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The Law and Radio Producers

A Q&A with Spencer Weisbroth and Jon Beaupre

This is the archive of the Speaker Series discussion which took place during the week of February 14, 2000. The invited guest speakers were Spencer Weisbroth, attorney and Jon Beaupre, producer and teacher. Spencer and Jon answered questions about the law as it affects radio producers.

This week's Speaker Series discussion will feature broadcaster and teacher Jon Beaupre and attorney Spencer Weisbroth leading a discussion about how the law affects independent radio producers and radio freelancers. I'd like to welcome Jon and Spencer to the Speaker Series - thanks for being with us! I know Jon that you have a busy week in NY this week and I especially appreciate your participation given that. I look forward to a stimulating discussion on a topic that mystifies many of us. I for one spend most of my time flying in the dark in certain legal areas and so I hope to get some of the mysteries cleared up.

Here is Jon's initial statement for those who like to get a jump on the discussion over the weekend. The actual Q&A won't start till Monday.

Contact Robin White by emailing: robin at radiocollege.org

- Saturday, February 12, 2000 at 12:01:31 (PST)

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Legal Issues and Radio

In the course of producing an investigative documentary, two of your interview subjects discuss the current state governor. One of the subjects, a well known industrialist, calls the governor " a no-good son-of-a-bitch, a cheapskate, without an intelligent bone in his body, he's a lazy opportunistic self-centered slob..." Harsh words, and there is no doubt about his opinions of the governor. The other interview subject is an eighth grade teacher who remembered the governor as a student. She says the governor "...was only a fair student..." and she claimed "...he cheated on his eighth grade geography final..."

These are only a couple of the endless legal issues that face radio broadcasters every day. On one hand, most producers and station managers would rather avoid legal hassles of any kind. This often leads to bland, safe, story telling.

However, if you know the limits and the principles behind laws, statutes and regulations that govern broadcasters, you will be more willing to take reasonable risks, and ultimately, produce more challenging, more adventurous programming.

It is our hope over the course of the next week to get into the nitty gritty of a number of legal and regulatory areas, to discuss them with vigor, and to express opinions that may not always be popular. The goal is not to resolve or even to preach (with one notable exception!), but rather to spark a spirited debate on the nature of our rights under the first amendment, and the entire body of regulation governing broadcasting. The one area in which we may indulge in a bit of preaching will be in the area of defending the first amendment. It is our collective opinion that the first amendment has to be defended on a daily basis. There are many governmental agencies, not to mention powerful figures in commerce who would like to slowly but surely erode our rights to express our opinions. It is up to every producer to know and defend those rights in every production.

We may not get to all the items on the short list of topics that follows, but they are all a part of this discussion. Also, in any of the discussions that we initiate, if you are inspired to take off in some related area, go for it!

Intellectual Property, Fair Use, Copyright, Trademark.
Freedom of Information Act and it's exemptions
Libel: what constitutes libel, what are it's limits, and how does it apply to public vs. private figures.
Privacy, Invasion of Privacy, and Rights of Publicity; sureptitious recording; one-party states, two-party states.
Confidentiality: when, why and how to extend confidentiality, and how courts may react to claims of confidentiality.
Trespass: where and when may I record. Hint: getting a release is not always enough!
Court Rooms: cameras and microphones at jury trials

This discussion will have two moderators/hosts, one who is an attorney who handles media and broadcasting legal issues, and the other who comes primarily from broadcasting, with an interest in defending the first amendment.

As a starting point, in the scenario noted above, let's pick up the discussion here: after your piece airs, the governor decides to sue you and the two subjects for libel, the form of defamation that covers broadcast. Who is likely to win? What are the limits of personal opinion and free speech? How far can a person go to express their ideas on the air? Let's hear what you think. What is your opinion, and what would you do?

