Tag: Fair Use

Industry Views

AI Doesn’t Clear the Rights

By TALKERS | by TALKERS

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

imgYour competitor breaks a story. You can report the facts, but you cannot assume that running its article through AI makes the resulting script yours to use. A rewrite button is not a rights-clearance department.

A September federal appeals court ruling supplies a useful reminder. Ross Intelligence used Westlaw’s editorial summaries of judicial decisions to train a competing AI legal-research service. The Third Circuit rejected its fair use defense: the underlying court opinions were available, but Westlaw’s original summaries carried copyright protection.

The court focused on Ross’s commercial competition, similar purpose, and market harm. Using AI did not make that copying fair. Ross’s tool was not generative AI, however, so the ruling does not decide every dispute involving chatbots or AI-written scripts.

For broadcasters, the distinction is familiar. Nobody owns the fact that the mayor resigned; somebody may own the original language explaining what happened. Fair use can permit borrowing for reporting or commentary, but neither attribution nor changing a few words automatically resolves the copyright question.

Follow the facts, write your account, and evaluate what you borrow. Expect the same consideration when someone uses your material. AI can speed up production. It cannot supply permission you never obtained.

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.

Industry Views

The Most Valuable Commodity AI Can’t Generate

By TALKERS | by TALKERS

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By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Legal Group, Senior Partner
Goodphone Communications, Executive Producer
imgThroughout the TALKERS 2026 conference, there was a recurring theme that bears repeating:

Technology creates abundance. Authenticity creates value.

Throughout human history, creating media required expensive equipment, specialized knowledge, or access to someone willing to open the door. Each technological leap removed another layer of friction. Desktop publishing challenged traditional print. Digital audio transformed radio production. YouTube made anyone with a camera a broadcaster or “content creator.” Podcasting removed the need for a transmitter. Today, generative AI can help write scripts, edit video, compose music, translate languages, and produce polished content in minutes.

That isn’t the end of creativity. It’s the beginning of an era with more creativity than we’ve ever seen.

We should cautiously embrace it.

Every time technology lowers the barrier to creation, more people get the opportunity to tell stories, share ideas, build businesses, and reach audiences that were once inaccessible. That’s a remarkable thing.

Abundance, however, changes the economics.

When content was scarce, simply producing it created value. Today, content is everywhere. Tomorrow, there will be even more. Artificial intelligence isn’t replacing creators nearly as much as it’s multiplying them.

When everyone can create, audiences need a different way to decide what deserves their attention.

They look for authenticity.

Authenticity isn’t about perfection. It isn’t about expensive production. It isn’t even about whether AI helped along the way. It’s about whether audiences believe there is a real person behind the work, someone with genuine experience, judgment, and something worth saying.

That idea also explains why fair use has always mattered.

Fair use protects commentary, criticism, reporting, scholarship, and parody because those activities add something new to the conversation. Copyright law has long recognized that society benefits when creators contribute insight rather than simply repeat what already exists. The principle hasn’t changed. The tools have.

Media has entered another frontier. The rules are still developing. Business models continue to evolve. New voices appear every day. Some will succeed because they mastered the latest technology.

The most enduring voices will succeed because people trust them.

Broadcasters have always understood this, even if we didn’t always describe it that way. Listeners return because they believe the personality behind the microphone.

The same is true for podcasters, streamers, YouTubers, journalists, and creators of every kind.

Technology will continue creating abundance. That’s worth celebrating.

The opportunity now is to create something abundance cannot replace.

Authenticity.

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@HarrisonLegalGroup.com or read more at TALKERS.com.

 

Industry Views

A 20th Century Rulebook Officiating a 2026 Game

By TALKERS | by TALKERS

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

imgEvery media creator knows this moment. You are building a segment, you find the clip that makes the point land, and then the hesitation kicks in. Can I use this? Or am I about to invite a problem that distracts from the work itself?

That question has always lived at the center of fair use. What has changed is not the question, but the context around it. Over the past year, two federal court decisions involving AI training have quietly clarified how judges are thinking about copying, transformation, and risk in a media environment that looks nothing like the one for which these rules were originally written.

Fair use was never meant to be static. Anyone treating it as a checklist with guaranteed outcomes is working from an outdated playbook. What we actually have is a 20th century rulebook being used to officiate a game that keeps inventing new positions mid-play. The rules still apply. But how they are interpreted depends heavily on what the technology is doing and why.

That tension showed up clearly in two cases out of the Northern District of California last summer. In both, the courts addressed whether training AI systems on copyrighted books could qualify as fair use. These were not headline-grabbing decisions, but they mattered. The judges declined to declare AI training inherently illegal. At the same time, they refused to give it a free pass.

