Fair Use: What Podcasters Need to Know

Loeb Entertainment partner Anne Kennedy McGuire is quoted in an article by Forbes discussing how the use of music in podcasts without proper approval can cause issues for podcasters wanting to set themselves apart from the crowd.

Fair use laws, which provide some flexibility in using copyrighted audio, have created confusion for podcasters, who typically utilize music clips at the beginning and during interludes in their podcasts.

Anne said that the idea that podcasters can use portions of audio without prior approval is a common misconception. “I have to dispel this myth at least every other week,” she told Forbes. “There is no hard and fast ‘rule’ that will make a podcaster ‘safe.’”

“Using 30 seconds of a song is often very risky,” Anne continued. “Songs are typically not that long to begin with and courts have considered the ‘substantial’ portion of a song to be only one or two lines in some cases, especially if it’s a particularly iconic song.”

Due to the typical length of most songs, one to two lines can be considered a substantial portion, especially if the song is very well known. While most podcasters see fair use as a right, it is most often used as a defense in the courtroom once they have been sued for copyright infringement, which can come with significant penalties up to $150,000 in statutory damages alone.