Author: TALKERS

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

With the growing popularity of talk media programs utilizing segments of other shows as key elements of scrutiny and commentary in their programming (“Clip Jockey Format” as coined by Michael Harrison), it is important that media content creators be aware of the subtle and often ambiguous rules applying to the legal aspects of this practice under the heading of fair use.

This is the fourth installment of a multi-part TALKERS Legal Series on Fair Use for the Media Creator. The first installment is here. The second installment is here. The third installment is here.

The “amount and substantiality” factor in fair use focuses on how much of the copyrighted material is used and whether that portion is essential to the original work. Despite seeming obvious, this factor can be nuanced, and determining how much use is fair can be challenging because it’s not just about the quantity but also about the significance of the portion used.

Is It Difficult to Distinguish?

In many cases, it’s not always obvious what qualifies as a “small” or “insignificant” portion. Courts often consider both the quantity, and the quality of the material used:

• Quantity: This factor asks if only a small part of the work has been used. Using a shorter clip from a video or a few sentences from a book could be more justifiable as fair use. But what qualifies as “small” can vary depending on the work—10 seconds from a short film may be seen differently from 10 seconds in a longer documentary.

• Quality: Even if a creator only uses a small part of the original work, using its “heart” or most memorable part might still count as substantial. For example, a few lines from a song’s chorus, though short, could be considered significant enough to impact fair use status.

Example Cases Highlighting Amount and Substantiality

To better understand this, it’s useful to look at cases that illustrate when the amount used was deemed fair or not:

• Harper & Row v. Nation Enterprises (1985): This case involved a magazine that used a few hundred words from an unpublished memoir by President Gerald Ford. Although this was a small percentage of the memoir, the excerpt contained key insights into Ford’s decision to pardon Nixon. The court held that this use was not fair because it included the most “substantial” and critical part of the memoir, even though the total percentage of text used was minimal.

• Campbell v. Acuff-Rose Music, Inc. (1994): Here, the hip-hop group 2 Live Crew used portions of Roy Orbison’s song “Oh, Pretty Woman” to create a parody. Even though the song’s recognizable parts were used, the new work was transformative in its purpose (a parody rather than a love song). Because the group’s use was a small part relative to the song’s total content and had a new purpose, the court found it was fair use.

Many books and law school classes have been devoted to this question – so let’s focus on Application in Media and Broadcasting

In radio and broadcasting, this factor is often relevant when using clips, songs, or interview segments from other sources. Using a small clip to support commentary or criticism is more likely to be considered fair use, especially if it does not contain the “heart” of the original work:

• Commentary on a Speech: If a talk show uses a brief part of a public figure’s speech to critique it, the fair use factor may weigh in favor of the radio station if it doesn’t take the most memorable segment.

• Use of Music in Shows: Music clips used for thematic transitions or commentary must be kept brief, as lengthy or highly recognizable parts can affect fair use status. Playing just a few bars might qualify, but a chorus or instrumental hook would likely cross the line. This is less of a mine field in traditional broadcast radio as existing license agreements, such as with ASCAP or BMI, may allow for such uses anyway. However, when focusing on the internet – it’s a completely different matter as no licenses have been formally given, yet there is an incentive for the copyright holder to have their work shared. It’s not cut and dry – which is why the following takeaways should be helpful when navigating forward.

Key Takeaways for Media Creators

• Use Minimal Amounts: The less you use, the more defensible your case for fair use, especially if you avoid the most recognizable parts.

• Avoid the “Heart” of the Work: Select portions that serve your purpose without including critical or memorable parts of the original material.

• Transformative Purpose Matters: If the use adds new meaning or serves a different function (e.g., satire, critique), it’s more likely to be deemed fair, even if it includes some key elements.

Summary

Understanding how much of the work a media creator can use while staying within fair use guidelines can be tricky, as this factor requires balancing quantity and significance. Media creators should focus on minimal use that contributes meaningfully to commentary, criticism, or other transformative purposes.