What drove the analysis was context. What material was used. How it was ingested. What the system produced afterward. And, critically, whether the output functioned as a replacement for the original works or something meaningfully different. Reading the opinions, you get the sense that the courts are no longer talking about “AI” as a single concept. Each model is treated almost as its own actor, with its own risk profile.

A simple medical analogy helps. Two patients can take the same medication and have very different outcomes. Dosage matters. Chemistry matters. Timing matters. Courts are beginning to approach AI the same way. The same training data does not guarantee the same behavior, and fair use analysis has to account for that reality.

So why should this matter to someone deciding whether to play a 22-second news clip?

Because the courts relied on the same four factors that govern traditional media use. Purpose. Nature. Amount. Market effect. They did not invent a new test for AI. They applied the existing one with a sharper focus on transformation and substitution. That tells us something important. The framework has not changed. The scrutiny has.

Once you see that, everyday editorial decisions become easier to evaluate. Commentary versus duplication. Reporting versus repackaging. Illustration versus substitution. These are not abstract legal concepts. They are practical distinctions creators make every day, often instinctively. The courts are signaling that those instincts still matter, but they need to be exercised with awareness, not habit.

The mistake I see most often is treating fair use as permission rather than analysis. Fair use is not a shield you invoke after the fact. It is a lens you apply before you hit publish. The recent AI cases reinforce that point. Judges are not interested in labels. They are interested in function and effect.

Fair use has always evolved alongside technology. Printing presses, photocopiers, home recording, digital editing, streaming. AI is just the newest stress test. The takeaway is not panic, and it is not complacency. It is attention.

If you work in the media today, the smart move is to understand how the rulebook is being interpreted while you are busy playing the game. The rules still count. The field just looks different now.

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@HarrisonLegalGroup.com or read more at TALKERS.com.

Industry Views

When Borrowed Becomes Stolen: The Fair Use Line for Talk Hosts and Podcasters

By TALKERS | by TALKERS

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

imgJimmy 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@HarrisonLegalGroup.com or read more at TALKERS.com.

Industry Views

Fair Use in 2025: The Courts Draw New Lines

By TALKERS | by TALKERS

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

imgImagine an AI trained on millions of books – and a federal judge saying that’s fair use. That’s exactly what happened this summer in Bartz v. Anthropic, a case now shaping how creators, publishers, and tech giants fight over the limits of copyright.

Judges in California have sent a strong signal: training large language models (LLMs) on copyrighted works can qualify as fair use if the material is lawfully obtained. In Bartz, Judge William Alsup compared Anthropic’s use of purchased books to an author learning from past works. That kind of transformation, he said, doesn’t substitute for the original.

But Alsup drew a hard line against piracy. If a dataset includes books from unauthorized “shadow libraries,” the fair use defense disappears. Those claims are still heading to trial in December, underscoring that source matters just as much as purpose.

Two days later, Judge Vince Chhabria reached a similar conclusion in Kadrey v. Meta. He called Meta’s training “highly transformative,” but dismissed the lawsuit because the authors failed to show real market harm. Together, the rulings show that transformation is a strong shield, but it isn’t absolute. Market evidence and lawful acquisition remain decisive.

AI training fights aren’t limited to novelists. The New York Times v. OpenAI case is pressing forward after a judge refused to dismiss claims that OpenAI and Microsoft undermined the paper’s market by absorbing its reporting into AI products. And in Hollywood, Disney and Universal are suing Midjourney, alleging its system lets users generate characters like Spider-Man or Shrek – raising the unsettled question of whether AI outputs themselves can infringe.

The lesson is straightforward: fair use is evolving, but not limitless. Courts are leaning toward protecting transformative uses of content—particularly when it’s lawfully sourced – but remain wary of piracy and economic harm.

That means media professionals can’t assume that sharing content online makes it free for training. Courts consistently recognize that free journalism, interviews, and broadcasts still carry market value through advertising, sponsorship, and brand equity. If AI systems cut into those markets, the fair use defense weakens.

For now, creators should watch the December Anthropic trial and the Midjourney litigation closely. The courts have blessed AI’s right to learn – but they haven’t yet decided how far those lessons can travel once the outputs begin to look and feel like the originals.

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@HarrisonLegalGroup.com

Industry Views

When “Sharing” Becomes Stealing: TALKERS’ 90-Second Lesson in Fair Use

By TALKERS | by TALKERS

By Matthew B. Harrison

TALKERS, VP/Associate Publisher
Harrison Legal Group, Senior Partner
Goodphone Communications, Executive Producer

imgNinety seconds. That’s all it took. One of the interviews on the TALKERS Media Channel – shot, edited, and published by us – appeared elsewhere online, chopped into jumpy cuts, overlaid with AI-generated video game clips, and slapped with a clickbait title. The credit? A link. The essence of the interview? Repurposed for someone else’s traffic.

