CLIPPING JUSTICE: Fair Use in Media Creation
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
Journalism is alive and well within certain college radio circles. On Election Night (11/5), the WRFH/Radio Free Hillsdale 101.7 FM student broadcast team hosted live coverage from the Searle Center on Hillsdale College’s campus in Hillsdale, MI and invited students, faculty, and staff to attend and watch election results roll in and listen to analysis. Student anchors were joined by the presidents of Hillsdale College Republicans and Hillsdale College Democrats, three members of the Hillsdale faculty, a candidate for the Michigan State House, a candidate for the Michigan Supreme Court, and reporters from the Detroit News, the Daily Caller, the Center Square, and the Daily Signal. Back at the WRFH studios, the station’s news team worked to update listeners with results from state and local races all night long. More than 200 people came out to the broadcast in action. WRFH GM Scot Bertram tells TALKERS, “It was a home-run event! Students work hard to prep for this quite unpredictable night. There’s an enormous amount of planning and research involved to set everything up. Then the night unfolds, and they realize it’s a ton of fun, as well. I’ve heard from more than a few students who took part in our previous Election Night events that it’s one of their best experiences on campus and really drew them deeper into the journalism program here at Hillsdale.”
The Broadcasters Foundation of America has launched its annual Year-End Giving Campaign, which seeks to raise donations from tax-deductible personal contributions to the Guardian Fund and corporate contributions to the Angel Initiative. The Broadcasters Foundation, a 501c3 charity, is the only charity devoted exclusively to helping colleagues who are in dire need of monthly or emergency financial assistance due to life-altering illness or a disaster. “We are devoted exclusively to providing aid to colleagues in broadcasting who are suffering from extreme illness, or hardship from a devastating disaster,” stated Tim McCarthy, president of the Broadcasters Foundation. “We also take care of colleagues who have retired. Grants are supported solely by contributions from individuals and companies within our industry and offer a ‘hand-up’ to our colleagues during trying times. We’re asking everyone in broadcasting to please consider including the Broadcasters Foundation in your 2024 charitable giving.” Over the past 20 years, the Broadcasters Foundation has distributed over $15 million in aid to colleagues nationwide, across all states and territories, who need it most. “Requests for aid continue to grow exponentially as more of our peers and their families are affected by severe illness or disasters, such as the recent flurry of destructive hurricanes,” explained Scott Herman, chairman of the Broadcasters Foundation. “Whether it’s a monthly grant or one-time aid in response to an emergency, the Broadcasters Foundation is often a refuge and beacon of hope for colleagues whose lives have been upended by unforeseen and tragic circumstances. Please consider a donation. Donations go directly to helping our colleagues who are in desperate need.” For more information about the Broadcasters Foundation, including how to apply for aid or make a donation, visit 
These episodes feature Chachi’s special guests Al Roker, longtime weatherman on NBC’s The Today Show and co-anchor of the iconic morning show’s third hour, and Patsy Smullin, owner/president of California Oregon Broadcasting, and host of the successful television interview series, Up Close and Personal. Roker and Smullin will be among those honored next week as Giants of Broadcasting by the Library of American Broadcasting Foundation at the 2024 Giants of Broadcasting & Electronic Arts luncheon and awards ceremony. The event will be held on Tuesday, November 12th at Gotham Hall in New York City. To listen to these new “Chachi Loves Everybody” podcast episodes, please 
more than 10,000 employees, a source with knowledge said, amounting to hundreds of job losses as the company streamlines its business and eliminates redundancies. The story also quotes iHeartMedia spokesperson Wendy Goldberg, saying the company has focused on expanding its Gen Z audience and that its broadcast radio audience has “more listeners than it did 10 years ago. Although in a company of 10,000 people very few jobs have been affected, there have been some and we never take this step lightly no matter how few jobs it entails; every team member is important to us and has our respect and appreciation.” 
“NAB congratulates President-Elect Trump and the new and returning members of Congress. Local television and radio stations are committed to working with the next administration on policies that will enable increased investment in local journalism, emergency information, sports and entertainment on which our communities rely. NAB will continue its bipartisan work with policymakers to strengthen this free, local service that is essential to our democracy.”
moment.” Striegle tells TALKERS, “There are so many amazing memories. For me, what I will miss most are the people. Everywhere we go, we meet wonderful people, great race fans that tell us, ‘We have been listening to MRN for years…’ they always want to thank us for what we do. Without the fans, there would be no need for the Motor Racing Network.” “Throughout his time with the network Jeff has lent his talents to a number of positions around the racetrack before finding his way to the broadcast booth in 2013,” said MRN president Chris Schwartz. “His broadcast career began like so many others by working the public address booth providing the soundtrack for thousands of fans at his local racetrack, in Jeff’s case Berlin Raceway in Marne, Michigan. He has been involved with calling some of the sport’s most iconic moments, and it is fitting that the checkered flag will fall on his broadcast career by calling the final laps of another NASCAR Cup Series Championship.” Motor Racing Network will have flag to flag coverage of the NASCAR Cup Series Championship Race Sunday, November 10th beginning at 2pm ET. The NASCAR Cup Series Championship Race will be carried LIVE on approximately 300 radio station partners across the United States, the NASCAR mobile app, and at MRN.com. For affiliation in your area, contact Bob Quick, director, radio partnerships & traffic at Motor Racing Network by email at 
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.”