Media attorney, Matthew B. Harrison is VP/associate publisher, TALKERS; Senior Partner, Harrison Media Law; and executive producer, Goodphone Communications.  He is available for private consultation and media industry contract representation. He can be reached by phone at 724-484-3529 or email at matthew@harrisonmedialaw.com

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

This is the third installment of a multi-part TALKERS Legal Series on Fair Use for the Media Creator. The first installment is here. The second installment is here.

The “Nature of the Copyrighted Work” is a key factor in fair use analysis, with courts more likely to allow the use of factual works, such as news reports, than highly creative works like music or films. The landmark case Feist Publications, Inc. v. Rural Telephone Service Co. established that mere facts, like telephone numbers, cannot be copyrighted unless presented with originality. In media, factual content like news clips may support a fair use defense, while creative works like syndicated talk shows are more protected. Broadcasters should add commentary or criticism when using factual material and be cautious when reusing creative content. Understanding this factual-creative spectrum is critical for media creators navigating copyright law.

In the context of fair use, courts are more likely to allow the use of factual works, such as news reports, historical accounts, or other informational content, than highly creative works like songs, movies, or artwork. The theory behind this is that factual works generally serve a public interest – society benefits from the free exchange of information and ideas, and we want “the system” to encourage this. On the other hand, creative works involve more personal expression, and copyright law is designed to protect that artistic effort (and allow for monetization thereof.)  This distinction plays a crucial role in determining fair use, as courts are more protective of creative works because they represent a higher degree of originality and personal investment.

Classic Case: Feist Publications, Inc. v. Rural Telephone Service Co. (1991)

A landmark case that helps illustrate this factor is Feist Publications, Inc. v. Rural Telephone Service Co., which asked whether copyright protection could be applied to a seemingly factual work: a telephone directory. In this case, Rural Telephone Service Co., a public utility, created a telephone directory of its customers’ names, addresses, and phone numbers. Feist Publications, a company that produced a larger, regional telephone directory, copied some of these listings and was sued by Rural for copyright infringement.

Rural argued that its directory was protected by copyright, but Feist countered that the information in the directory (names, addresses, and phone numbers) was purely factual and, therefore, not eligible for copyright protection.

The Supreme Court ruled in favor of Feist, stating that facts are not protected by copyright because they are not original to the author. The Court held that Rural’s directory did not qualify for copyright protection because it lacked creativity and originality – it was simply a compilation of facts (names and numbers). The case established the principle that mere facts are ineligible for copyright protection, even if they are compiled in an organized way.

This case is significant because it underscores that factual information, like a telephone directory, cannot be copyrighted unless there is a creative element involved in its presentation, such as an original selection or arrangement of the facts.

Application to Radio and Media:

When it comes to radio, news, or media content, the nature of the copyrighted work often comes into play, especially in cases where factual content (such as news clips or interviews) is being reused. Courts may treat factual works more leniently in fair use cases, allowing them to be repurposed for commentary, criticism, or reporting, as they serve a public interest. However, creative works, like talk shows, are given more protection because they represent original artistic expression. The more creative the work, the less likely its unauthorized use will be considered fair use.

An Example – Associated Press v. Meltwater U.S. Holdings (2013)

While not specific to radio, this case highlights the issue of using factual content in media. Associated Press (AP) sued Meltwater, a news aggregation service, for copying parts of AP’s news articles and distributing them without permission.

The court found in favor of the Associated Press, stating that even though AP’s articles contained factual information, they were written with creativity and journalistic skill – thus, they were still copyrightable. The nature of the work was not purely factual, as it involved a degree of originality in the writing and presentation.  This case illustrates that while factual works may be more likely to fall under fair use, their specific presentation or creative treatment can still be protected.

Radio Case Example: Syndicated Content and Commentary

A case that touches on the nature of copyrighted works in radio can be seen in disputes over syndicated talk shows or political commentary. Stations that rebroadcast these shows without proper licensing agreements may argue fair use, but their success often depends on whether the work being used is factual or creative. For example, if a station replays a news clip or political speech, the fact that the content is factual might support a fair use defense. However, if they replay a syndicated talk show where a host offers personal opinions or creative commentary, it would be considered a more creative work, requiring higher protection. In some cases, radio stations have argued that the rebroadcasting of certain content (like portions of interviews or speeches) qualifies as fair use because it’s factual and in the public interest. Still, if the content also involves a unique editorial style or commentary, the courts may treat it as more creative and therefore not subject to fair use.