TALKERS owns the copyright. Taking 90 seconds of continuous audio and re-editing it is infringement.

Could they argue fair use? Maybe, but the factors cut against them:

  • Purpose: Clickbait, not commentary or parody.
  • Nature: Original journalism leans protective.
  • Amount: Ninety seconds may be the “heart” of the work.
  • Market Effect: If reposts draw views, ad revenue, or SEO, that’s harm.

And here’s the key point: posting free content doesn’t erase its market value. Free journalism still generates reputation, sponsorships, and ad dollars. Courts consistently reject the idea that “free” means “up for grabs.”

Enforcement options exist. A DMCA notice can clear a repost quickly. Repeat offenders risk bans. On-screen branding makes copying obvious, and licenses can set terms like “share with credit, no remix.”

But here’s the hard truth: a takedown won’t stop the AI problem. Once a clip circulates, it’s scraped into datasets training text-to-video and voice models. Deleting the repost doesn’t erase cached or mirrored copies. Think of it like pouring a glass of water into the ocean – you can’t get it back. And to make matters worse, enforcement doesn’t stop at U.S. borders. Different countries have different copyright rules, making “justice” slow, uneven, and rarely satisfying.

That TALKERS interview may now live inside billions of fragments teaching machines how people speak. You can win the takedown battle and still lose the training war. Courts are only starting to address whether scraping is infringement. For now, once it’s ingested, it’s permanent.

Creators face a constant tension: content must spread to grow, but unchecked sharing erodes control. The challenge in 2025 is drawing that line before your work becomes someone else’s “content.”

The law is still on your side – but vigilance matters. Use takedowns when necessary. Brand so the source is clear. Define sharing terms up front. And remember: free doesn’t mean worthless.

The real question isn’t just “Is it fair use?” It’s “Who controls the story?”

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@HarrisonLegalGroup.com

Industry Views

Could Your Own Podcast Become Your AI Competitor?

By TALKERS | by TALKERS

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

mattybharrisonImagine a listener “talking” to an AI version of you – trained entirely on your old episodes. The bot knows your cadence, your phrases, even your voice. It sounds like you, but it isn’t you.

This isn’t science fiction. With enough content, it’s technically feasible today. A determined developer could transcribe archives, fine-tune a language model, and overlay a cloned voice. The result wouldn’t be perfect, but it would be recognizable.

Whether that’s legal is another question – one circling directly around fair use.

Why It Matters

For most content creators, archives are their most valuable asset. Yet many contracts with networks, distributors, or hosting platforms quietly grant broad rights to use recordings in “new technologies.” That language, once ignored, could be the legal hook to justify training without your permission.

Fair use is the fallback defense. Tech companies argue training is transformative – they aren’t re-broadcasting your show, only using it to teach a machine. But fair use also weighs market harm. If “AI You” pulls listeners or sponsors away from the real thing, that argument weakens considerably.

Not Just Theory

Other industries are already here. AI has generated convincing tracks of Frank Sinatra singing pop hits and “new” stories written in the style of Jane Austen. If that can be done with a few books or albums, thousands of podcast episodes provide more than enough material to train a “host model.”

Talk media is especially vulnerable because its product is already conversational. The line between “fan remix” and “AI imitation” isn’t as wide as it seems.

What You Can Do

This isn’t about panic – it’s about preparation.

— Review your contracts: confirm you own your recordings and transcripts.
— Register your work: enforceable rights are stronger rights.
— Decide your stance: licensing your archives for training might be an opportunity – if you control it.
— Emphasize authenticity: audiences still value the human behind the mic.

The Takeaway

Could your podcast be turned into your competitor? Yes, in theory. Will it happen to you? That depends on your contracts, your protections, and the choices you make.

Fair use may ultimately decide these battles, but “fair” is not the same as safe. Consider this example a reminder: in the AI era, your archive is not just history – it is raw material.

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@HarrisonLegalGroup.com or read more at TALKERS.com.

Industry Views

They Say YOU Infringed – But Do THEY Own the Rights?

By TALKERS | by TALKERS

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

imgYou did everything right – or so you thought. You used a short clip, added commentary, or reshared something everyone else was already posting. Then one day, a notice shows up in your inbox. A takedown. A demand. A legal-sounding, nasty-toned email claiming copyright infringement, and asking for payment.

You’re confused. You’re cautious. And maybe you’re already reaching for the fair use defense.

But hold on. Before you argue about what you used, ask something simpler: Does the party accusing you actually own the rights?

