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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

By Walter Sabo
A.K.A. Walter Sterling, Host
Sterling Every Damn Night, WPHT, Philadelphia
Sterling On Sunday, TMN

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!

Now On-demand is the rule of all media.

Liberation from traditional formalities has infiltrated every aspect of our day.. TMZ launched with this editorial rule: Cover NO scheduled events. No press conferences. TMZ cameras lurk in the parking lots and valet tents to capture stars off guard, candid, authentic. Make-up artists and movie set hairdressers, not PR teams, are their primary news sources. By comparison, “Entertainment Tonight” and “Hard Copy” who are obligated to the PR industry look phony, stiff, staged.

Warren Buffet for decades modeled how to behave like the country’s richest man. Stable, sane, professorial. But today’s richest man, Elon Musk is running million dollar a day giveaways to registered voters. He wears t-shirts, dances on stage and has how many kids?

Hoda Kotb quits the “Today Show” …THE TODAY SHOW and no one cares. The quest for a new co-anchor captures no one’s imagination. Compared with the impact of online influencers, TikTok videos and on-demand TV, the “Today Show” looks anachronistic.

A relic.

Four years ago, the millions of workers staying at home would have never thought freedom from the office commute would be possible. Now they can’t imagine why they have to go to the office – because they are at work, on their kitchen table.

• Don’t become BLOCKBUSTER. Today’s trends are becoming surging rivers of thought and behavior. Winning employers will embrace their colleagues with recognition of these changes. Rather than bribing and begging workers back to the old office, they will amp up the tools and support to allow employees to easily produce from anywhere they wish. That means providing better computers, phones, software, and new systems for recognizing performance. Getting-in-early just isn’t going to mean anything. Getting-it-done will be prized.

About your talk station: Three- and four-hour blocks of – BLOCK PROGRAMMING – is the past. Seamless is the future. Seamless talk programming, format driven rather than “my show” driven will grow cume and maximize PPM technology. Hosts will present ideas and entertainment, with other hosts and contributors using techniques that allow for tune-in at any time.

 Consultant Walter Sabo A.K.A. Walter M Sterling has a nightly show “Sterling Every Damn Night” heard on WPHT, Philadelphia 9:00 pm – 12:00 midnight. His syndicated show, “Sterling On Sunday,” from Talk Media Network, airs Sundays 10:00 pm – 1:00 am ET, and is now in its 10th year of success. He can be reached by email at waltermsterling@gmail.com or Sabowalter@gmail.com.

Do people get the media and government they deserve? Is the mainstream press really “fake news” and unfair to the MAGA movement? What are the true threats to American democracy at play in this rapidly changing era?  Lars Larson is this week’s featured guest on the TALKERS MEDIA YouTube video channel’s “Up Close Far Out with Michael Harrison” and the award-winning PodcastOne audio series, “The Michael Harrison Interview.”  Larson, ranked #14 on the 2024 TALKERS Heavy Hundred and approaching his 50^th anniversary in broadcasting, hosts two syndicated versions of his long-running 12:00 noon to 4:00 pm (PT) show on flagship station, KXL, Portland, OR.  One is carried on approximately 26 Radio Northwest Network (RNW) stations in Oregon, Washington, and Idaho.  The other is heard on more than 100 stations across the nation on the Compass Media Networks.  During his illustrious career, Larson has been the recipient of more than 70 awards from the Associated Press, Society of Professional Journalists, and the National Press Club, as well as two Emmys and a Peabody for his reporting and documentaries.  In a candid discussion that covers a variety of contemporary hot button issues, Larson provides the conservative media perspective on the controversial Trump Rally at Madison Square Garden along with his take on mainstream news coverage, in general, of the 2024 presidential race.  The conversation also taps into burgeoning Middle East tensions, social media, artificial intelligence, the state of journalism, the First Amendment, privacy rights, the power of TV to distort reality, plus the tenets of Marxism, Naziism, socialism, and capitalism, as well as the unique political makeup of the Portland area.  Don’t miss this!

