FAIR USE: What Constitutes “Publishing” or a “Publication” on Today’s Media Playing Field?
By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, 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the “nature of the copyrighted work,” especially focusing on whether the work is factual or creative, and published or unpublished.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Unpublished interviews or speeches. When audio content includes unpublished material – such as a speech or interview that hasn’t been publicly released – courts typically approach it with heightened caution. For example, if a podcast includes clips from an unpublished interview with a politician to enhance commentary, courts might scrutinize this more heavily than they would a published work, as the speaker retains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 The landmark case Salinger v. Random House highlighted how unpublished works generally receive stronger copyright protection. In this case, the use of unpublished letters in a biography was ruled as infringing, emphasizing that unpublished materials hold a unique status in copyright law. If a podcaster today were to use a similarly unpublished interview with a public figure without significant commentary or transformation, they might face greater legal challenges.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 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
competition last evening (2/22) at the 1st Circuit Court of Appeals in Boston, MA. The American Bar Association, Law Student Division holds a number of annual national moot court competitions. One such event, the National Appellate Advocacy Competition, emphasizes the development of oral advocacy skills through a realistic appellate advocacy experience with moot court competitors participating in a hypothetical appeal to the United States Supreme Court. This year’s legal question focused on the Communications Decency Act – “Section 230” – and the applications of the exception from liability of internet service providers for the acts of third parties to the realistic scenario of a journalist’s photo/turned meme being used in advertising (CBD, ED treatment, gambling) without permission or compensation in violation of applicable state right of publicity statutes. Harrison tells TALKERS, “We are at one of those sensitive times in history where technology is changing at a quicker pace than the legal system and legislators can keep up with – particularly at the consequential juncture of big tech and mass communications. I was impressed and heartened by the articulateness and grasp of the Section 230 issue displayed by the law students arguing before me.” 
sponsored by Newsmax, was introduced by TALKERS associate publisher and media attorney, Matthew B. Harrison, Esq. (pictured at right) and moderated by TALKERS publisher, Michael Harrison (pictured above). Panelists (pictured below from left to right) include Lee Harris, director of integrated operations, NewsNation; Lee Habeeb, host/producer, “Our American Stories”; Kraig Kitchin, CEO, Sound Mind, LLC/chair, Radio Hall of Fame; Arthur Aidala, Esq., founding partner, Aidala, Bertuna & Kamins, PC/host, AM 970 The Answer, New York; Chad Lopez, president, WABC, New York/Big Apple Media; and Dr. Asa Andrew, CEO/host, “The Doctor Asa Show.” 
FOX News Media Seeks Freelance Radio Anchor. This onsite position in either Los Angeles, Chicago or New York is a freelance radio anchor for the FOX News Audio family as on-air talent for FOX News Radio Network/FOX News Headlines 24/7 Sirius XM Channel 115. In this position, you will work under tight deadlines and deliver top-notch newscasts. You have a passion for breaking news and the flexibility to work on a day’s notice. Learn more about this position 
NOW POSTED: This Weekend’s Installment of “The Michael Harrison Wrap: An Overview of the National Conversation.” The latest installment of the one-hour weekend special, “The Michael Harrison Wrap,” that looks back each week at the hottest topics discussed in American talk media per the research of TALKERS, is now posted. This new episode titled “Doom or Boom?” looks back at this past week of 8/22 to 8/26. The program features guests (in order of appearance): Kevin Casey, executive editor, TALKERS; Ethan Bearman, attorney, The Bearman Firm; Jack Heath, talk show host, The Pulse of NH; Dom Giordano, talk show host, WPHT, Philadelphia; Todd Feinburg, talk show host, WTIC, Hartford; and Matthew B. Harrison, attorney, VP/associate publisher, TALKERS. The show airs weekends (Friday evenings to Sunday nights) on almost 100 broadcast signals and networks across the U.S. and U.K as well as having developed a significant international following as a podcast. To listen to this week’s episode, please 
Babin comments that, “Jason’s leadership, creativity, and strategic approach have led to outstanding results for our employees, listeners, and advertisers in Orlando. He’s leaving the market in much better condition than when he arrived. Orlando remains a crucial market for CMG, and I will immediately begin the search for a new vice president/market manager to continue our team’s success there. I know that Jason will make a positive impact in this new role in Tampa, building on the consistent success that our team in Tampa produces every year.” Tampa/St. Petersburg area native/University of Central Florida alum Meder states, “Our CMG Radio team in Orlando worked hard and worked together to achieve some amazing accomplishments. We built a team that will continue to have great success in the future. I’m very excited to work with another very talented team and continue the legacy of success for these powerful CMG community brands.” Meder joined CMG Tampa 20 years ago as a media consultant. Prior to becoming vice president/market manager for CMG’s Orlando stations, he was general sales manager; director of sales, and general manager. In addition to news/talk WHPT “102.5 The Bone,” CMG Tampa’s cluster includes adult contemporary outlets WDUV and WWRM; classic hits-oldies WXGL; CHR WPOI; and alternative WPOI-HD2.
