PODCASTING TRAIN WRECKS Colette Vogele Vogele & Associates Stanford Center for Internet & Society Prepared for Podcast Academy # 6 September 27, 2007 Vogele

PODCASTING TRAIN WRECKS

Colette VogeleVogele & Associates

Stanford Center for Internet & Society

Prepared for Podcast Academy # 6September 27, 2007September 27, 2007

Vogele & Associates Podcast Academy #6

I will conduct your journey so that you

have fewer (and may be even no) wrecks,

but please kindly remember...


© proudmurphy, CC BY-ND (flickr.com)

this is not legal advice.


Things I hope to cover... (time

permitting)Trademarks vs. Domain Names

Copyrights - ownership, fair use, licensing

Clearing publicity rights

How to read the agreement that Big Network gives you


Can’t cover today:

Defamation laws & CDA section 230 (see EFF’s blogger’s guide & R4R episodes 9 & 10)

Digital Millennium Copyright Act (see R4R episodes 4 & 5)

Insurance (see R4R episode 19)

Network Neutrality (see R4R episode 20)


Wreck #1

I’m naming my podcast “AmtrakAwesomness”. It’s about train trips in the U.S. I’m sure this is fine because I was able to register the domain name (amtrakawesomness.com) and I “googled” around and didn’t find anything about “Amtrak Awesomness” out there either. And Amtrak will love it too, since I’ll be promoting train travel.


Trademarks

Purpose: source identifier, avoiding consumer confusion

not always same as corp. name

words, imges/logos, even sounds

Domain names: an address where your website/content is located


Picking a Trademark

Step One: is it inherently registrable?


the TM continuum

principal supplemental cannotregister register register

arbitrary suggestive descriptive generic


(inherently registrable)

Picking a Trademark

Step One: is it inherently registrable √

Step Two: is it available?

requires searching - looking for things that are “likely to cause confusion” (“energy” vs “n-r-g”)


Picking a Trademark

Step One: is it inherently registrable √

Step Two: is it available √

Why register?

not required - claim some rights immediately by using the (™) symbol

many statutory/legal benefits

creates evidence of your rights, esp. if you want to later sell/license them.


Picking A Domain Name

Step One: are the characters I’ve selected available in the order I’ve identified?

Step Two: do I have $9.99 to pay for the registration?

These are a dramatically different issues from selecting a trademark.


Bottom Line

The availability of the domain name, has little to do with whether you can use the term for your brand name.

Avoid using someone else’s trademark as the title of your podcast series, or as your domain name, if it will likely cause confusion. (And be careful of things that sound similar or would cause confusion.)

Consider registering your trademark.


Wreck #2

Andrea created the theme music for my train-related podcast. I just learned that Sam’s podcast also uses this music. Can I stop Sam from using it? Can I stop Andrea from giving it to others?


Issues...

copyright & ownership

works for hire

registration basics


Copyright & Ownership

what is covered: copyright applies to many kinds of creative expression

who owns it: in most instances, the copyright is initially held by the author of the work

it can be transferred through a license (which must be in writing, if exclusive)


Works* For Hireif the work is made by an employee of a company within the scope of the employment

company is legal “author”

if the work is specially commissioned and subject to a written agreement that says the work is a “work for hire”

party who commissioned the work is “author”

otherwise, the work is owned by the initial author or joint authors)

*the work for hire rule only applies to 9 types of work specified in 17 USC §101, which includes audiovisual works.Vogele & Associates Podcast Academy #6

Bottom Line

If you engage someone to create something for your podcast, and if they are not an employee, you must have a written agreement specifying that the work is for hire to claim ownership.

If you don’t, the author can do what s/he pleases with it, include registering it and licensing others to use it.


Copyright Registration

optional - handled by the Library of Congress/US Copyright Office

unlike most pieces to the legal puzzle, it’s cheap and easy!

depending on your business goals, it’s important


Why register

creates a record at the Copyright Office

many statutory benefits, including enforcement rights and damages

creates an asset (a piece of paper) if you sell/license your podcast


Copyright Registration

Steps to Register ©Go to copyright.gov

Select correct form & fill it out

Include a $45 check & a copy

Snail mail it to Copyright Office

Receive registration certificate


When to register?

Best: within 90 days of publication

Better: if you decide to engage in heavy licensing or enforcement

At least: before suing someone

© Brett L., CC BY-SA (flickr.com)


Wreck #3

I’m using a song I ripped from my CD collection for my intros/outros. This is fine because I’m attributing the artist and I’m also keeping it under 30 seconds, so it’s a fair use.


Copyright

copyright in music

complicated... please come to tomorrow’s session at 11:45 a.m.

fair use


Music Copyrights

2 copyrighted works in music:

sound recording

the musical composition (melody/lyrics)

You need a license for both copyrighted works in order to use the music in your podcast. Often, this requires going to more than one source.


Sound RecordingOwnership:

artist first --> but usually transferred to record company (for non-indie artists)

Where to find rights info:

soundexchange.com

allmusic.com

CD


Music/LyricsOwnership:

the writer of the song --> but usually transferred to publisher

Where to find rights info:

ascap.com/bmi.com/sesac.com (most professional song writers affiliate with one of these organizations)


Clearing Rights

(DRM-free!)


