PODCASTING & LAWNew Media Meets

Traditional Business

Colette VogeleVogele & Associates, www.vogelelaw.com Email: colette@vogelelaw.com Tel: 415.751.5737

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

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

music, delete your ums/uhs)music, delete your ums/uhs)3.3. Upload the audio/video content to web Upload the audio/video content to web

serverserver4.4. Create your RSS feed pointing to your Create your RSS feed pointing to your

content (include your “tags” -- file’s full content (include your “tags” -- file’s full address, title, length, type, and address, title, length, type, and descriptiondescription(opt.) validate your feed ((opt.) validate your feed (http://rss.scripting.comhttp://rss.scripting.com))

5.5. Submit your podcast episode to podcast directoriesSubmit your podcast episode to podcast directories

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 million households to be regular podcast listeners by 2010.

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

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

• Hobbyists Hobbyists • Academics - podcasting the classroomAcademics - podcasting the classroom• Musicians - myspace, MTV, pumpaudioMusicians - myspace, MTV, pumpaudio• Film-makers - independent film distributionFilm-makers - independent film distribution• News organizationsNews organizations• Sports/entertainment organizationsSports/entertainment organizations• ““Traditional” BusinessesTraditional” Businesses

Podcasts in Traditional Podcasts in Traditional CompaniesCompanies

• Internally - Employee communications, Internally - Employee communications, training, HR, moraletraining, HR, morale

• ExternallyExternally Consumer-focused podcasts (like radio

shows) provide product advertising/education. Business-focused podcasts – marketing tools

for businesses of all types

ExamplesExamples

WHIRLPOOL’S PODCAST (building customer confidence)

http://www.whirlpool.com/custserv/http://www.whirlpool.com/custserv/promo.jsp?sectionId=563promo.jsp?sectionId=563

GM’s PODCAST FROM TRADESHOW (outreach)

http://fastlane.gmblogs.com/podcast/http://fastlane.gmblogs.com/podcast/SaturnSky.m4vSaturnSky.m4v

Granick’s Circuit Court podcast from Wired Granick’s Circuit Court podcast from Wired (media): (media): http://sonibyte.com/audio/395.mp3 http://sonibyte.com/audio/395.mp3

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/audio-video content Video/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 in which it is described, explained, it is described, explained, illustrated, or embodiedillustrated, or embodied" from " from protection (get a patent!)protection (get a patent!)

•Examples of unprotectable Examples of unprotectable facts/ideas (news articles, facts/ideas (news articles, recipes, spy characters in a book)recipes, spy 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, like criticizing, commenting, parodying, news reporting, scholarship parodying, news reporting, scholarship or research. 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.ive.pdfpdf) )

• 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://fairuse//fairuse..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 some video (mostly music, but some video

is also now available)is also now available)• Look for Creative Commons works (but Look for Creative Commons works (but read the license first!)read the license first!)

• 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-http://www.ipodarmy.com/2005/06/how-to-find-podsafe-music/to-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, If you use copyrighted texts, and the use does not fit one of and the use does not fit one of the exceptions previously the exceptions previously discussed, you need a license discussed, you need a license from the author or rights-from the author or rights-holder to reproduce the text holder to reproduce the text on-line, to read (“perform”) or on-line, to read (“perform”) or “display” the text in your “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 , then

you need a license for: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

performanceperformance4.4.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).

Calif. Right of Calif. Right of PublicityPublicity

• 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”“shall be liable”

• 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

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

Legal implicationsLegal implications

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

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

Trademark IssuesTrademark Issues

InfringementInfringement Likelihood of confusion standardLikelihood of confusion standard

Dilution (famous marks only)Dilution (famous marks only) Tarnishment (promoting a product that is Tarnishment (promoting a product that is

considered offensive -- e.g., “Disneyland” for considered offensive -- e.g., “Disneyland” for X-rated podcast)X-rated podcast)

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

When permission is NOT When permission is NOT neededneeded

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

Comparative advertising uses also OKComparative advertising uses also OK No obligation to identify every mark as a No obligation to identify every mark as a

“registered” trademark. “registered” trademark.

Legal implicationsLegal implications

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

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

PredictionsPredictions

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

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

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

ConclusionsConclusions

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

Organizations like CC and others that provide Organizations like CC and others that provide options will test new ways of handling content.options will test new ways of 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 up(1) innovation will shift from top-down to bottom up (2) value will shift from ownership to experience(2) value will shift from ownership to experience (3) power will shift from institutions to communities(3) power will shift from institutions to communities

(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.com

Web: Web: http://www.http://www.vogelelawvogelelaw.com.com

All content in this presentation is licensed under the Creative Common’s All content in this presentation is licensed under the Creative Common’s Attribution-NonCommercial-ShareAlike 2.5 License. Attribution-NonCommercial-ShareAlike 2.5 License.

Please attribute this presentation as follows: Please attribute this presentation as follows: ““Podcasting & Law: New Media Meets Traditional Business Podcasting & Law: New Media Meets Traditional Business

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