To view the video in its entirety, please click here.

To listen to the audio version in its entirety, please click here. MHInterview.com

By Holland Cooke
Consultant

Possibly not — beginning Sunday — unless you live in Hawaii and Arizona (except the Navajo Nation) or American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Everywhere else, clocks will change when we “fall-back” on November 3.

By Holland Cooke
Consultant

Possibly not — beginning Sunday — unless you live in Hawaii and Arizona (except the Navajo Nation) or American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, or the U.S. Virgin Islands. Everywhere else, clocks will change when we “fallback” on November 3.

It’s uncanny how just that one-hour shift impacts listeners’ lives. So, it’s a BIG topic of conversation. Plan now to empathize with the emotional and practical adjustments they’re confronting, including…

Increased Morning Light:

• Positive: With the clock set back, it becomes lighter earlier in the morning, which can help people wake up more easily and feel more alert, especially for those who need to start their day early.
• Negative: For people who start their day later, they may not notice much of a change, but the adjustment period can still be disruptive.

Shorter Evenings:

• Positive: The extra hour of light in the morning might be useful for early morning commuters, outdoor activities, or children heading to school.
• Negative: On the downside, the sun sets earlier in the evening, meaning it gets dark sooner. This can affect evening activities and make commutes home feel less pleasant or even more dangerous due to reduced visibility.

Disruption to Sleep Patterns:

• Positive: The “fall back” of the clock gives people an extra hour of sleep, which many enjoy.
• Negative: Some people experience disrupted sleep patterns and may feel temporarily groggy as their bodies adjust to the new time.

Health and Mood:

• Positive: For some, the extra morning light can improve mood and reduce symptoms of Seasonal Affective Disorder (SAD).
• Negative: The early evening darkness can lead to feelings of fatigue, a drop in energy levels, or contribute to “winter blues” or SAD. especially as daylight becomes limited.

Impact on Productivity:

• Positive: People may feel more productive in the morning due to earlier sunlight.
• Negative: However, the earlier sunset could reduce motivation to engage in activities after work or school, potentially leading to a decrease in evening productivity.

Safety Considerations:

• Positive: More daylight in the morning can make commuting safer for drivers and pedestrians during rush hour.
• Negative: With darker evenings, there’s an increased risk of accidents, especially for people who are walking or biking.

Energy Consumption:

• Positive: Energy usage patterns may shift because of less artificial light being used in the morning.
• Negative: However, people tend to use more lighting and heating in the evenings, which may counterbalance the potential energy savings.

Impact on Schedules:

• Positive: Some people enjoy having the extra hour in their day when DST ends.
• Negative: For parents and workers, adjusting children’s or personal routines to the earlier darkness can be challenging.

What’s a radio station to do?

• Bump with or play songs related to time (Cyndi Lauper “Time After Time,’ Cher‘s “If I Could Turn Back Time”).

• Explain the history of DST.

• Ask listeners’ opinions on DST. Do they love it or hate it? You’ll hear both.

• “How will you spend your extra hour?”

• Give away nostalgic items (like retro vinyl records or vintage tech).

• Sleep tips from health professionals and mental health experts.

• Advertisers offer “10% off for the extra hour! Sale only valid from midnight to 1:00 am.”

• Coffee or breakfast gift card giveaways.

• Pertinent commercial copy hooks, i.e., “It’s time for a new ___!”

And please note: It’s “Daylight Saving Time,” not “Daylight Savings Time.”

Holland Cooke (HollandCooke.com) is a consultant working the intersection of broadcasting and the Internet. Follow HC on Twitter @HollandCooke and connect on LinkedIn

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

The “Amount and Substantiality” factor in fair use assesses both the quantity and quality of copyrighted material used – how much is included and whether it contains the most significant, or “heart,” of the original work. Courts often find smaller, less central portions more defensible under fair use, but this varies by context. Using a memorable chorus or key line can weigh against fair use, even if only a small amount is used. For media creators, especially in radio and related forms of broadcasting, fair use is more likely to apply when portions are brief, non-central, and contribute transformative commentary or critique. This is the fourth installment of a multi-part TALKERS Legal Series on Fair Use for the Media Creator. The first installment is here. The second installment is here. The third installment is here.  To read this fourth installment, please click here.

