Podcasts and copyright
There are a wealth of different podcasts dedicated to dissecting and discussing existing forms of art, from influential musical albums to popular tv series’ to specific genres of film. These podcasts often follow a similar format and feature excerpts from the original works in order to give a flavour of the subject matter being described. This article considers how copyright law treats this use of excerpts and the fine line between their use being permitted by one of the “fair dealing” defences versus excessive use.
What is fair dealing
Fair dealing is a defence or “exception” to copyright infringement. The Copyright Designs and Patents Act 1988 (CDPA) permits fair dealing with certain types of copyright work in certain specific circumstances. This includes where the use of the copyright work is for the purpose of news reporting, criticism or review, quotation or parody, caricature or pastiche. There is no statutory definition of fair dealing, and the case law is relatively limited. It will always be a matter of fact, degree and impression in each case.
Fair dealing for the purpose of criticism and review
For producers of arts, entertainment or music podcasts it may be possible to use short excerpts of third party copyright works without first obtaining a licence if the use of the original copyright work is fair and the purpose for using it is to criticise and review it (other fair defences could be available too, which we will explore in future blog posts). In order to benefit from this particular fair dealing defence, the work must be accompanied by a sufficient acknowledgement (unless this is impossible) and have already been made available to the public.
The use of the copyright work must be clearly connected to the criticism or review. In other words, the criticism or review should normally be of the copyright work itself or (at a stretch) the ideas and philosophies contained in the work. The defence will fail if the use is really just to entertain the listener or to provide “wallpaper”.
There is not a lot of case law available to give producers a feel for how fair dealing for criticism and review works in practice, but Time Warner Entertainment Co plc v Channel Four Television Corporation plc (1994) provides some insights. Time Warner, the owners of the rights in the film “A Clockwork Orange” claimed that Channel 4 was infringing the copyright in the film when Channel 4 created a documentary about it. The one-hour long documentary featured around 12 minutes of footage from the film. Time Warner initially got an interim injunction to prevent the broadcast of the documentary, but the injunction was discharged on the basis that Channel 4 could rely on the defence of fair dealing for the purpose of criticism and review. In this case the quality of the criticism and review was high and there was a clear link between the clips and the review. While this is a useful illustration of the defence in action, be cautious about taking guidance from it, as whether the defence applies and what is fair in each case is always a matter of fact and degree.
Factors to help determine whether fair dealing applies
If the proposed use of a copyright work seems to fall into one of the prescribed fair dealing categories, it must then be established whether the use is “fair”. There is no exact science which can be applied to measure what is “fair” and how much of a copyright work can be used before it exceeds the limits of the fair dealing defence. Every podcast is different, and a combination of different factors will impact the analysis each time.
Examples of important factors when considering whether use of a copyright work in a podcast episode may benefit from the fair dealing defence include:
- The volume, length, and frequency of the excerpts throughout,
- The interplay with the narration sitting over the top of or alongside the excerpt, and
- What proportion of the total copyright work has been taken and what proportion of the total length of the podcast is dominated by the excerpt. Content creators should ensure that the duration of the excerpts is not “greedy” but is limited to what is necessary to achieve the purpose for using it.
The use of the work should also not compete with the copyright owner’s use of its rights. For example, if the podcast is critiquing a musical album, the user should not be able to substitute listening to the podcast with listening to the album itself.
Content creators should reference the work that they are critiquing, ideally before or directly after each specific excerpt plays, to mitigates any risk of confusion as to the ownership over the rights.
If in doubt, get a licence
Fair dealing should not be relied on as a method to help stretch out the production budget. Consider whether it would be more appropriate (both legally and reputationally speaking) to obtain a licence from the rights holder. Regular content creators with shows that focus on critiquing or reviewing musical works should consider an annual commercial music licence for radio and podcast usage. PRS for Music sets out the details of the various types of licence available. For podcasts, see the “Using Music Online” section which provides licence options for the use of copyright works online on behalf of writers, composers and publishers.
This publication is a general summary of the law as at the date of publication. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2023