Darnell’s iHM Duties Now Include Riverside Area President. In addition to continuing to oversee iHeartMedia properties in Fresno, Modesto, Stockton, Monterey, Bakersfield, and Spokane, Pacific Area president Steve Darnell adds Riverside-Ontario-San Bernardino (Southern California’s Inland Empire) to his responsibilities. iHeartMedia Markets Group division
president Dan Lankford notes, “Steve has done a great job of elevating the performance of this area, and I’m certain he will form a strong partnership with iHeartMedia Riverside senior vice president of sales Ryan Lieberman.” Darnell adds, “I’m thrilled to welcome the Riverside market into the Pacific Area. Riverside shares many market characteristics and cultural similarities with our other markets in the Pacific Area, including great audio brands and veteran sales leadership. I’m confident Riverside will be a great addition and I can’t wait to get to work with Team Riverside.” Prior to becoming iHM’s Pacific Area president in January 2020, Darnell was the company’s Fresno’s market president and was vice president/general manager of Buckley Radio Bakersfield. iHeartMedia’s Inland Empire cluster includes sports talk KPWK “Fox Sports AM 1350” and news KFOO-AM “Black Information Network BIN 1440,” as well as rhythmic CHR KGGI; triple A KMYT; and rock KTMQ.
Lohman’s iHM AP Purview Is Extended To Hawaii. The potential exists for Andy Lohman to rack up considerable frequent flyer miles as iHeartMedia’s Alaska Area (Anchorage and Fairbanks) president tacks on a similar title for the company’s Hawaii facilities. According to iHeartMedia Markets Group division president Dan Lankford, “Andy has done a great job leading his Alaskan markets. I’m excited to see how our Alaska and Hawaii markets will work together because of their shared unique characteristics. I’m sure Andy and Honolulu market president Scott Hogle will work closely together to elevate both areas.” Former KJR-FM, Seattle general sales manager Lohman remarks, “I’m looking forward to working with Scott Hogle and his fantastic iHeartMedia Hawaii team. Hawaii has its own unique culture; iHeartMedia Hawaii is an integral part of the island lifestyle. The Alaska/Hawaii Area comprises not only the two states separate from the lower 48, but also two of the most beautiful places to live in America. We will be strong partners.” In addition to news/talk KHVH “News Radio 830” and sports talk KIKI “Fox Sports AM 990 Hawaii,” iHeartMedia Honolulu owns and operates adult contemporary KSSK-FM & KSSK-AM; CHR KDNN; rhythmic CHR KUBT; hip-hop KUBT-HD2; alternative KUCD; and Asian CHR KUCD-HD2.
