PODCASTING & LAW

Seattle University Law School

Colette VogeleVogele & Associates

http://www.vogelelaw.com

Fellow, Stanford Law SchoolCenter for Internet and Society

http://cyberlaw.stanford.edu

What is podcasting?What is podcasting?

• ““iPod” + “broadcasting” (also iPod” + “broadcasting” (also audioblogging or videoblogging/“vlogging”) audioblogging or videoblogging/“vlogging”) -- a bit misleading.-- a bit misleading.

• Distribution of audio or audio/video Distribution of audio or audio/video programs (“podcasts”/“episodes”) programs (“podcasts”/“episodes”) automaticallyautomatically over the Internet through a over the Internet through a “publish and subscribe” model.“publish and subscribe” model.

• Requires computer, internet connection, Requires computer, internet connection, microphone, and software (freely microphone, and software (freely available).available).

HistoryHistory

• One aspect of “social computing”One aspect of “social computing”

• Technical roots -- 2001 -- blogs are keyTechnical roots -- 2001 -- blogs are key

• Several technologies had to be in place: Several technologies had to be in place: high-speed Internet, MP3 formats, software high-speed Internet, MP3 formats, software that allows for subscriptions, digital media that allows for subscriptions, digital media players. players.

• Dave Winer -- RSS software; Adam Curry -- Dave Winer -- RSS software; Adam Curry -- popularizing the content of podcasts; many popularizing the content of podcasts; many others (see Wikipedia - controversy)others (see Wikipedia - controversy)

• According to Wikipedia, the term “Podcasting” According to Wikipedia, the term “Podcasting” was first used in February 2004was first used in February 2004

5 basic steps …5 basic steps …anyone can do this!anyone can do this!

1.1. Record your contentRecord your content2.2. Edit your content (add intros/outros, music, Edit your content (add intros/outros, music,

delete your ums/uhs)delete your ums/uhs)3.3. Upload the audio/video content to web serverUpload the audio/video content to web server4.4. Create your RSS feed pointing to your content Create your RSS feed pointing to your content

(include your “tags” -- file’s full address, (include your “tags” -- file’s full address, title, length, type, and descriptiontitle, length, type, and description

4.54.5 (opt.) validate your feed (opt.) validate your feed (http://rss.scripting.com)(http://rss.scripting.com)

5.5. Submit your podcast episode to podcast Submit your podcast episode to podcast directoriesdirectories

Some statisticsSome statistics• Pew Internet & American Life Project: More than 22 million US adults own an iPod or other MP3 player (13% of men and 9% of women)

20% of the 18- to 28-year-old market owns an iPod or other MP3 player

29% of the people who own an iPod or MP3 player have downloaded a podcast

This translates to 6 million U.S. adults who have downloaded podcasts.

More StatisticsMore Statistics

Forrester Research expects 12 12 million householdsmillion households to be regular podcast listeners by 2010.

Tony Perkins (AlwaysOn): for for the average 21-year old kid the average 21-year old kid (which is the heart of IMers), (which is the heart of IMers), 62% of content read on line is 62% of content read on line is generated by someone they know.generated by someone they know.

How is Podcasting being How is Podcasting being Used? Used?

• Hobbyists Hobbyists • Academics - podcasting the Academics - podcasting the classroomclassroom

• Musicians - myspace, MTV, pumpaudioMusicians - myspace, MTV, pumpaudio• Film-makers - independent film Film-makers - independent film distributiondistribution

• News organizationsNews organizations• Sports/entertainment organizationsSports/entertainment organizations• ““Traditional” BusinessesTraditional” Businesses

Podcasts in Traditional Podcasts in Traditional CompaniesCompanies

• Internally - Employee Internally - Employee communications, training, HR, communications, training, HR, moralemorale

• ExternallyExternally Consumer-focused podcasts (like radio shows) provide product advertising/education.

Business-focused podcasts – marketing tools for businesses of all types

Overview of Legal Overview of Legal IssuesIssues

• CopyrightCopyright

• Right of PublicityRight of Publicity

• TrademarkTrademark

CopyrightCopyright

• Copyright protects creative Copyright protects creative expression.expression.