Practical takeaways for media creators:

• Factual vs. creative: When considering whether fair use applies, broadcasters should analyze whether the content they’re using is more factual or creative. Factual works (such as news reports) are more likely to be protected by fair use, while creative works (like music or dramas) are less likely.

• Add commentary or criticism: Even when using factual content, it’s crucial to add commentary, analysis, or criticism to support a fair use defense. Simply republishing factual material without transformation can still lead to copyright infringement.

• Be mindful of syndicated content: Syndicated content, such as talk shows, often involves a mix of factual information and creative opinion. Replaying such content without proper licensing can lead to legal challenges, as courts may view this as a use of creative work.

The nature of the copyrighted work plays a crucial role in fair use analysis. While factual works are more likely to be used under fair use, creative works enjoy stronger protection. Media creators, including broadcasters and radio stations, need to be aware of this distinction and ensure that their use of copyrighted material is both transformative and legally defensible. By understanding the factual-creative spectrum, media creators can better navigate the complexities of copyright law.

Media attorney, Matthew B. Harrison is VP/associate publisher, TALKERS; Senior Partner, Harrison Media Law; and executive producer, Goodphone Communications.  He is available for private consultation and media industry contract representation. He can be reached by phone at 724-484-3529 or email at matthew@harrisonmedialaw.com

By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer

As a media creator, incorporating copyrighted material, such as video clips or actualities, into your content can enhance your message. But when using someone else’s work, you need to consider fair use, a legal principle that permits limited use of copyrighted material under certain conditions – without needing permission from the copyright holder. Understanding when and how you can safely use this material is critical to avoiding costly liability – whether it’s a copyright strike or complicated copyright litigation.

What is fair use? Fair use is the legal principle that allows copyrighted material to be used without permission for purposes above and beyond the original version – like criticism, commentary, news reporting, education, or parody. It’s not an absolute right but rather a defense you can claim if challenged. Courts assess fair use based on four key factors, all which creators should carefully consider.

Purpose and character of the use.  Is the use of the material transformative? This means that you’re adding something new or giving it a different purpose than the original, rather than just copying it. This is more likely to be allowable. On the other hand, simply reposting someone else’s video with little change is not transformative and could be seen as infringement.

Nature of the copyrighted work.  Not all content is treated equally under fair use. Factual works (such as news reports) are more likely to be subject to fair use than creative works (like movies or music videos). Why? Courts recognize that creative works often involve a higher level of personal expression, so they deserve more protection. Plus, society has an interest in being able to quickly disseminate news and other important information – therefore, facts generally have little to no protection themselves.

Amount and substantiality. The more of the original work you use, the less likely it is to qualify as fair use. Using a brief clip or excerpt is more defensible than using an entire segment or the “heart” of a work, which is often the most memorable or critical part. This becomes less of an issue when using factual material, though immediately can get complicated if the material being used is someone elses opinion and commentary. This is where taking less is going to be more – in terms of preventing potential liability.

Effect on the market. If your use of the copyrighted material could replace the need for the original courts are more likely to see it as infringement. In other words – is your use of the material taking money out of the pockets of the original creator? This isn’t a moral judgement but purely an objective analysis. If your use does not impact the market for the original work, such as in a news or educational context, it’s more likely to fall under fair use.

Practical Takeaways for Media Creators

Use brief excerpts, not whole segments. The less you use, the more likely it’s fair use.

Make sure your use is transformative. Add commentary, criticism, or parody to distinguish your work from the original.

Be mindful of market impact. Avoid using copyrighted material in a way that competes with the original.

Credit is not enough. Even if you give attribution, it doesn’t exempt you from potential liability. Fair use depends on how you use the material, not just on crediting the original creator.

While fair use provides flexibility, it’s crucial to apply it carefully. When in doubt, consult with legal counsel to ensure your content remains within legal bounds.