PodSafe Music Options

http://ccmixter.org/media/people/Mixro


http://ccmixter.org/media/people/Mixro

Fair Use

“the fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an infringement of copyright” (17 U.S.C. § 107)


Fair Use - detailsthere’s no “bright line” rule

focus on whether the use is transformative

very fact intensive:

Pretty Woman case (S. Ct.) = FAIR USE

6-second sample case = INFRINGEMENT


4+ Factor Test

purpose and character of the use (e.g., whether the use is “transformative”);

nature of the copyrighted work;

amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

effect of the use upon the potential market for or value of the copyrighted work


Fair Use: Example


© 8 Bit Brownies, Inc., All Rights Reserved.

Fair Use Resources

Rules for the Revolution - episodes 8 & 11

http://centerforsocialmedia.org/fairuse

http://cyberlaw.stanford.edu/taxonomy/term/374

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

http://www.eff.org


http://centerforsocialmedia.org/fairuse

http://cyberlaw.stanford.edu/taxonomy/term/374

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

http://www.eff.org/

Fair Use Lessons

very fact specific

“right to hire a lawyer”

balance your risk tolerance

if you’re not sure, check the many on-line resources, and seek advice.


Wreck #4

My guests are people I know and trust. I don’t need to bother with getting a release signed for their appearance on my program.


Right of Publicity

sometimes called “personality rights”

closely related to privacy law

a matter of state law (so can vary from state to state)


Basic definition...

allows an individual to control how her voice, image, or likeness is used for commercial purposes


Calif. ExampleBy statute (Cal. Civ. Code § 3344) & applies to dead “personalities” too (§3344.1)

3 elements: (1) knowingly used a individual’s name, voice, signature, photograph, or likeness in the podcast; (2) did so for purposes of advertising or selling, or soliciting, the podcast (or any other products or services); and (3) did so without the individual’s consent.


Exceptions1st Amendment: News reporting, use of public figures (e.g., politicians) is permitted, so long as this is done in a truthful way and does not imply a false endorsement of the podcaster or the podcast

California exception: “in connection with any news, public affairs, or sports broadcast or accounts, or any political campaign”

California has special rule with employees...


What’s the risk?

In California: If the plaintiff proves her case, she is entitled to payment of damages of at least $750, plus profits from the unauthorized use, and her attorney’s fees and costs.


How this plays out...

You start the train podcast “small” - it’s just a hobby. Friend #1 makes regular appearances. It’s all nice and friendly.

You do all the stuff that Greg, Chris, Tim, Paul, and others tell you here today.

You have listeners, traction, etc. Great!


How this plays out...Amtrak is interested & you sell the series Amtrak. In the sale, you warrant the IP/rights and you agree to indemnify.

Amtrak matches advertising to the podcast, including a massive national advertising campaign with still images from the podcast.

You have a falling out with Friend #1. Friend sues Amtrak. You have to indemnify.


Wreck #5

Big Network is knocking. They want me to sign this agreement. I can’t negotiate with them, so I should just sign it. Besides, I need the money and they won’t change anything in it anyway.


Handling the ownership of your own

content

you want to be the driver’s seat.

what’s your plan for distribution? do you want to be a licensor? do you want to produce for others?


Contracts - read them

you must read the agreement (or have your agent or lawyer read it for you).

ordinary agreements have a LOT of fine print -- and somewhere buried within the agreement, the network may want to own your content (this sometimes makes sense), and have broad rights to your personality


Key terms in a license for content

exclusive vs. non-exclusive

duration of the rights transferred

warranted vs. unwarranted (also indemnification)

sub-license rights


Other contract terms

delivery of episodes - frequency, duration, format

how & when will you be paid

advertising - rights of publicity

indemnification

how to terminate the agreement

what rights survive the agreement - is there a sunset?


Lessons


Think about these questions early, and take advantage of the free resources available for content producers.

Lessons: TMs

Don’t assume you’re ability to get a domain name means you can use the term as a trademark.

Use a unique term to brand/identify your podcast.

Consider registering your trademark.


Lessons: Copyright

If you hire people (paid or unpaid) to prepare any content, have them sign a work for hire agreement

Clear copyrights -- or use “podsafe” content correctly (attribution, etc.)

Learn about Fair Use

Consider registering your copyright


Lessons: BusinessDon’t rely on “friendships” for publicity rights permissions or for other biz agreements - Contracts should be signed and saved.

If Big Network comes knocking, consider all your options and read the fine print.

Engage your advisors (agents, lawyers) when you are unsure, and do so as early as possible.


Thank you...


Colette Vogele, Esq. Vogele & Associates

email: [email protected]: colettevogele

tel: 415.751.5737web: www.vogelelaw.com

podcast: RulesForTheRevolution.comblog: Cyberlaw.Stanford.edu/blog/colette-vogele

The original content of this presentation is licensed under a Creative Commons BY-NC-SA 3.0 license. Please attribute: “Podcasting Train Wrecks (c) 2006 Vogele & Associates”

(The train wreck background image is “Train wreck at Mont Parnasse” and is Public Domain.)

mailto:[email protected]

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PODCASTING TRAIN WRECKS Colette Vogele Vogele & Associates Stanford Center for Internet & Society Prepared for Podcast Academy # 6 September 27, 2007 Vogele