independent contractor copyright

Last week, we wrote about legal issues for podcasters, and made the point that media companies should be making clear by contract or otherwise who owns the podcasts that their employees and independent contractors have created. This week, there was press coverage (see, for instance, the article here) about a law suit

Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast.
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Everyone who has a computer, smartphone, or other Internet-connected device has probably spent at least some time perusing photos or videos of cute pets or babies, or of the latest amazing (or sometimes amazingly stupid) things that people do. Broadcasters, in particular, with an audience to reach both through their over-the-air facilities and on their websites and mobile apps, may well want to share the content that they have found online. But, a recent spate of lawsuits filed against radio broadcasters for using photos on their websites without permission makes clear that this can lead to issues if done without permission. There have even been claims made against TV stations for taking video found online and repurposing it over-the-air or online as part of their locally-produced programming. Just because someone has posted photos or videos on a social media site does not give anyone else to take those photos and use them in other media. When an individual posts something on a social media site, what they have done is to give that site the right to use the material that they have posted in accordance with the rules of the site on which they have been posted – but the mere fact that a photo or video has been posted on one of these sites does not give others the rights to take those photos and videos and use them elsewhere.

When I make a statement like this in one of the many seminars that I have done on digital media issues, people are always quick to jump up and say – “but isn’t the Internet all about sharing?”  While in some ways it is, it really is more a medium for the dissemination of content in one way or another.  And just because a creator of content wants to share that content in one fashion does not mean that the content can be reused by others in a wholly different context.
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The use of photographs on websites continues to be an issue. According to trade press reports, lawsuits were filed against two broadcasters for the unauthorized use of photos on websites, though one suit was quickly dismissed as the named broadcaster in fact had purchased rights to the photos through Getty Images, a clearance house for the rights to use photographic images. But the filings of these lawsuits, along with other suits we wrote about here filed a little over a year ago, highlight the concerns that any company should have about the photos that are found on their websites. I highlighted these issues in my digital media presentation for broadcasters, which I wrote about here just two weeks ago.

Photos that are found on the Internet cannot just be copied and posted to your own website without getting permission from the copyright owner. Contrary to what some might think, unless necessary permissions are obtained, everything on the Internet is not free to exploit on your own site. I know of many broadcasters who have received demand letters from the owners of photographs that have been copied from some website and re-used on the broadcaster’s site without permission. Many have settled with the copyright holder to avoid the fate of these broadcasters who were recently sued – so take these demand letters seriously if you receive one.
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