podcasting & the law(rules for the revolution)

Colette Vogele Vogele & Associates

Stanford Center for Internet & Society

Podcasting

ipod + broadcasting?

audio/video programs + automatically + via a ‘publish & subscribe’ model

rss

key components: computer, internet, microphone, free software

brief history

social computing, web 2.0

blogging’s impact

technology (rss+)

first used in sept. 2004

how are people using podcasts today?

how to?Record your content

Edit your content (add intros/outros, music, delete your ums/uhs)

Upload the audio/video content to web server

Create your RSS feed

(opt.) validate your feed (http://rss.scripting.com)

Submit your podcast episode to podcast directories

by the numbers...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. (source: Pew Internet & American Life Project)

more numbers...

Forrester Research expects 12 million households to be regular podcast listeners by 2010.

for the average 21-year old kid (which is the heart of IMers), 62% of content consumed is generated by someone they know. (tony perkins)

overview of key legal issues

copyright

trademarks

right of publicity

copyright

copyright

a few basics - review of what you’ve already learned in class

3 messy issues

copyright - roots

protects creative expressionconstitutional: art. I, § 8, cl. 8statutory: 17 USC § 101“engine of creativity”in balance with the First Amendment

what sorts of things do we find in podcasts that are protected by copyright?

subject matter

§ 106 rights

what rights under the copyright act are implicated by podcasting?

issue 1: is a podcast a

“public performance”

is a podcast a “public performance”?

US Copyright Office says...?

Courts say...?

Aggregators (like BMI/ASCAP/SESAC) say...?

Commentators say...?

do i need permission?

you need permission except when you:

use a fact, idea, theory, slogan

use a work from the public domain

use a US government work

are making a ‘fair use’

use ‘podsafe’ content

are in certain educational settings

fair use(a hornet’s nest)

copying any protected material for a limited and “transformative” purpose, like criticizing, commenting, parodying, news reporting, scholarship or research

fair use factors

Purpose/Character of the use

Nature of the copyrighted work

Amount and substantiality in comparison to overall work

Effect on market for copyrighted work

AND that “fifth factor”...

issue 2: mash-ups and remixes

charlie brown, dj dangermouse gray album...

are these permitted under copyright?

should they be? should they not be?

2 misconceptions

disclaimers

attribution/acknowledgments

Fair Use Resourceshttp://www.ourmedia.org/learning-center/topic/law

http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf

http://centerforsocialmedia.org/fairuse

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

http://www.law.duke.edu/cspd/comics/

if i don’t have permission...

clear the rights by getting a license

risk getting sued...

maybe even go to jail (if you’re counterfeiting) ...

issue 3: rss

if a content producer sends her content out by an rss feed, is there an implied license to do this?

if so, what is the scope of such a license?

right of publicity

right of publicity

Every individual or personality has a property right in the use of their name, voice, signature, photograph or likeness. (RCW 63.60.010)

ROP: Infringement“Any person who uses … a[n] individual's or personality's name [etc.] on or in goods … entered into commerce in this state [or for advertising or fund raising], or if any person disseminates … such advertisements in this state, without written or oral, express or implied consent … has infringed such right …” (RCW 63.60.050)

ROP: Infringement

Does not matter whether for profit or not for profit.

ROP: Remedies

Anyone who infringes “shall be liable for the greater of” $1,500 or actual damages and “any profits that are attributable to the infringement and not taken into account when calculating actual damages.” (see RCW 63.60.060)

Also: injunctions, impoundment, destruction, and attorneys fees

ROP: CaliforniaAny person who knowingly uses another’s name, voice, likeness “in any manner” on or in a product (or for advertising a product or service) without prior consent “shall be liable” (CCP § 3344)

Liable for actual damages (min. $750) + profits resulting from the injury, punitive damages, and attorneys’ fees

ROP + First AmendmentStatutory Exceptions under Calif Law:

Use of likeness of an employee where image is incidental (not essential) = rebuttable presumption

For use in connection with news, public affairs, or sports broadcast or account, or any political campaign, consent is not required.

Not applicable against a news organization (etc) that publishes the images/likeness, unless they had knowledge that the use was unauthorized.

ROP: bottom line

Like blogging, no legal cases to date dealing with ROP in a podcast.

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

Indiv v. Personality

For an “individual” (a natural person) rights continue for 10 years after death.

For a “personality” (any individual whose “publicity” has commercial value) rights continue for 75 years after death.

trademarks

two flavorsInfringement: Likelihood of confusion standard

Dilution (“famous” marks only)Tarnishment (promoting a product that is considered offensive -- e.g., “Disneyland” for X-rated podcast)

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

when permission NOT needed

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

Comparative advertising uses also OK.

No obligation to identify every mark as a “registered” trademark.

legal implications

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

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

issue 5: Does Apple own all things “pod”?

Apple accuses “mypodder” for an mp3 player and “podcast ready” for a podcatcher infringes its TM for “iPod” for digital media players. What do you think? (http://www.podcastready.com/)

Should podcasters use the term “NETCAST” instead?

predictionsContent distribution is changing rapidly - user interaction is growing

Podcasting is one of the first technologies that businesses are implementing quickly - it’s easy.

Video podcasting will grow more rapidly than audio podcasting or blogging, but only as bandwidth opens up & remains available, and if delivered to the device we carry most (probably cell phones).

thank you.

Colette Vogele, Esq. Vogele & Associates

email: colette@vogelelaw.comskype: colettevogeletel: 415.751.5737

this presentation is licensed under a creative commons BY-NC-SA license. please attribute: “Podcasting & Law (c) 2006 Vogele & Associates”