Did You Hear The One About The Lawyer And The Podcast?

You don’t see this every day. A podcaster, who is also a lawyer, poised to break the law. You might be poised to do the same. And while this lawyer can’t claim he didn’t know the law, it turns out neither can you.

Sometimes It Doesn’t Pay to be a Lawyer

Writing in Radioworld* magazine, Ken Deutsch tells the story of his friend, David Milberg, an attorney, broadcast law professor, former air personality and oldies music aficionado who embarked on a quest to play music legally in his new podcast. Having been there myself, I admit to experiencing a certain guilty pleasure while following Milberg’s quixotic journey through various websites, law firms and PRO** representatives as he sought to figure out how much he had to pay to whom to license music from the 50s and 60s.

If you’ve read my previous post, or if you’ve followed the podcast music-licensing fiasco, you know it’s easier to totally debug Windows 10 than it is to untangle the legal mess surrounding podcasts and music.*** That’s what Milberg concluded, too. His plan, now, is to play 20- to 30-second snippets of oldies on his Rare & Scratchy Rock ‘n Roll podcast. According to Deutsch, Milberg’s reasoning is, “I assume the theory behind all of this [is] that these excerpts from the songs [fall] into the ‘fair use’ defense exception to applicable copyright laws.”

Disclaimer: I’m not a Lawyer—Much to My Mother’s Disappointment.

Everything I’ve researched regarding fair use ultimately comes down to these four factors:

• the purpose and character of your use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion taken;
• the effect of the use upon the potential market.

That seems to leave Milberg on some squishy ground. The clips he plays must be for the purpose of critique or education, not entertainment. And, they must not be so familiar as to damage the value of the larger work. Here’s an example from the Stanford University Libraries web page (linked to above), which by coincidence involves a 60s hit song:

So, can Milberg legally play the hooks from hit songs, the parts we Baby Boomers used to sing while cruising in our ’65 Mustangs? Only one person knows.

Here Comes the Judge

Infringement cases are settled by a trial judge who, as it turns out, is less bound by precedent than Judge Judy. Each case is considered on its merits, which is to say, on how the judge sees things on any particular day. That means what constitutes fair use is decided in hindsight. You used copyrighted material. You believed you were on firm legal ground. The judge said no. Therefore, you’re weren’t. Playing copyrighted music is not for the faint of heart.

And, in the same way you can’t be a little bit pregnant, you can’t be a little bit copyrighted, either.

As Milberg notes, using short clips doesn’t provide a safe harbor when it comes to infringement. Twenty seconds or two seconds, “But it was only a few seconds, Your Honor,” won’t protect anyone from damages. It’s a point of law Milberg finds ignored in dozens of podcasts. He’s not sure why podcasters are taking such risks, but surmises

If you’re getting away with it for now, be aware that the penalties for copyright infringement are both steep and levied on a per-occurrence basis. Every episode in which you use copyrighted music is eligible for a fine of its own.

I wish Milberg success with his podcast. But, if he’s wrong about the format he might have to rename his show. You’ll find it on iTunes under Rare, Scratchy & Very Expensive Rock ‘n Roll.