• Provides the © owner exclusive rights Provides the © owner exclusive rights to control certain activities in to control certain activities in relation to a creative work. relation to a creative work.

• Constitutionally based (Art. I, §. 8, Constitutionally based (Art. I, §. 8, Cl. 8)Cl. 8)

• The “engine of creativity”.The “engine of creativity”.• A restriction on speech -- in careful A restriction on speech -- in careful balance with the First Amendment.balance with the First Amendment.

Examples of ©’d Works Examples of ©’d Works Used In PodcastsUsed In Podcasts

• Texts (displayed, read aloud, etc.)Texts (displayed, read aloud, etc.)

• Still Images (displayed)Still Images (displayed)

• Music (performed, intros/outros)Music (performed, intros/outros)

• Video images & audio-video content Video images & audio-video content

(performed/ displayed)(performed/ displayed)

• Interviews of othersInterviews of others

© Owner’s Rights © Owner’s Rights (§106 Exclusive Rights)(§106 Exclusive Rights)

• reproductionreproduction

• distributiondistribution

• public performancepublic performance

• public displaypublic display • prepare derivative worksprepare derivative works

Do I Need Permission?Do I Need Permission?

Podcasters need permission, Podcasters need permission, exceptexcept when they:when they:

1.1. Use a fact, idea, theory, slogan Use a fact, idea, theory, slogan or short phraseor short phrase

2.2. Use works in the public domain Use works in the public domain 3.3. Use US government worksUse US government works4.4. Make a “Fair Use”Make a “Fair Use”5.5. Use “Podsafe” ContentUse “Podsafe” Content6.6. Use works in certain educational Use works in certain educational

settingssettings

Facts/ideas - not Facts/ideas - not protectedprotected

• Copyright Act Copyright Act excludesexcludes any " any "idea idea procedure, process, system, method of procedure, process, system, method of operation, concept, principle, or operation, concept, principle, or discovery discovery regardless of formregardless of form in which it in which it is described, explained, illustrated, or is described, explained, illustrated, or embodiedembodied" from protection (get a " from protection (get a patent!)patent!)

• Examples of unprotectable Examples of unprotectable facts/ideas (news articles, recipes, facts/ideas (news articles, recipes, stock characters in a book)stock characters in a book)

© Duration and Public © Duration and Public domaindomain

• Copyright is not forever, but Copyright is not forever, but it is for a very long time.it is for a very long time.

• 4 main ways a work may enter 4 main ways a work may enter the public domain: the public domain:

1.1. Expiration of the term (published Expiration of the term (published works pre-1923)works pre-1923)

2.2. © protection for the work improperly © protection for the work improperly maintained (pre-1989 only)maintained (pre-1989 only)

3.3. Unpublished work w/ special rules Unpublished work w/ special rules

4.4. Dedication by author/rights holderDedication by author/rights holder

Public Domain - Public Domain - exceptionexception

• Public domain works may be Public domain works may be incorporated into another work incorporated into another work that is copyright-protected. that is copyright-protected.

• Examples: Examples: 1.1. Peter PanPeter Pan

2.2. Slavish photographs of PD Mona Lisa Slavish photographs of PD Mona Lisa vs. photographs of a PD statuevs. photographs of a PD statue

3.3. Text of book in PD vs. later editions Text of book in PD vs. later editions not protected; translations of PD not protected; translations of PD books may also still be protected)books may also still be protected)

US government worksUS government works

• Works created by a US government Works created by a US government employee or officer, as part of employee or officer, as part of their official duties, are not their official duties, are not protected by copyright.protected by copyright. • Federal and state statutes and Federal and state statutes and judicial opinions are not protected judicial opinions are not protected by copyright.by copyright.

• Extends only to federal officials Extends only to federal officials and also, only to employees.and also, only to employees.

Fair UseFair Use

• Copying any protected material for a Copying any protected material for a limited and “transformative” purpose, limited and “transformative” purpose, like criticizing, commenting, parodying, like criticizing, commenting, parodying, news reporting, scholarship or research. news reporting, scholarship or research.

