But as it turns out, all the lawyers I spoke with said playing someone else's music would violate copyright law and open me up to lawsuits. At this point I quoted fair use. See I wasn't charging anyone to listen to the show. I wasn't even going to have sponsors. Hell, there wasn't even going to be ads on the website. I was going to talk about the music, about vinyl medium, about the bands I played, share their stories, share my stories about the music; when it came into my life, what was happening in the world when it came out, what it meant to me, to us.
One lawyer put it to me this way; Fair Use is an argument that you make after a lawsuit is filed. You have to go to court and prove your use of copyrighted materials falls under fair use. So I would have to argue that I was educating people about the value of vinyl records, about bands and their music, etc. I would have to prove that I wasn't making money doing this.
Then and only then would a court make a decision, and it's no guarantee they would side me on the fair use argument. As a matter of fact, it is likely they wouldn't. Case in part.
The Copyright Act allows for copyright works to be used, and for such use not to be considered infringement, for purposes such as criticism, comment, news reporting, teaching, scholarship, and/or research, so long as the work is “fairly used.”
So what does that mean? If I want to criticize a work, I can use it? Or report it as news? Or teach on the subject? Or as research? And what does it mean when it it closes the statement with "So long as the work is "fairly used"" What is "fairly used". See that phrase is never clearly defined in the law.
But a court has to look at four factors in fair use claims, and these four exclusively from what I can tell.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (As a special note, non-profit means 503c filed non-profit, not simply stating you have generated no revenue)
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
But even if you can prove that you comply with one or more these vaguely outlined factors (You are a 503c non-profit, the nature of the work was educational, or a critique, and the amount copied was minimal and the potential market value was not impacted) it doesn't mean that a judge will agree with you. See you have to go to court and have the court decide on the vaguely described and non-quantifiable measures are within guidelines. This is basically a part of the law that says, to find out for sure of you are breaking the law, you must break the law and let the court decide. This is the equivalence to no speed limit signs being posted on a country road and you get pulled over and cited for driving 55 mph being told that the speed limit in that stretch of road is 35 mph.
And that trip to court costs money. And everyone is painfully aware of how sue happy the RIAA is.
So what about licensing the music. Well there is a well know podcaster who pays $200 year to to play a 15 second intro on his show. That is 15 seconds of one song 52 times a year. That equates to two and a half cents a second. Now this guy had to go through months of licencing negotiations to get this contract agreed upon. Now imagine if I played one hour's worth of music for each episode I did for each month. 43,000 seconds of music each year. My bill would be over $1000... but they won't do that for an unknown like me... see they have contracts for "radio station" types of podcasts and the license is based on "streaming hours", or how many hours was the song played and by how many listeners.
These costs are based on highly complicated calculations. So basically, based on one licensing service, I would have to pay upwards to $2000 + .10 per user that downloaded the episode. Again, that's based on a schedule of twelve episodes a year and an hour each episode. Now as anyone knows, I've be known to do episodes on other podcasts that are in excess of two hours.
Now add to the fact that a band like Boston might be represented by one licensing agency, say BMI, while another artist, like Carol King might be represented by SESAC. So now I have to go through multiple licensing agencies, and there are three licensing agencies in all that represent the majority of professional musicians in the world. And each agency requires a monthly report of downloads and streams of each episode as well as the songs played on each episode along with your payment each month/quarter. This can become quite cumbersome and the podcast could be three hours of recording/editing each month followed by 60 hours of paperwork.
Too much.
I tried to do something fun, something educational, something creative, something that wasn't money motivated and as it turns out, when it comes to music, nothing is allowed to be free. It's a sad world we live in when it is ruled by an ill-defined and litigious system where our justice system is used for bullying as a tool by huge corporations with bottomless pockets.
So now onto the next project.