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

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

With the growing popularity of talk media programs utilizing segments of other shows as key elements of scrutiny and commentary in their programming (“Clip Jockey Format” as coined by Michael Harrison), it is important that media content creators be aware of the subtle and often ambiguous rules applying to the legal aspects of this practice under the heading of fair use.

This is the fourth installment of a multi-part TALKERS Legal Series on Fair Use for the Media Creator. The first installment is here. The second installment is here. The third installment is here.

The “amount and substantiality” factor in fair use focuses on how much of the copyrighted material is used and whether that portion is essential to the original work. Despite seeming obvious, this factor can be nuanced, and determining how much use is fair can be challenging because it’s not just about the quantity but also about the significance of the portion used.

Is It Difficult to Distinguish?

In many cases, it’s not always obvious what qualifies as a “small” or “insignificant” portion. Courts often consider both the quantity, and the quality of the material used:

• Quantity: This factor asks if only a small part of the work has been used. Using a shorter clip from a video or a few sentences from a book could be more justifiable as fair use. But what qualifies as “small” can vary depending on the work—10 seconds from a short film may be seen differently from 10 seconds in a longer documentary.

• Quality: Even if a creator only uses a small part of the original work, using its “heart” or most memorable part might still count as substantial. For example, a few lines from a song’s chorus, though short, could be considered significant enough to impact fair use status.

Example Cases Highlighting Amount and Substantiality

To better understand this, it’s useful to look at cases that illustrate when the amount used was deemed fair or not:

• Harper & Row v. Nation Enterprises (1985): This case involved a magazine that used a few hundred words from an unpublished memoir by President Gerald Ford. Although this was a small percentage of the memoir, the excerpt contained key insights into Ford’s decision to pardon Nixon. The court held that this use was not fair because it included the most “substantial” and critical part of the memoir, even though the total percentage of text used was minimal.

• Campbell v. Acuff-Rose Music, Inc. (1994): Here, the hip-hop group 2 Live Crew used portions of Roy Orbison’s song “Oh, Pretty Woman” to create a parody. Even though the song’s recognizable parts were used, the new work was transformative in its purpose (a parody rather than a love song). Because the group’s use was a small part relative to the song’s total content and had a new purpose, the court found it was fair use.

Many books and law school classes have been devoted to this question – so let’s focus on Application in Media and Broadcasting

In radio and broadcasting, this factor is often relevant when using clips, songs, or interview segments from other sources. Using a small clip to support commentary or criticism is more likely to be considered fair use, especially if it does not contain the “heart” of the original work:

• Commentary on a Speech: If a talk show uses a brief part of a public figure’s speech to critique it, the fair use factor may weigh in favor of the radio station if it doesn’t take the most memorable segment.

• Use of Music in Shows: Music clips used for thematic transitions or commentary must be kept brief, as lengthy or highly recognizable parts can affect fair use status. Playing just a few bars might qualify, but a chorus or instrumental hook would likely cross the line. This is less of a mine field in traditional broadcast radio as existing license agreements, such as with ASCAP or BMI, may allow for such uses anyway. However, when focusing on the internet – it’s a completely different matter as no licenses have been formally given, yet there is an incentive for the copyright holder to have their work shared. It’s not cut and dry – which is why the following takeaways should be helpful when navigating forward.

Key Takeaways for Media Creators

• Use Minimal Amounts: The less you use, the more defensible your case for fair use, especially if you avoid the most recognizable parts.

• Avoid the “Heart” of the Work: Select portions that serve your purpose without including critical or memorable parts of the original material.

• Transformative Purpose Matters: If the use adds new meaning or serves a different function (e.g., satire, critique), it’s more likely to be deemed fair, even if it includes some key elements.