• Four factors:Four factors:1.1. Purpose/Character of the usePurpose/Character of the use2.2. Nature of the copyrighted workNature of the copyrighted work3.3. Amount and substantiality in comparison to overall Amount and substantiality in comparison to overall

workwork4.4. Effect on market for copyrighted work Effect on market for copyrighted work

• 2 misconceptions: acknowledgement & 2 misconceptions: acknowledgement & disclaimers are not enough.disclaimers are not enough.

New Resources New Resources for Fair Usefor Fair Use

• Duke comic book (Duke comic book (http://www.law.duke.edu/cspd/comics/http://www.law.duke.edu/cspd/comics/

))

• NYU’s Brennan Ctr - “Will Fair Use NYU’s Brennan Ctr - “Will Fair Use Survive?”Survive?”((http://www.fepproject.org/policyreports/WillFairUseSurvhttp://www.fepproject.org/policyreports/WillFairUseSurvive.pdf) ive.pdf)

• Center for Social Media - best practices Center for Social Media - best practices (http://centerforsocialmedia.org/fairuse(http://centerforsocialmedia.org/fairuse)) • Stanford’s Fair Use website: (Stanford’s Fair Use website: (http://http://fairusefairuse

..stanfordstanford

.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html) )

PODSAFE CONTENTPODSAFE CONTENT(mostly music, but video is also now (mostly music, but video is also now

available)available)• Creative Commons works (but read the Creative Commons works (but read the license!)license!)

• www.www.magnatunemagnatune.com.com

• http://music.http://music.podshowpodshow.com/.com/

• http://www.podsafeaudio.com/http://www.podsafeaudio.com/

• ASM: ASM: http://www.http://www.musicpodcastingmusicpodcasting.org/.org/

• iPodArmy:iPodArmy:http://www.ipodarmy.com/2005/06/how-to-http://www.ipodarmy.com/2005/06/how-to-find-podsafe-music/find-podsafe-music/

• And others -- search for “podsafe” + And others -- search for “podsafe” + the type of content you seekthe type of content you seek

Is a Podcast Really a Is a Podcast Really a “Performance”?“Performance”?

• US Copyright Office says: “unsettled”US Copyright Office says: “unsettled”• No court has squarely addressed the No court has squarely addressed the issue issue

• Commentators suggest that non-Commentators suggest that non-simultaneous transmissions (like simultaneous transmissions (like podcasts) probably are not “public podcasts) probably are not “public performances”performances”

• Aggregators (ASCAP, BMI, SESAC) assert Aggregators (ASCAP, BMI, SESAC) assert that that anyany Internet transmission (whether Internet transmission (whether streaming or download) is a “public streaming or download) is a “public performance”performance”

Getting a LicenseGetting a License

• If your use does not fall If your use does not fall within the exceptions discussed within the exceptions discussed above, you will need a license above, you will need a license from the author of the work from the author of the work (text, images, music or video).(text, images, music or video).

Types of © worksTypes of © works(§ 103 Copyright Subject matter)(§ 103 Copyright Subject matter)

• literary works (texts)literary works (texts)

• musical work (the lyrics/music)musical work (the lyrics/music)

• sound recording (audio sound recording (audio reproduction of music)reproduction of music)

• motion pictures and other a/v motion pictures and other a/v works (movies, films, animation)works (movies, films, animation)

• dramatic works (screenplay, dramatic works (screenplay, scripts, music)scripts, music)

• sound recording (soundtrack)sound recording (soundtrack)

© Owner’s Rights © Owner’s Rights (§106 Exclusive Rights)(§106 Exclusive Rights)

• reproductionreproduction

• distributiondistribution

• public performancepublic performance

• public displaypublic display • prepare derivative worksprepare derivative works

Licenses - text/written Licenses - text/written contentcontent

• If you use copyrighted texts, and If you use copyrighted texts, and the use does not fit one of the the use does not fit one of the exceptions previously discussed, exceptions previously discussed, you need a licenseyou need a license from the author from the author or rights-holder to reproduce the or rights-holder to reproduce the text on-line, to read (“perform”) text on-line, to read (“perform”) or “display” the text in your or “display” the text in your podcast.podcast.

