Podcasters are often faced with the challenge of determining whether or not they can incorporate a piece of media into their productions. Most often, this comes with music. But it can extend to things like movie/TV clips or other soundbites. The best rule of thumb is, if you don’t have explicit permission to use a piece of media in your podcast, DON’T. But thanks to the complex nature of copyright law and its Fair Use provisions, many creators believe there are loopholes they can exploit to use the media clips they want without repercussion. The Fair Use App, a service provided by the New Media Rights organization can offer some guidance to creators who are unsure if they’re operating under Fair Use or not.
Before I go any further, I must stress that The Fair Use App is useful. But it can’t give you a 100% bulletproof answer as to whether or not your creative intent can be claimed under Fair Use. The app starts off by doing some simple troubleshooting like asking if the media you intend to use is in the Public Domain or if it’s covered under a Creative Commons license. If you answer no to these questions, the app will ask a series of followup questions in an attempt to advise you what is, and what is not, considered Fair Use. In the end, it’ll be up to you to decide whether or not to proceed with your work and in turn, potentially suffer any legal consequences.
The Fair Use App is geared in its terminology towards filmmakers but most of its test questions can be easily applied to podcasters. So, if you’re feeling compelled (as I have!) to do an in-depth breakdown of the latest Star Wars movie trailer on your podcast, check The Fair Use App first and see what it says about using media clips from the trailer. If Disney/Lucasfilm sends you a cease-and-decist order, relying on The Force alone may not be enough to save you.