When Borrowed Becomes Stolen: The Fair Use Line for Talk Hosts and Podcasters
By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer
Jimmy Kimmel’s first monologue back after the recent suspension had the audience laughing and gasping, and, in the hands of countless radio hosts and podcasters, replaying. Within hours, clips of his bit weren’t just being shared online. They were being chopped up, (re)framed, and (re)analyzed as if they were original show content. For listeners, that remix feels fresh. For lawyers, it is a fair use minefield.
Playing the Clip, Owning the Take
Audiences increasingly expect their favorite talkers to “play the clip,” whether it is from Kimmel, Stephen Colbert, Sid Rosenberg, or Charlamagne tha God on The Breakfast Club (a show that seems to go viral every other week), and then add their own color commentary, the kind of play-by-play that makes it feel like the home team is calling the action. That format works. It gives context, tone, and a sense of immediacy that no transcript can match. Done right, it is what transforms a broadcast from just a recap into a fulfilling cultural conversation.
But with every replay comes a risk. Fair use does not mean free use. Courts weigh factors like how much of the original work you used, whether your purpose was transformative, and whether your use cuts into the market value of the original. Playing a short excerpt of Kimmel’s joke before riffing on it? Likely fair. Running half the monologue and treating it as your A-block? That edges into trouble, both legally and from a programming perspective. Why would anyone want to hear your take if your “take” is mostly replaying someone else? That is not adding to the common zeitgeist; it is just echoing it.
The Podcaster and Broadcaster Dilemma
Radio hosts have long leaned on “newsworthiness” as a shield. Podcasters often assume the same rules apply. But here is the distinction: news clips and comedy bits are not treated equally in court. A station rebroadcasting a press conference is serving public information. A podcast re-airing Kimmel is competing directly with Kimmel’s own clips on YouTube. One informs, the other risks replacing.
And while linking to ABC or YouTube is a courtesy, just as crediting them in the video itself might be, it does not replace the traffic (and ad dollars) Kimmel’s team expects. The law does not guarantee creators compensation for commentary, but judges do consider market harm. If your listeners stop watching the original because your show already gave them the “best parts,” you have tilted the scale against yourself. John Oliver is often credited (though no one seems able to find the clip): “People are always going to say stupid things, and you’re always going to be able to make jokes about that, but it should be the last thing you add in, because it is the easiest thing.”
Whether he actually said it or not almost proves the point. Recycling someone else’s words without context is the laziest move in the book. And if you cannot find the source? That is about as meta as fair use gets.
The Takeaway
Here is the smart play: use less and say more. A 20-second clip followed by two minutes of commentary is transformative. A five-minute clip with a shrug and a chuckle is not. Audiences do not tune in to hear Kimmel again. They tune in to hear what you think about Kimmel. The moment you let someone else’s content carry your show, you lose both legal ground and creative authority.
Matthew B. Harrison is a media and intellectual property attorney who advises radio hosts, content creators, and creative entrepreneurs. He has written extensively on fair use, AI law, and the future of digital rights. Reach him at Matthew@HarrisonMediaLaw.com or read more at TALKERS.com.
current events.” Roeper says, “I’m thrilled to be joining my friend Bob Sirott every week so we can exchange views about whatever Chicagoans are talking about, whether it’s the new pope, the prospects for his Cubs and my White Sox, to what’s happening with pop culture or news. Bob was instrumental in launching my TV career back in the day, and I look forward to this new collaboration.” Roeper and Sirott last collaborated on air when Sirott co-anchored “Fox Thing in the Morning” on Fox32 in the 1990s. Roeper won a Chicago/Midwest Emmy for commentary and the duo teamed up for a second Emmy on a half-hour special that aired in 1998.
44 years. Ken Squier passed away in November and his daughter Ashley tells WCAX-TV, Burlington that the station that’s provided local sports, news, commentary, and more will be in good hands. “I feel that this is a very good day and a very good development. Dad loved community radio.” The station says that former Republican U.S. Senate candidate and former Ethan Allen Institute leader Myers Mermel will serve as owner-operator. Mermel tells WCAX-TV he wants the station to remain local. “We want to look at different ideas and new ideas in order to increase our ability to discover and identify and bring in content.” 
censorship” from conservatives. The rhetoric surrounding these deals is part and parcel of the politicized nature of media in the modern world. In the piece, Montlake observes, “The $60 million takeover – and the reactions it has sparked – is another flashpoint in the national battle to win over Latino voters, a fast-growing demographic that has long leaned Democratic but has lately grown more receptive to Republicans. So far, most Spanish-language radio in the U.S. has been focused on music and entertainment, not news or commentary. Which in the eyes of many makes it an untapped and lucrative means of political persuasion.”