Licenses Needed to Put Licenses Needed to Put ©’d Music & Video in a ©’d Music & Video in a

PodcastPodcastif your podcast includes if your podcast includes musicmusic, , then you need a license for:then you need a license for:

1.1.using the underlying musical work using the underlying musical work (Harry Fox)(Harry Fox)

2.2.performing the musical work (ASCAP, performing the musical work (ASCAP, BMI, SESAC) (BMI, SESAC) (unresolved questionunresolved question!)!)

3.3.playing a sound recording of a playing a sound recording of a performanceperformance

4.4.reproduction of a sound recording reproduction of a sound recording in the podcast (record companies)in the podcast (record companies)

Licenses needed Licenses needed (cont’d)(cont’d)

if your podcast includes if your podcast includes videovideo, then , then you may also need:you may also need:

5.5. a “sync” license (for a “sync” license (for synchronizing music to video) and synchronizing music to video) and

6.6. a “videogram” license (for selling a “videogram” license (for selling the podcast to the public).the podcast to the public).

Right of PublicityRight of Publicity

ROP in Wash. - What is ROP in Wash. - What is it?it?

Every individual or personality has a Every individual or personality has a property right in the use of their property right in the use of their name, voice, signature, photograph or name, voice, signature, photograph or likeness. (likeness. (seesee RCW 63.60.010) RCW 63.60.010)

Individual vs. Personality: Individual vs. Personality: For an “individual” (a natural person) For an “individual” (a natural person) rights continue for 10 years after deathrights continue for 10 years after death

For a “personality” (any individual For a “personality” (any individual whose “publicity” has commercial value) whose “publicity” has commercial value) rights continue for 75 years after rights continue for 75 years after death.death.

ROP in Wash.: ROP in Wash.: InfringementInfringement

““Any person who uses … a[n] individual's Any person who uses … a[n] individual's or personality's name [etc.] on or in or personality's name [etc.] on or in goods … entered into commerce in this goods … entered into commerce in this state [or for advertising or fund state [or for advertising or fund raising], or if any person disseminates raising], or if any person disseminates … such advertisements in this state, … such advertisements in this state, without written or oral, express or without written or oral, express or implied consent … has infringed such implied consent … has infringed such right …” (right …” (see see RCW 63.60.050)RCW 63.60.050)

Does not matter whether for profit or Does not matter whether for profit or not for profit.not for profit.

ROP in Wash. - ROP in Wash. - LiabilityLiability

Anyone who infringes “shall be Anyone who infringes “shall be liable for the greater of” $1,500 liable for the greater of” $1,500 or actual damages and “any profits or actual damages and “any profits that are attributable to the that are attributable to the infringement and not taken into infringement and not taken into account when calculating actual account when calculating actual damages.” (damages.” (seesee RCW 63.60.060) RCW 63.60.060)

In addition: injunctions, In addition: injunctions, impoundment, destruction, and impoundment, destruction, and attorneys feesattorneys fees

ROP in Calif.ROP in Calif.

• Any person who Any person who knowinglyknowingly uses uses another’s name, voice, likeness another’s name, voice, likeness “in any manner” on or in a product “in any manner” on or in a product (or for advertising a product or (or for advertising a product or service) without prior consent service) without prior consent “shall be liable” (CCP § 3344)“shall be liable” (CCP § 3344)• Liable for actual damages (min. Liable for actual damages (min. $750) + profits resulting from the $750) + profits resulting from the injury, punitive damages, injury, punitive damages, andand attorneys’ feesattorneys’ fees

ROP in Calif. -- ROP in Calif. -- Statutory ExceptionsStatutory Exceptions

• Use of likeness of an employee where Use of likeness of an employee where image is incidental (not essential) = image is incidental (not essential) = rebuttable presumption that failure to rebuttable presumption that failure to obtain consent was not a knowing obtain consent was not a knowing violation of §3344violation of §3344

• For use in connection with news, public For use in connection with news, public affairs, or sports broadcast or account, affairs, or sports broadcast or account, or any political campaign, consent is or any political campaign, consent is not required.not required.

• Not applicable against a news Not applicable against a news organization (etc) that publishes the organization (etc) that publishes the images/likeness, unless they had images/likeness, unless they had knowledge that the use was unauthorized.knowledge that the use was unauthorized.

