How is it that This Week in Startups (or any other podcast) can use copyrighted music for jingles/opening and not be in legal trouble?
Did JCal get permission from Kanye and Fox to use these, or is there some kind of fair use thing going on here because he's only using X seconds worth of the tune?
As a new podcaster, this is one thing I haven't figured out--how are all these other shows able to use copyrighted sound clips, but everything I have read thus far says I cannot?
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M$3 Answers
"Fair use ends when the multimedia creator loses control of his product's use, such as when it is accessed by others over the Internet."
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M$
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M$
"Fair use" does not mean you can use short segments of people's music in anything you like. It is limited to particular uses, for example if you were reviewing a song, you could include a little clip to illustrate what you're talking about.
Fair use case law mean even very short segments can land you in trouble if they are considered distinctive and valuable in themselves, for example the opening seconds of "I can't get no satisfaction" by the Stones.
Seems like the more I read, the more I see that I clearly should not be using copyrighted material unless I can somehow secure permission. Maybe I'll produce my own music then. I didn't want to go that route (though I have the skills), but it could be fun--if time consuming. ;)
Wikipedia asks its authors to use no more than 30 seconds or 10% of a song.... but generally speaking, Wikipedia is there to provide information about that song or genre, so the fair use doctrine obviously applies (1).
Everything I've read about fair use thus far seems to indicate that you need to be generally talking _about_ that content (be it musical, images or otherwise) which you are using for it to be considered fair use (2).
Then I stumbled upon a scenario (example 3 in link 3, below) that basically lays out what any profitable podcaster is doing today (doing a show, selling ads), and the burden of proof lies on the podcaster to defend his fair use claim. Even in example 3, though, that's a show about music, and it reviews music.
(1) http://en.wikipedia.org/wiki/Wikipedia:Non-free_content
(2) http://wiki.creativecommons.org/Podcasting_Legal_Guide#Fair_Use_Under_Copyright_Law_And_Its_Application_To_Podcasts.
(3) http://wiki.creativecommons.org/Podcasting_Legal_Guide#Examples_Of_Fair_Use_That_May_Apply_In_Podcasting.
@michaelpaul.... if you want to know more about fair use, check out some of my previous answers on the subject like these...
http://www.mahalo.com/answers/internet-law/is-republishing-of-whole-pages-of-copyrighted-web-pages-ever-legitimate-fair-use
http://www.mahalo.com/answers/entertainment/is-it-legal-to-take-a-still-photograph-from-a-movie-and-publish-it-under-creative-commons
They have a useful video, and links to good sites in them.
You can pay for audio clips at http://www.istockphoto.com/audio.php
You may also try contacting the artist directly through twitter, facebook or myspace. I would be flattered if you or any other podcaster wanted to use my music. I would even consider creating an original composition if the podcaster agreed to give me credit.
-Steve
http://www.redfxmusic.com
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M$
Yeah, you're right. Oh well. I'm not interested in being served with a take-down notice. Thanks for the answer.
I do not think that is fair use. Fair use is intended for educational purposes, not for making money.
That's what I was thinking... unless they bought a license from Kanye or somehow got his permission. Same for the 20th century fox fanfare. I have so many times in my podcast where it's a great time to use a particular sound effect from somewhere, but it's copyrighted and so I choose not to because I can't find an answer that I can trust.
There's also a podcast that has intros and outros consisting of funny sound clips/quotes from tv shows or movies. Family Guy is the source of most of them, but the podcast also uses other sounds throughout, that are clearly from tv shows or motion pictures. Is that fair use, given that the podcast uses them merely for intros, outros, and punchline accents?