Summary

Understanding how much of the work a media creator can use while staying within fair use guidelines can be tricky, as this factor requires balancing quantity and significance. Media creators should focus on minimal use that contributes meaningfully to commentary, criticism, or other transformative purposes.

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

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

This is the third installment of a multi-part TALKERS Legal Series on Fair Use for the Media Creator. The first installment is here. The second installment is here.

The “Nature of the Copyrighted Work” is a key factor in fair use analysis, with courts more likely to allow the use of factual works, such as news reports, than highly creative works like music or films. The landmark case Feist Publications, Inc. v. Rural Telephone Service Co. established that mere facts, like telephone numbers, cannot be copyrighted unless presented with originality. In media, factual content like news clips may support a fair use defense, while creative works like syndicated talk shows are more protected. Broadcasters should add commentary or criticism when using factual material and be cautious when reusing creative content. Understanding this factual-creative spectrum is critical for media creators navigating copyright law.

In the context of fair use, courts are more likely to allow the use of factual works, such as news reports, historical accounts, or other informational content, than highly creative works like songs, movies, or artwork. The theory behind this is that factual works generally serve a public interest – society benefits from the free exchange of information and ideas, and we want “the system” to encourage this. On the other hand, creative works involve more personal expression, and copyright law is designed to protect that artistic effort (and allow for monetization thereof.)  This distinction plays a crucial role in determining fair use, as courts are more protective of creative works because they represent a higher degree of originality and personal investment.

Classic Case: Feist Publications, Inc. v. Rural Telephone Service Co. (1991)

A landmark case that helps illustrate this factor is Feist Publications, Inc. v. Rural Telephone Service Co., which asked whether copyright protection could be applied to a seemingly factual work: a telephone directory. In this case, Rural Telephone Service Co., a public utility, created a telephone directory of its customers’ names, addresses, and phone numbers. Feist Publications, a company that produced a larger, regional telephone directory, copied some of these listings and was sued by Rural for copyright infringement.

Rural argued that its directory was protected by copyright, but Feist countered that the information in the directory (names, addresses, and phone numbers) was purely factual and, therefore, not eligible for copyright protection.

The Supreme Court ruled in favor of Feist, stating that facts are not protected by copyright because they are not original to the author. The Court held that Rural’s directory did not qualify for copyright protection because it lacked creativity and originality – it was simply a compilation of facts (names and numbers). The case established the principle that mere facts are ineligible for copyright protection, even if they are compiled in an organized way.

This case is significant because it underscores that factual information, like a telephone directory, cannot be copyrighted unless there is a creative element involved in its presentation, such as an original selection or arrangement of the facts.

Application to Radio and Media:

When it comes to radio, news, or media content, the nature of the copyrighted work often comes into play, especially in cases where factual content (such as news clips or interviews) is being reused. Courts may treat factual works more leniently in fair use cases, allowing them to be repurposed for commentary, criticism, or reporting, as they serve a public interest. However, creative works, like talk shows, are given more protection because they represent original artistic expression. The more creative the work, the less likely its unauthorized use will be considered fair use.

An Example – Associated Press v. Meltwater U.S. Holdings (2013)

While not specific to radio, this case highlights the issue of using factual content in media. Associated Press (AP) sued Meltwater, a news aggregation service, for copying parts of AP’s news articles and distributing them without permission.

The court found in favor of the Associated Press, stating that even though AP’s articles contained factual information, they were written with creativity and journalistic skill – thus, they were still copyrightable. The nature of the work was not purely factual, as it involved a degree of originality in the writing and presentation.  This case illustrates that while factual works may be more likely to fall under fair use, their specific presentation or creative treatment can still be protected.

