Ever wonder if you’re allowed to use a teeny tiny snippet of a pop song on your podcast without permission? Has the idea of release forms kept you up at night? Can the mere thought of a courtroom ruin your appetite? Dubbed “the podcast lawyer,” Gordon Firemark is the guy to calm your anxieties.
I sat down with Gordon via Zoom for a chat about the four facets of fair use law, the growth of lawsuits against podcasters, and the illegal trappings of the Bernie inauguration meme.
Portions of this interview have been edited for clarity and content.
How did you become “the podcast lawyer”?
I was a professional sound engineer in live theater before I went to law school. I ended up migrating into radio, television, and film production briefly before I decided to leave when the writers went on strike in Hollywood in 1988. So I went to law school, and here we are over 30 years later. As an entertainment lawyer, I've kept my interest in media and entertainment.
We're not seeing a lot of people thinking it's worth suing podcasters. Yet, it's starting to happen.
Then podcasting came along. I adopted it first as a marketing strategy for my law practice and very quickly I started to see there was a need for information and representation in the podcasting field. I really enjoy helping these kinds of creators to do their thing and stay protected and safe and understand where their creation intersects with the law.
When would a podcaster need to consult a lawyer?
It varies widely. And I wouldn’t say necessarily consulting with a lawyer, but learning the legal playing field on which podcasting is happening. So understanding the basics of intellectual property law, copyrights, and trademarks. Patents don't come into play very often here, but also trade secrets and the legal aspects of journalism.
Because many podcasters are doing journalism, maybe without even really thinking about the fact that when you're reporting on facts and news and talking about people, you have to follow the rules that professional journalists have been following for centuries. And that includes respecting people's privacy, and their rights to the commercial uses of their name and likeness, which is called the right of publicity. And also respecting the truth and not publishing lies that hurt people's reputations, defamation, libel, and slander.
Do you see that often?
What's interesting about podcasting, because it's still an emerging industry, we're not seeing a lot of people thinking it's worth suing podcasters. Yet, it's starting to happen.
I don't do lawsuits. So when it comes in, I refer it out to somebody else. And I, unfortunately, have had enough occasion to do that and I see it as a growing trend. So if media goes out and it causes harm to people, they want to be compensated. They want to be made whole or to stop the media from continuing to be distributed. But that's hard. It's like unringing a bell.
With the internet, when it's up, it's up forever.
Exactly. On a side note, that Bernie meme that we saw after the inauguration is never going to go away. And in fact, that's an interesting area I've been paying attention to is the photographer who took that photo. Well, the company that hired him owns the copyright to that image. And yet, all these memes are out there, people using that image without permission. We'll see if there are any legal repercussions for that.
A meme can be grounds for a fair use lawsuit?
Yes, absolutely. A photographer who makes an image, or designer who creates something, owns the copyright to that work and has the right to control how it's used, when it's used, and under what circumstances. It's one of those things where most of the time there just isn't enough money behind the problem that someone's gonna make a big stink about it.
Podcasting is its own medium, and we have to treat it as such.
In the EU, the law is a little different. There's no such thing as fair use of copyrighted material (by the way, fair use permits limited use of copyrighted material without first needing permission from the copyright holder). Here in the US, I don't think that, for example, the Bernie meme amounts to really fair use.
Yes, people are transforming it a little bit, but they're using the whole image. And they're undermining the market for the original work. And so the four factors in fair use, I don't think they weigh in favor of fair use. But in the EU, there's no such thing. And so they've said, look, if you make a meme and distribute it, you're liable for copyright infringement. The owner of the underlying image can sue. I don't think they're doing that much because you can't squeeze blood from a stone. You know, some 16-year-old kid isn't worth suing. They don't have the resources to make it worthwhile. Yet.
If we transfer that idea into podcasting, and someone uses, let's say, a news clip. Is there a law that states you can use 10 seconds or less without permission? Or you’re fine to use it if you transform it to a certain degree? How does that work?
