August 28, 2012

Using fairly IS fair use!

First off, episode three will be up either tomorrow or Thursday which makes me three for three in pumping out weekly episodes! To compensate for chapter two's shortness, this one will be a bit longer and hopefully answer all your questions about neandertal man, and early homo sapiens!

As I build more content in order to prepare for the inevitable iTunes submission, I'm concerned that my vision of not having one theme song, but instead playing cool, relevant and unique music based on the time period of the episode, isn't going to cut it in the court of law.

As stated on the Creative Common's Legal Guide:

Fair Use Under Copyright Law And Its Application To Podcasts.

A “fair use” is copying any protected material (texts, sounds, images, etc.) for a limited and “transformative” purpose, like criticizing, commenting, parodying, news reporting, teaching the copyrighted work. Under the US copyright laws, fair use “is not an infringement of copyright.” Judges typically consider four factors that are set forth in the Copyright Act. These factors are non-exclusive, so judges are permitted to consider other facts in addition to these. However, in the vast majority of cases, courts limit their analysis to these factors (you can read more detail about these factors at
The Brennan Center's excellent public policy report entitled “Will Fair Use Survive?: Free Expression in the Age of Copyright Control” provides a analysis of how fair use has played out in numerous scenarios over recent years:

- the purpose and character of your use (this is sometimes called the “transformative factor”);

- the nature of the copyrighted work (e.g., is the work highly creative fiction warranting broader protection, or is it highly factual warranting narrower protection?);

- the amount and substantiality of the portion taken, (as compared both to the underlying work and the work in which the copying is used); and

- the effect of the use upon the potential market (e.g., did the copyrighted work lose market share or potential market share?).

In addition, some commentators refer to a “fifth fair use factor” which hinges on good faith -- whether your conduct might be considered “morally offensive,” Judges and juries are human, and their decisions can be swayed by whether they think you are a "good or bad” actor (see

Now I have a response and an argument ready for each one of those talking points, but the fact remains that without express permission or a license, I can't play the music I want during the podcast. Bummer.

~~~ HOWEVER ~~~

That doesn't mean I can't find awesome royalty free music to play! I'm exploring different options to bring you some really neat tunes that will still hold true to the tone of the episode. And if their are any musicians out there who would like to donate their time period appropriate work to the show, well that would be great too!
Oh, and just because I can't play the music, doesn't mean I can't mention what I was going to play in the first place! Ahem. So, in case you're curious, episode three WOULD have begun with this song:

Thanks for visiting the blog and listening to the podcast! It's only going to get better and better from here!

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