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Jeffrey P. Hermes is a partner in the Boston office of Brown Rudnick Berlack Israels LLP. He specializes in First Amendment defamation law, representing a number of different media outlets in both traditional and electronic formats. He represents media defendants who become involved in defamation suits and also has extensive experience defending reporters who are under subpoena and are being forced to disclose confidential sources. In the second part, Digital Media Net's Charlie White talked with Hermes about using music in podcasts.
DMN: Do you think podcasters should be overly concerned with music and with using music that doesn't belong to them? Is that commonly prosecuted and found out? What would you tell them to look out for when it comes to using music?
Hermes: Well, there is certainly recently been a lot of activity about cracking down on infringement of copyrights for music. Certainly, the RIAA has been very active in terms of prosecuting and filing civil actions against people who, say, BitTorrent music files, or otherwise use filesharing services. If your podcast becomes prominent, you're likely to draw the attention of anybody who has a copyright in any music you happen to be using. There are sources for Podsafe music out there. I'm sure that's a term you've heard before.
DMN: Yes, in fact I'm a member of the Podsafe Podshow Music Network with our podcast.
Hermes: There you go. So becoming informed of sources of safe material, material which is available under a Creative Commons license, it's a wise step to take. There's a doctrine which gets kicked around quite a bit which is called the doctrine of Fair Use. I'm sure you've heard of it. It's widely talked about and rarely understood.
DMN: Help us to understand it.
Hermes: Sure. Whether or not material can be used under the doctrine of fair use and avoid a copyright problem is based on a number of factors, no one of which is determinative, so it's a balancing test. The factors include things like purpose and character of your use.
A second factor is the nature of the copyrighted work, is it highly creative versus factual? Is it a song versus a page out of the phone book? Third, the amount of the portion taken. It is relevant if you take a smaller portion. But it's not determinative. You can't say, "Well, if I only use 10 seconds of the music, I'm safe." It depends on the overall character of the use.
And then the last one, which is possibly the most important, is the effect of the use of the material on the potential market for that material. It's going to be important whether or not your use of copyrighted material in any way interferes with the author's, the composer's ability to market or promote his work. So if you're using somebody else's copyrighted material in such a way that potential buyers of that material can say, "Well, I can just get it from this person's podcast. I can simply rip it from the MP3 of the podcast," then you're much more likely to be found to be outside of the boundaries of Fair Use. One thing which is important which people sometimes get confused about: using material for nonprofit purpose does not immunize you.
DMN: You have to have some kind of contract with the copyright holders in order to do that, similar to the one that public television has. A blanket license.
Hermes: Exactly. That's right. There are sources for blanket licenses out there. There are agencies which manage contracts for music licenses. If you are interested in using traditional copyrighted music, there are ways to do it. You'll need to pay for it.
DMN: You can contact the holders of the copyright and ask for permission.
Hermes: That's right. I believe the agency is called the Harry Fox Agency that manages a lot of these copyrights. So there is a central place you can go for a lot of the music you might be interested in using.
Coming up in part 3: Jeff Hermes talks about laws that are a bit quirky, and affect podcasters differently than they would anyone else.
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