Michael Harrison Performs Lead Vocals on GUNHILL ROAD’s “Idiots.” The brand-new track – “Idiots” – by venerable pop musical ensemble GUNHILL ROAD features TALKERS founder Michael Harrison as lead vocalist. Specifically designed for talk radio airplay, the song is a sharp-tongued follow up to the group’s 2021 internet hit, “I Know You’re Real,” in which Harrison also performed lead vocals. Whereas, “I Know You’re Real” was a sweet tribute to animal welfare, “Idiots” is a scathing commentary on the dangers posed to American democracy by ignorance, frivolousness, greed, dishonesty, violence and bad character. According to Harrison, who co-wrote the catchy tune in collaboration with all of the quartet’s members, the song is political but not partisan. It describes both the Democratic and Republican Parties as “merchants of division” while also hurling verbal jabs at negative cultural
excesses such as narcissism, hyper-consumerism, and social media addiction. Harrison says, “Some people might be offended by this song – especially the stupid ones…. which, to one degree or another, includes us all.” He adds, “Based upon my years of experience tracking American public opinion, I think the growth of systemic idiocy within our culture poses a frightening threat to American democracy.” GUNHILL ROAD has been writing and recording a wide variety of songs contained in four albums since the late-sixties, including the 1973 top 40 hit single, “Back When My Hair Was Short.” The group’s colorful history was the subject of a 2017 feature film documentary titled, “Every 40 Years.” Formed in Mount Vernon, New York by Steve Goldrich and Glenn Leopold and named after an iconic street in the Bronx, GUNHILL ROAD has evolved for more than a half century and continues to be musically active, much to the delight of its dedicated fan base. Harrison’s history with the group goes back to his days as the morning host on legendary New York album rocker WNEW-FM when he championed them as a main item on his daily musical menu. An FM progressive rock radio favorite in the early 1970s, GUNHILL ROAD has developed into a modern musical organization with an eclectic internet following – continually writing and recording new music while exploring a wide variety of genres. The group’s songs address such compelling themes as relationships, aging, politics, animal welfare, and personal loss. The current players in GUNHILL ROAD include co-founder Steve Goldrich (piano, vocals, writing); longtime member Paul Reisch (guitar, vocals, writing); veteran Broadway instrumentalist Brian Koonin (guitar, vocals, writing); and radio icon Harrison (vocals, writing). Backup horns, strings, percussion and assorted instruments are provided by some of the nation’s leading studio musicians and concert performers. “Idiots” is an advance single from the group’s forthcoming fifth album that’s scheduled to drop in the late fall. Harrison says, “It is an honor to actually be a member of this historic group after having played them on the radio in my early career.” Harrison is going on tour to promote the song and is available for talk media interviews in which he discusses the danger of widespread idiocy. To arrange a booking, call Barbara Kurland at 413-565-5413. To hear “Idiots” and view the accompanying video produced by Matthew B. Harrison, click 
NRG Media Omaha, Creighton Extend Their Relationship. As part of the three-year deal, several NRG Media Omaha stations will cover Creighton University athletics, including men’s and women’s basketball; men’s baseball; volleyball; and men’s and women’s soccer. According to NRG Radio Omaha market manager Mark Schecterle, “We are extremely excited to continue our partnership with Creighton University and the athletic department. Creighton is an amazing university with a great athletic program. We truly look forward to growing our partnership in the coming years.” The university’s athletic director, Marcus Blossom, notes that, “NRG has been a tremendous partner with Creighton athletics and we are thrilled to continue this deal. We truly value the long-term relationship we have had with NRG and look forward to the expansion of coverage with additional sports on NRG’s radio stations.” From October through March, sports talk KOZN “1620 The Zone” will air a weekly, live call-in show, “The Creighton Athletics Hour” (6:00 pm – 7:00 pm). Meanwhile, men’s baseball home games; women’s basketball; women’s soccer; and volleyball contests will be on news/talk KOIL “News Talk 1290” or sports talk KZOT “1180 The Zone.”
TALKERS News Notes. Award-winning journalist Deepa Fernandes will join NPR and Boston University-owned public radio news/talk WBUR’s midday news program “Here & Now” (Monday) October 3 as the show’s third host alongside Robin Young and Scott Tong. WBUR chief content officer Victor Hernandez states, “Deepa’s zeal and commitment for telling compelling and deeply reported stories is directly aligned with our mission at WBUR and NPR. Her global-local perspective and experience are going to add tremendous value to our strong team.” Fernandes adds, “Public radio is the most easily accessed daily news source for audiences across the country. I believe we can continue to reach new listeners and enrich the public conversation by including voices, stories and news from communities often excluded.” She joins “Here & Now” from The San Francisco Chronicle where she was an immigration correspondent and senior newsroom advisor on Race and Equity. India-born Fernandes also spent time at Southern California Public Radio; Pacifica Network News; and the Australian Broadcasting Corporation. … KFH “Sports Radio 1240 AM & 97.5 FM” names Tommy Castor host of its weekday (9:00 am – 11:00 am)
“Sports Daily” program on the Audacy Wichita sports talk outlet. Currently vice president of ticket sales and marketing for the Wichita Thunder, the ECHL affiliate of the NHL’s San Jose Sharks, Castor previously spent 15 years on several Wichita radio stations. He co-owns AMP Digital Innovations, a Wichita marketing company. … Starting next Thursday (9/1), Yellowstone Public Radio-owned KEMC, Billings (Montana) “Morning Edition” host Jess Hazel joins Colorado College’s KRCC, Colorado Springs as morning host. Hazel notes, “I can’t wait to meet the people of Southern Colorado. I’m looking forward to building connections with listeners through a shared appreciation for storytelling and public radio.”
