Did You Hear The One About The Lawyer And The Podcast?


You don’t see this every day. A podcaster, who is also a lawyer, poised to break the law. You might be poised to do the same. And while this lawyer can’t claim he didn’t know the law, it turns out neither can you.

Sometimes It Doesn’t Pay to be a Lawyer

Writing in Radioworld* magazine, Ken Deutsch tells the story of his friend, David Milberg, an attorney, broadcast law professor, former air personality and oldies music aficionado who embarked on a quest to play music legally in his new podcast. Having been there myself, I admit to experiencing a certain guilty pleasure while following Milberg’s quixotic journey through various websites, law firms and PRO** representatives as he sought to figure out how much he had to pay to whom to license music from the 50s and 60s.

If you’ve read my previous post, or if you’ve followed the podcast music-licensing fiasco, you know it’s easier to totally debug Windows 10 than it is to untangle the legal mess surrounding podcasts and music.*** That’s what Milberg concluded, too. His plan, now, is to play 20- to 30-second snippets of oldies on his Rare & Scratchy Rock ‘n Roll podcast. According to Deutsch, Milberg’s reasoning is, “I assume the theory behind all of this [is] that these excerpts from the songs [fall] into the ‘fair use’ defense exception to applicable copyright laws.”

Disclaimer: I’m not a Lawyer—Much to My Mother’s Disappointment.

Everything I’ve researched regarding fair use ultimately comes down to these four factors:

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

That seems to leave Milberg on some squishy ground. The clips he plays must be for the purpose of critique or education, not entertainment. And, they must not be so familiar as to damage the value of the larger work. Here’s an example from the Stanford University Libraries web page (linked to above), which by coincidence involves a 60s hit song:

For example, it would probably not be a fair use to copy the opening guitar riff and the words “I can’t get no satisfaction” from the song Satisfaction.

So, can Milberg legally play the hooks from hit songs, the parts we Baby Boomers used to sing while cruising in our ’65 Mustangs? Only one person knows.

Here Comes the Judge

Infringement cases are settled by a trial judge who, as it turns out, is less bound by precedent than Judge Judy. Each case is considered on its merits, which is to say, on how the judge sees things on any particular day. That means what constitutes fair use is decided in hindsight. You used copyrighted material. You believed you were on firm legal ground. The judge said no. Therefore, you’re weren’t. Playing copyrighted music is not for the faint of heart.

And, in the same way you can’t be a little bit pregnant, you can’t be a little bit copyrighted, either.

As Milberg notes, using short clips doesn’t provide a safe harbor when it comes to infringement. Twenty seconds or two seconds, “But it was only a few seconds, Your Honor,” won’t protect anyone from damages. It’s a point of law Milberg finds ignored in dozens of podcasts. He’s not sure why podcasters are taking such risks, but surmises

…it could be a combination of ignorance and/or indifference to applicable copyright laws combined with a lack of concerted compliance enforcement by copyright owners.

If you’re getting away with it for now, be aware that the penalties for copyright infringement are both steep and levied on a per-occurrence basis. Every episode in which you use copyrighted music is eligible for a fine of its own.

I wish Milberg success with his podcast. But, if he’s wrong about the format he might have to rename his show. You’ll find it on iTunes under Rare, Scratchy & Very Expensive Rock ‘n Roll.

**A Performing Rights Organization, e.g., ASCAP or BMI.

***For example, it’s not settled whether playing music in a podcast constitutes a public performance of that music. If not, then there is no need to pay a PRO for performance rights.


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4 Responses

  1. Jay….

    Many thanks for your comments. Interestingly, as part of my ongoing research, I have discovered numerous podcasts that play “big record label” songs all the way through…and while I cannot confirm it, I do not know if these records were licensed or not. You might consider browsing through i-Tunes yourself to see how many such podcasts you can find, too.

    In the meantime, best wishes for super hit days and solid gold nights….and always rock on.

    Radio Dave

    • Jay Douglas says:

      Thanks, Radio Dave…

      I’m as amazed (confused?) as you are. Based on meetings and discussions with other podcasters, it seems many of them are woefully ignorant when it comes to copyright law. The most frequent justification I hear is fair use, e.g., I’m educating people as to what these songs sounded like. The second most-popular “defense” is “I’m only using a part of the song.” Perhaps some oldies podcasters slipped through the cracks of the pre-1972 copyright issue, but after the Gutierrez decision that’s a slippery slope now, too. Maybe some podcasters have money to burn and figure they’ll play whatever they damn please. I suspect the truth lies in what you said in your interview with Ken Deutsch: lack of knowledge coupled with lax enforcement. A dangerous combination whatever the venue.

      I hope you’re the guy to find a solution to all of this. There’d be a raft of podcasters in your debt. Good luck with the legal aspects and with your show. It’s great having another radio pro working in podcasting.

  2. Jay….

    I am pleased to announce that my “Rare & Scratchy Rock ‘N Roll” podcast series now is available for free downloads at the iTunes Store. Just search “Rare & Scratchy” in the “Podcasts” section, or visit my web site http://www.rareandscratchy.com for information on the programs and links to iTunes. This took six months of research and learning all the necessary technology, but the I think the journey is well worth it. I would appreciate your comments, as well as those following your blog, with regard to whether or not you like the shows. And if do like them, please also spread the word on Facebook and any other social media you use…in addition, of course, to your blog.

    Rock on.

    Radio Dave

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