Radio Case Example: Syndicated Content and Commentary

A case that touches on the nature of copyrighted works in radio can be seen in disputes over syndicated talk shows or political commentary. Stations that rebroadcast these shows without proper licensing agreements may argue fair use, but their success often depends on whether the work being used is factual or creative. For example, if a station replays a news clip or political speech, the fact that the content is factual might support a fair use defense. However, if they replay a syndicated talk show where a host offers personal opinions or creative commentary, it would be considered a more creative work, requiring higher protection. In some cases, radio stations have argued that the rebroadcasting of certain content (like portions of interviews or speeches) qualifies as fair use because it’s factual and in the public interest. Still, if the content also involves a unique editorial style or commentary, the courts may treat it as more creative and therefore not subject to fair use.

Practical takeaways for media creators:

• Factual vs. creative: When considering whether fair use applies, broadcasters should analyze whether the content they’re using is more factual or creative. Factual works (such as news reports) are more likely to be protected by fair use, while creative works (like music or dramas) are less likely.

• Add commentary or criticism: Even when using factual content, it’s crucial to add commentary, analysis, or criticism to support a fair use defense. Simply republishing factual material without transformation can still lead to copyright infringement.

• Be mindful of syndicated content: Syndicated content, such as talk shows, often involves a mix of factual information and creative opinion. Replaying such content without proper licensing can lead to legal challenges, as courts may view this as a use of creative work.

The nature of the copyrighted work plays a crucial role in fair use analysis. While factual works are more likely to be used under fair use, creative works enjoy stronger protection. Media creators, including broadcasters and radio stations, need to be aware of this distinction and ensure that their use of copyrighted material is both transformative and legally defensible. By understanding the factual-creative spectrum, media creators can better navigate the complexities of copyright law.

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

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

As a media creator, incorporating copyrighted material, such as video clips or actualities, into your content can enhance your message. But when using someone else’s work, you need to consider fair use, a legal principle that permits limited use of copyrighted material under certain conditions – without needing permission from the copyright holder. Understanding when and how you can safely use this material is critical to avoiding costly liability – whether it’s a copyright strike or complicated copyright litigation.

What is fair use? Fair use is the legal principle that allows copyrighted material to be used without permission for purposes above and beyond the original version – like criticism, commentary, news reporting, education, or parody. It’s not an absolute right but rather a defense you can claim if challenged. Courts assess fair use based on four key factors, all which creators should carefully consider.

Purpose and character of the use.  Is the use of the material transformative? This means that you’re adding something new or giving it a different purpose than the original, rather than just copying it. This is more likely to be allowable. On the other hand, simply reposting someone else’s video with little change is not transformative and could be seen as infringement.

Nature of the copyrighted work.  Not all content is treated equally under fair use. Factual works (such as news reports) are more likely to be subject to fair use than creative works (like movies or music videos). Why? Courts recognize that creative works often involve a higher level of personal expression, so they deserve more protection. Plus, society has an interest in being able to quickly disseminate news and other important information – therefore, facts generally have little to no protection themselves.

Amount and substantiality. The more of the original work you use, the less likely it is to qualify as fair use. Using a brief clip or excerpt is more defensible than using an entire segment or the “heart” of a work, which is often the most memorable or critical part. This becomes less of an issue when using factual material, though immediately can get complicated if the material being used is someone elses opinion and commentary. This is where taking less is going to be more – in terms of preventing potential liability.

Effect on the market. If your use of the copyrighted material could replace the need for the original courts are more likely to see it as infringement. In other words – is your use of the material taking money out of the pockets of the original creator? This isn’t a moral judgement but purely an objective analysis. If your use does not impact the market for the original work, such as in a news or educational context, it’s more likely to fall under fair use.

Practical Takeaways for Media Creators

Use brief excerpts, not whole segments. The less you use, the more likely it’s fair use.

Make sure your use is transformative. Add commentary, criticism, or parody to distinguish your work from the original.

Be mindful of market impact. Avoid using copyrighted material in a way that competes with the original.

Credit is not enough. Even if you give attribution, it doesn’t exempt you from potential liability. Fair use depends on how you use the material, not just on crediting the original creator.

While fair use provides flexibility, it’s crucial to apply it carefully. When in doubt, consult with legal counsel to ensure your content remains within legal bounds.