That’s the fair use exception again at work. There’s no rule of thumb because you can take the substance, the core, the essence of a work without taking very much of it at all.
So there are four factors that we have to consider in fair use. Factor number one: Purpose and character of the infringing use. Is it somehow different in purpose? Does it change the message or the content or the purpose behind it from the original?
Factor number two is the nature of the original work. Is it commercial or artistic? It's more likely to be infringement if the work was a very creative, expressive work. Whereas if it's an advertising work, maybe it doesn't hurt so much.
The third factor is the amount and substantiality of the portion that was taken. So it can be quantitative. But it could also be qualitative. You could take the hook of a song, which might only be two measures of the song. And it would still be the substance, the meat, the most important part qualitatively.
And then the fourth factor is the impact on the market for the original work. And so you have to balance all four of those factors. And there are just no rules of thumb in this area. And that's what makes fair use an unreliable defense.
Not one of those factors tilts the balance all the way in one favor or the other. It's like that game where you're trying to roll a ball through a maze on a plate, you're constantly juggling all four of these axes. You could be using 1% of the song, but you're taking 90% of the substance. Or it could be you take the whole thing, but you're transforming it in a way that makes it so it doesn't really have that impact.
You can take the substance, the core, the essence of a work without taking very much of it at all.
So, unfortunately, we have to do this analysis for every single alleged infringement. And when we get there, that becomes an exercise for us lawyers to engage in.
How does fair use play into a show that's journalistic in nature?
The whole reason that fair use exists is that it’s an acknowledgment of the conflict between a law that says you can't copy this thing at all, and the first amendment constitutional protection that says you have a right to free speech or freedom of the press. So when you're doing journalism, you're acting in the role of the press, or just speech anyway, that freedom is at work. And so the courts recognize this inherent conflict and created this defense, this multifactor, complex, convoluted thing as a way of making sure we were only taking the prohibition as far as needed. The original purpose of copyright is to advance the arts and sciences by encouraging through an economic incentive, encouraging inventors and authors to do their thing. And that's in the constitution also. So it's balancing things on a very sharp point.
That makes things incredibly complicated for creators, and I imagine also for you when you get called into these situations.
Yeah, I've had to get my head around all these factors. And then you really look at any situation, you have to analyze it and figure it out. Which interests are we most likely as a society to support in this? And that's what the courts are here for. And of course, it's political and it's social. And there are all kinds of components to it. Which, again, is why I say, if you're relying on fair use, you're already a step behind, because you're going to spend a lot of time and energy arguing about this stuff.
And that's only the United States. There are a few other countries that honor freedom of speech in explicit ways and it's a common principle, but this fair use (or fair dealing, as it's called in Canada and the UK), it's different everywhere.
Have you seen any issues when it comes to royalty-free music subscription services like Artlist or Soundstripe that, for an annual fee, you can use unlimited songs and you don't have to worry about any copyright issues? Is that a real thing? Or are there caveats?
Well, the caveats are you've got to read and understand the license agreement you’re getting. There could be, I won’t call them traps, but details or loopholes that you have to be mindful of.
For example, with some of these subscription services, as long as you remain a subscriber, you have access to the library. But as soon as you stop being a subscriber, you lose that access, but do you still have the right to use the recordings you've made that use that stuff from before?
I've seen that at least one of the services isn't quite doing that. Meanwhile, on others, the whole point is that it's an ‘eat-all-you-want’ kind of a model and then it's yours forever, as long as you had a license when you made use of the song. So that's one side of the equation. Some of them basically say, yeah, you can license this music, but it's a one-time use. So for each episode, you have to pay a new fee. So you have to read carefully.
The other side of it: I’ve seen a situation where somebody licensed music through one of those subscription services, and neither they nor the subscription service realized that the person who had uploaded it did not have the rights. Eventually the real composer comes along and says, ‘Wait a minute.’
In that given case, the composer who had made it was getting ripped off. And so he sued everyone who used the clips, including the service where it was uploaded. They ended up settling and working it out, but the point is you’ve got to be dealing with trustworthy people at all levels of the transactions.