ROP & 1st AmendmentROP & 1st Amendment

For public figures, the For public figures, the podcaster can use the podcaster can use the name/likeness so long as it is name/likeness so long as it is done (1) in a truthful way and done (1) in a truthful way and (2) does not imply a false (2) does not imply a false endorsement of the endorsement of the podcaster/podcast by the public podcaster/podcast by the public figure.figure.

Legal implicationsLegal implications

No right of publicity decisions No right of publicity decisions based on a podcast to datebased on a podcast to date

Like blogging issues, how Like blogging issues, how §3344(d) applies to a podcast §3344(d) applies to a podcast -- e.g., whether it’s a news, -- e.g., whether it’s a news, public affairs, or sports public affairs, or sports broadcaster account, or any broadcaster account, or any political campaign-- remains to political campaign-- remains to be determined.be determined.

Trademark IssuesTrademark Issues

Two FlavorsTwo Flavors

InfringementInfringement Likelihood of confusion standardLikelihood of confusion standard

Dilution (famous marks only)Dilution (famous marks only) Tarnishment (promoting a product Tarnishment (promoting a product that is considered offensive -- that is considered offensive -- e.g., “Disneyland” for X-rated e.g., “Disneyland” for X-rated podcast)podcast)

Blurring (when consumers blur two Blurring (when consumers blur two companies in their minds -- e.g. companies in their minds -- e.g. “Nike Hemorrhoid Discussion Group” “Nike Hemorrhoid Discussion Group”

When permission is NOT When permission is NOT neededneeded

Like in traditional media and Like in traditional media and practice (in the off-line world), practice (in the off-line world), “nominal” or “editorial” uses are “nominal” or “editorial” uses are permitted. permitted.

Comparative advertising uses also Comparative advertising uses also OKOK

No obligation to identify every No obligation to identify every mark as a “registered” trademark. mark as a “registered” trademark.

Legal implicationsLegal implications

Be cognizant, as in any Be cognizant, as in any advertising, how the TMs owned advertising, how the TMs owned by others are used.by others are used.

Police use of a business’ Police use of a business’ trademarks, but be careful not trademarks, but be careful not to overstep the rights granted to overstep the rights granted by TM law. (“For Dummies” by TM law. (“For Dummies” Example)Example)

PredictionsPredictions

Content distribution is changing rapidly Content distribution is changing rapidly - the requirement of - the requirement of user interactionuser interaction is is growinggrowing

Podcasting is one of the first new Podcasting is one of the first new technologies that businesses are technologies that businesses are implementing quicklyimplementing quickly

Video podcasting will grow more rapidly Video podcasting will grow more rapidly than audio podcasting or blogging, but than audio podcasting or blogging, but only if bandwidth opens up, remains only if bandwidth opens up, remains available, and if technologies bring the available, and if technologies bring the content to the devices we carry (most content to the devices we carry (most likely cell phones)likely cell phones)

ConclusionsConclusions The current copyright system will need to The current copyright system will need to deal with these new pressures. deal with these new pressures.

Organizations like CC and others that Organizations like CC and others that provide options will test new ways of provide options will test new ways of handling content.handling content.

Charlene Li’s (Forrester Research), three Charlene Li’s (Forrester Research), three predications regarding Social Computing: predications regarding Social Computing: (1) innovation will shift from top-down to bottom (1) innovation will shift from top-down to bottom upup

(2) value will shift from ownership to experience(2) value will shift from ownership to experience (3) power will shift from institutions to (3) power will shift from institutions to communitiescommunities

(http://blogs.forrester.com/charleneli/2006/02/forrsters_socia.html)(http://blogs.forrester.com/charleneli/2006/02/forrsters_socia.html)

FOR MORE INFORMATIONFOR MORE INFORMATION

COLETTE VOGELECOLETTE VOGELEVogele & AssociatesVogele & Associates

580 California St., Suite 1600580 California St., Suite 1600San Francisco, CA 94104San Francisco, CA 94104

Tel: 415.751.5737Tel: 415.751.5737Email: colette@vogelelaw.comEmail: colette@vogelelaw.comWeb: Web: http://www.http://www.vogelelawvogelelaw.com.com

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© 2006 Vogele & Associates.”© 2006 Vogele & Associates.”