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Brandon M.
Brandon M., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 12348
Experience:  Licensed Attorney
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We're writing a song for the intro on our podcast and it's a

Customer Question

We're writing a song for the intro on our podcast and it's a remake of an old Marty Robbins song "Saddle Tramp" . We're mimicking the first 30 seconds of guitar and rhythm, but we've totally rewritten the lyrics. We have no intention of official advertising on the Podcast. How at risk are we?
Submitted: 27 days ago.
Category: Intellectual Property Law
Expert:  Brandon M. replied 27 days ago.

Good day, my name is Brandon. I'm a licensed attorney, and I'm glad to help.

Expert:  Brandon M. replied 27 days ago.

I'll start by talking a bit about intellectual property as it relates to music:

Expert:  Brandon M. replied 27 days ago.

Ultimately, when someone creates a song, the work is protected by our intellectual property laws. It makes sense -- an artist is inspired and creates something new, so it makes sense that they should be able to control (own) how their art is disseminated. The ownership right is not absolute; there's something called the fair use doctrine as it relates to copyrighted material. The "fair use doctrine" essentially says that creative works can be mimicked, duplicated, replicated, etc. in limited scope and for limited purposes. There's no litmus test for the fair use doctrine--it's a fuzzy line, but there are guidelines for whether a use is "fair use." When considering whether a use of a protected work is "fair use", the courts will consider:

Expert:  Brandon M. replied 27 days ago.

(1) the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit, educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for, or value of, the copyrighted work....

Expert:  Brandon M. replied 27 days ago.

So I do have some concerns about what you've described, to be honest. My first question relates to the purpose and character of the use -- do you expect to generate revenue as a result of the podcast?

Customer: replied 27 days ago.
From the outset our goal is not revenue, and we intend to never have official advertising, but we would hate to lock out all revenue options in the future due to our jingle choice.
Expert:  Brandon M. replied 27 days ago.

Ok, that's understandable. Do you have an idea of how large your audience will be? How many views do you expect in the first 3 months, for example? Any idea?

Customer: replied 27 days ago.
I would hope for 500 downloads an episode. 12 episodes first 3 months. 6,000 downloads?
Expert:  Brandon M. replied 27 days ago.

Thank you. Is it fair to say that the nature of your program is more entertainment than educational in nature?

Expert:  Brandon M. replied 27 days ago.

And I'll tell you where I'm headed with this: as I mentioned, I am concerned. When artists mimic the lyrics, or the sound, or the tune, etc., they are at least exposing themselves to a potential lawsuit. It's great when an attorney says, "if you get sued, I think that you will win.", but who wants to be sued in the first place? And even if you're sure that your adaptation is fair use, or changes the work enough to be completely your own, it's always possible that a cynical jury might disagree with you. If your podcast gets 6,000 download, I doubt (1) that whoever owns the song will ever notice, and (2) will care even if they notice. Even if they did sue, it's not likely, for any given case, that the amount that they win and get would exceed the legal costs of suing you... for any given case, a lawsuit is extremely unlikely. That said, you never really know... you never know if someone is just going to be tired of having people use their music and decide that they're going to make an example out of you. You never know if this is going to launch you to stardom, and you're suddenly worth suing. I can't make a recommendation for something I haven't learned, but any responsible attorney will say to play it safe -- if the song doesn't make or break your podcast, go with something else and never worry about it again. Alternatively, you can contact the owner and ask their permission for use (they sometimes agree).

Expert:  Brandon M. replied 27 days ago.

So the risk of any actual consequences may be very low, but why risk it at all? I hope that makes sense. Let me know if you need further clarification, and please leave a positive rating once you are satisfied that I have done all I can to help. Thank you!

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