Two Main Reasons People Send Copyright Notices

1. They believe they’re right – and they want to fix it.  Sometimes the claim is legitimate. A rights-holder sees their content used without permission and takes action. They may send a DMCA takedown, request removal, or ask for a license fee. Whether it’s a clip, an image, or a music bed – the law is on their side if your use wasn’t authorized.
2. They’re casting a wide net – or making a mistake. Other times, you’ve landed in a mass enforcement dragnet. Some companies send thousands of notices hoping a few people will pay – whether or not the claim is strong, or even valid. These are often automated, sometimes sloppy, and occasionally bluffing. The sender may not own the rights. They may not even know if what you used was fair use, public domain, or licensed.

Mistakes happen. Bots misidentify content. Images get flagged that were never protected. Even legitimate copyright holders sometimes act too fast. But once a notice goes out, it can become your problem – unless you respond wisely.

The First Thing to Check Is Ownership

Most creators instinctively argue fair use or say they meant no harm. But those aren’t the first questions a lawyer asks.

The first question is: “Do they have standing to bring the claim?”

In many cases, the answer is unclear or flat-out “no.” Courts have dismissed copyright lawsuits where the claimant couldn’t show ownership or any active licensing interest. If they can’t demonstrate control over the work – and actual market harm – they may not have the right to sue.

What To Do If You Get a Notice

— Don’t panic. Not all claims are valid – and not all claimants are in a position to enforce them.
— Don’t assume fair use will protect you. It might, but only after ownership is clear.
— Don’t engage emotionally. Responding flippantly can escalate things fast.
— Do get help early. A media attorney can help you assess whether the claim is real – and whether the sender has any legal ground at all.

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@HarrisonLegalGroup.com or read more at TALKERS.com.

Industry Views

Just Because You Found It Online Doesn’t Mean You Can Use It

By TALKERS | by TALKERS

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

imgA New Jersey radio station thought they were just being clever online. They scanned a photo from New Jersey Monthly, cropped out the photographer’s credit line, and posted it on Facebook – inviting listeners to edit and reshare it for fun. ying to engage listeners to interact with the station with more than just their ears.”

But that station, WKXW 101.5, ended up in federal court.

Photographer Peter Murphy sued for copyright infringement and removal of attribution. The Third Circuit ruled against the station – finding that the image was used without permission, credit removed, and the photographer’s ability to license his work damaged.

It wasn’t fair use. It was infringement.

Fair Use Won’t Save You from Getting Sued

Fair use isn’t a free pass – it’s a defense. That means someone’s already accused you of infringement, and now it’s on you to justify it.

Even when it works, fair use still costs time and money. In the WKXW case, the station used the entire photo, failed to transform it, and encouraged widespread online sharing. The court saw that as market harm – one of the most important fair use factors.

And don’t assume you’re safe just because it wasn’t part of the broadcast. Courts have made clear that even social media posts by broadcasters can undermine the value of the original and trigger liability.

Don’t Ignore It Just Because It Feels Small

In my own experience with clients fending off these kinds of claims, sometimes it’s obvious. Other times it’s a bluff. But even bogus claims can cost you if you don’t take them seriously from the beginning.

License It, Link to It, or Leave It

If you didn’t create it or license it, don’t assume it’s fair game. Look for content with clear reuse rights. Better yet – link to the source instead of copying it.

Because if a copyright holder comes after you, your intentions won’t matter. Only your rights will.

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@HarrisonLegalGroup.com or read more at TALKERS.com.

Industry Views

Fair Use or Foul Play? Lessons from “Equals Three”

By TALKERS | by TALKERS

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

imgIn the ever-evolving landscape of digital media, creators often walk a fine line between inspiration and infringement. The 2015 case of “Equals Three, LLC v. Jukin Media, Inc.” offers a cautionary tale for anyone producing reaction videos or commentary-based content: fair use is not a free pass, and transformation is key.

The Case at a Glance

“Equals Three,” a popular YouTube series, built its reputation on humorously reacting to viral videos. The show used 10-30 second clips of these videos, pausing periodically for the host to add jokes and reactions. Jukin Media, which owns the rights to many viral clips, sued for copyright infringement, arguing the use was not protected under fair use.

The court sided with Jukin Media, ruling that “Equals Three’s” use was not sufficiently transformative. While the show added humor and commentary, it primarily repackaged the original content for entertainment without enough new meaning.

What This Means for You

Fair use requires creators to add something new, such as critique or analysis. Simply reacting to content with jokes or minimal commentary isn’t enough. Use only what’s necessary and ensure your work doesn’t substitute for the original.

Additionally, fair use considers market impact. If your content diminishes the value of the original by serving as a substitute, it’s unlikely to qualify. 

Why This Matters

Reaction videos and commentary are staples of digital media, but they come with risks. The “Equals Three” case highlights the need for meaningful transformation. By focusing on critique, analysis, or education, creators can navigate fair use confidently while respecting intellectual property rights. 

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

Industry Views

FAIR USE: What Constitutes “Publishing” or a “Publication” on Today’s Media Playing Field?

By TALKERS | by TALKERS

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

imAs 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