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Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 17117
Experience:  Licensed Texas General Practice Attorney
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I am starting a podcast that will focus on popular music. I

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I am starting a podcast that will focus on popular music. I have a few questions about what I can and can't do in the podcast when it comes to copyrighted works and IP in general.

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Can you tell me what your questions are?

Customer: replied 3 months ago.
Hi! Thanks for speaking with me today. First, a little about the podcast: it is going to be called "Skipped On Shuffle". The premise is that two hosts will discuss a song by a major band (think Grammy-winning, stadium-filling acts) that for whatever reason is not that popular. This one song will be discussed and dissected to determine why it is "Skipped On Shuffle". During the podcast, we would like to play clips of the song in question. From my research online, I have determined that this is perfectly legal to do, however, the FULL song cannot be played uninterrupted. So the first question is how long can the clips safely be?

Thank you. One moment...

There's no set portion of a song that takes it from "fair use" (essentially how it's "okay" to do this) to infringement. The four factors judges consider are:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

Using portions of it for comment, criticism, education, etc... will be considered fair use if these other factors, taken together, indicate that fair use is allowed. I tell customers that if people will be downloading your podcast so they don't have to pay to download the song, then that would obviously be infringement. That's the "effect of the use upon the potential market" which is most important from the standpoint of the owner of the work (and thus most likely to make them make the decision to sue for infringement if it comes to that). Short portions (10-15 seconds apiece, maybe up to 30 seconds) would be what you should be aiming for, and only in rare situations go beyond that, but not more than a minute. That's a significant portion of the copyrighted work, and would probably not fall under fair use.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

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Customer: replied 3 months ago.
That's exactly what my research has shown, thank you for clarifying. Next question: would this same set of rules apply to OTHER songs during the same podcast? For example, if we play 15 second clip of Song A by a popular band, and then later in the podcast play 15 seconds of Song B, is that still fair use?

I assume you mean other songs by the same band (because if different bands, there's no question that that would be a separate fair use claim). Yes, the same rules would apply to a different song that you use in the podcast.

Customer: replied 3 months ago.
Awesome, that's really helpful, thank you. OK, one last question and then I will leave you an awesome review! When promoting the podcast, there invariably is some sort of cover image attached to it. For example, when you download the podcast from a site there is usually an image on the page that maybe has some text on it to say "Episode XX" or whatever. Since our podcast will focus on one song by one band at a time, it would be really nice to use the official logo of the group on these images. Is this considered fair use?

That's really not so much a copyright issue than a trademark issue. Copyright-wise, you'd probably be fine. But the name of the band could be trademarked, and fair use doesn't apply to trademark. Now trademark infringement is a bit different, in that for there to be trademark infringement they'd have to show a "likelihood of confusion" that you were holding yourself out to be either the owner of the mark or someone with authorization or approval to use it. Only if there's no such understanding on the part of the consumer would there not be such a likelihood of confusion.

Customer: replied 3 months ago.
OK. Would it be safe to say that we could go ahead and use the logos for promotional purposes and then just take one down if we get a cease and desist from a specific artist?

There's a risk in doing so. Yes, you "could" (in that it's possible that you can do so) but there's no requirement that they send a cease and desist to you prior to suing. They can just sue, even if they don't have a strong case. So understand that this is a risk if you were to do so.

Robert McEwen, Esq. and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 3 months ago.
Understood, we will reflect on that. Thanks so much for your time! Leaving my rating now.

You're welcome, and again, good luck to you!

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