows are airing on TV? No! No need you’ll watch them whenever you want!
WURD Radio Endorses Kamala Harris for President. For the first time in its 20+ year history, Philadelphia’s only Black-owned radio station, WURD Radio has endorsed a political candidate — Kamala Harris for President of the United States. Prompted in part by the decision from owners of the Los Angeles Times and The Washington Post to overrule planned endorsements by their editorial boards, sources at the station tell TALKERS, this decision underscores the importance of independent media ownership. From the endorsement: “Our founder, Walter P. Lomax Jr., M.D., understood that the media has the power to shape perceptions, images, narratives and, most importantly in this election, to tell the truth. He understood that the media can demonize or humanize, destroy or exalt, diminish or elevate. Dr. Lomax knew that mainstream media often marginalizes, caricatures and maligns Black people. WURD is in a unique position to speak honestly and emphatically about what matters most to our community because we are independently owned.” To read the entire text of the endorsement, please 
SiriusXM Tips Off College Basketball Coverage with 74 Games on Opening Night, November 4. SiriusXM will deliver college basketball fans an extensive schedule of live games throughout the 2023-24 college basketball season, starting with a slate of 74 women’s and men’s matchups to choose from when the season tips off this Monday (11/4). The men’s schedule includes all 19 teams from the Associated Press Top 25 that are in action on Monday night, including the season’s first matchup of Top 25 ranked teams – #8 Baylor @ #6 Gonzaga (11:30 pm ET). The opening day schedule of women’s games on SiriusXM includes 12 teams from the Associated Press Top 25 and features a couple of Top 25 matchups – #20 Ole Miss @ #3 USC (noon ET) and #5 UCLA @ #17 Louisville (2:30 pm ET). Throughout the season SiriusXM listeners will get access to dozens of game broadcasts each week involving teams from the SEC, Big Ten, Big 12, ACC, Pac-12, Big East and more.
Newsmax Launches in France on Molotov. Newsmax TV, one of America’s most popular news channels, just launched on Molotov, one of France’s leading TV platforms, as U.S. voters go to the polls to pick their next president. The Newsmax channel went live on Molotov’s platform on October 24, 2024, expanding its global footprint with 19 million Molotov users in France and French-speaking territories. Molotov is one of France’s main TV services offering streaming television to internet users across the nation and its territories. Molotov subscribers can tune to Newsmax via the platform’s free tier.
Cumulus Media Inc. today (11/4) announced operating results for the three and nine months ended September 30, 2024. Mary G. Berner, president and CEO of Cumulus Media, said, “During the third quarter, we delivered revenue and EBITDA in-line with pacing commentary and analyst estimates. Given the market challenges, we maintained our focus on what we can control. Specifically, we continued investing to drive growth in our digital businesses, including in digital marketing services which increased revenue nearly 40% in the quarter; capitalizing on areas of improvement in national and political ad spending; maximizing operating cash flow; and improving operating leverage through ongoing expense reductions.” Berner continued, “Looking forward, the advertising environment remains uncertain. Nonetheless, Cumulus has a valuable set of assets with which to navigate that uncertainty including: profitable and fast-growing digital businesses; a vast national platform that can reach audiences whenever and wherever they choose to listen; extensive feet-on-the-street local sales capabilities which allow us to walk product through the door; premium programming with particular strength in sports and news/talk; an extensive untapped audio library; and a leadership team with a strong track record of expense management and disciplined stewardship of capital. As we continue to execute against our priorities, we see many paths for leveraging these assets to maximize the value they produce for our shareholders.”