If you're relying on fair use, you're already a step behind.
I find it interesting that the people who downloaded the song, thinking it was legal, would get in trouble when it seems it’s the company at fault.
Well, copyright infringement is a strict liability thing. So if you copy without permission from the rightful owner, you're done. You did something wrong. It’s like if you're in a cafe, and you pick up a cell phone, thinking it’s yours, and you walk out. It's a mistake, but it's not the owner’s mistake, it's the user’s mistake.
And so the user gets to go back to the service that sold them the music and say, ‘Hey, make me whole.’ By that I mean pay their legal fees, pay them on the rights etc. And assuming that the user agreement, the terms of service, have that covered, then that's called indemnification. And then the service has to get recompense from the wrongdoer who uploaded the material without proper permission. Basically, the approach lawyers take is you sue everybody, and you let them figure it out.
Everybody where there's a reasonable case, of course.
If you had a magic wand and you could dispel a widespread myth or misconception in podcast law, what would it be?
I guess it would be for the people who say, “I worked in radio for 30 years, and we never did it that way. So why should it be different here?”
Podcasting isn't over-the-air broadcasting. So we have a different channel of communication. And there's an exception for broadcasting that doesn't exist for digital recording. So we have different rights holders and licenses to deal with, and that's just on the copyright issue.
“In radio, we never used a guest release when we had someone come on our show.” Well, that’s because the guest would talk for 15 or 20 minutes and the show would air and nobody would ever hear it again. With podcasts, the content is available, in most cases, forever.
Anybody who's going to sit down and do an interview, I think you should have a release.
And so while someone may have said something a little harmful to someone out there on radio, an hour later, nobody was hearing it anymore. Here, we've got those issues. So using a guest appearance release, I think is tremendously important. Podcasting is its own medium, and we have to treat it as such.
For those waivers, should you get one for anybody and everybody you talk to?
I think it’s better to err on the side of caution. And anybody who's going to sit down and do an interview, I think you should have a release. That goes for anybody you're going to film or record at length.
Now, if you're just going out on the street and sticking a microphone in someone's face and saying, “Hey, what do you think about the latest XYZ?” then they're out in public and they don't really have much expectation of privacy. They see the microphone, they know they're out where other people can hear them and express their thoughts and so on.
As long as you're doing it for non-commercial use, you're not making a commercial advertisement with their voice, chances are you’ll be okay. But again, these are the same rules that apply to video or film or photography. If your person is going to become the core subject of an episode or have a segment, it's best to get something in writing that you own what they do, you have the right to use it, and they won't sue you.
Like any new industry, there are growing pains and there is a learning curve. I think that as more podcasts wind up on exclusive deals with major platforms, those folks are going to start doing things a certain way. And that will become the de-facto standard.
If you're serious about podcasting, whether you intend to make money or not, you need to start thinking professionally about it and treating it as a business.
I don't know that they'll always do it the way I would say is the right way. But you know, when you're Spotify, you can afford to defend all kinds of claims because your host didn't get a release from their guests. But you and I sit down and we record an episode and publish it and that guest is unhappy, they can make trouble for us. So it's a question of scale.
The other thing is we’re seeing more growth in the platform-exclusive side of it, which isn’t exactly the same as podcasting. Podcasting feels egalitarian, anybody with a few bucks can sign up for hosting and make a show. So we're seeing more big level production. And with that, people will start to see dollar signs.
For podcasters who want to dive into the weeds of law, where do you recommend they go?
I will issue a caveat: Don't get your legal advice from online if you have a real legal problem. It makes sense to talk to somebody and it doesn't have to be colossally expensive. If you're serious about podcasting, whether you intend to make money or not, you need to start thinking professionally about it and treating it as a business. Because people who want to take you down are gonna look at it like a business and do that.
I think podcasting is a tremendously powerful medium. It's exciting, even though it has its trouble spots, its wrinkles that we need to be aware of. Being well-informed makes you well-armed against these kinds of problems.