Moderators

Jon Beaupre is a free lance radio writer/producer/reporter who's work has been heard on NPR, BBC/The World, Pacifica Network News, The California Report, Latino USA and a wide range of syndicated programs in the US and abroad. He is a voice and performance coach and a part time member of the faculty of the Communications Studies Department of California State University at Los Angeles, where he teaches courses in Broadcasting Rules and Regulations, as well as other media related courses.

Spencer Weisbroth is an attorney well versed in public broadcasting, independent production, and related issues. His law practice focuses on the arts, entertainment, and media, representing and advising a variety of individuals, organizations, businesses, and arts and media developers regarding legal issues, contracts, intellectual property, ancillary and derivative works, business and financial planning, fund-raising and marketing practices. Previously, he was an attorney in CPB's Business Affairs Office. His national radio credits include Associate Producer: "Blacklisted" (Tony Kahn Productions), and Legal Affairs: "Beyond Affliction" (Straight Ahead Pictures, Inc. with Jay Allison, co-producer.)

Jon Beaupre and Spencer Weisbroth

- Saturday, February 12, 2000 at 12:03:26 (PST)

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I hope the commentators in their discussion will (where relevant) take up both on-air liability and new media instances of liability for the same imagined or real examples. That is, in helping us better understand the use of the Digital Millennium Copyright Act.

Thank you,
Brooke Anthony
Contract Coordinator
Public Radio International

Brooke Anthony

- Monday, February 14, 2000 at 07:52:58 (PST)

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Nick Van der Puy here from northern Wisconsin,

I report for WXPR, WOJB, National Native News, and the Great Lakes Radio Consortium.

The story about the governor leading to a defamation action against me. I believe for the governor to recover it would take proving that I intentionally repeated an untruth with a desire to malign.

But I think there's also a greater standard of proof required about public figures versus private figures. If I'd published these same statements about a private citizen, knowing that they were false, it would be more likely for me to lose than what I said about the governor.

In short, there are more protections for speech about public figures. The purpose to allow more vigorous political discussion.

I don't think the governor would recover against me for defamation.

But needless to say if I was sued by the governor for anything it would tie up my small station and probably chill any future reporting.

Please comment and improve my knowledge.

Nick Van der Puy

- Monday, February 14, 2000 at 09:55:13 (PST)

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Welcome. I am glad to see that a couple of people have logged on.

Brooke: I anticipate that online issues will be a big part of our discussions here. What is fascinating and risky about the internet is that because it is such a new medium of communication, and one that quickly evolves, as opposed to "the law" (both case law and statutes) which moves slowly, there will continually be issues which the law has not dealt with.

I hope to give you a better understanding of the Digital Millenium Copyright Act, though I frankly doubt my ability to add any clarity to what one legal commentator described as a "shamelessly complex" piece of legislation.

Nick: I agree with you. I don't think the gov would recover agains you. For one thing, we don't know if those statements are the truth or not. I am not an expert in journalistic ethics, but I would assume that if the point of the story is to assert the truth of the statements that a good reporter would seek some confirmation before airing the story. A more interesting and complex issue is raised if the point of your report is not the truth of the statements, but that industrialist or teacher said them.

I am aware of the reality that the legal cost of defending against a law suit is potentially enormous. However, knowing your rights and responsibilities in the first place will certainly help avoid them, and will ensure that you win should you be sued. It is (and this is my personal opinion) that a news organization has a responsiblity to take risks, especially in reporting about politics and politicians, and if it has its story straight would not be chilled by the threat of a law suit.

Spencer

- Monday, February 14, 2000 at 12:02:23 (PST)

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I suspect I'm oversimplifying, by wouldn't the case turn on whether or not the reporter (or even the interviewees), as Nick said, acted "intentionally" and with "with a desire to malign"?

Contact Phil Easley by emailing: easleypm at jmu.edu

- Monday, February 14, 2000 at 12:16:53 (PST) ------------------------------------------------------------------------

Phil: The legal definition of libel is any published communication that falsely harm a person's reputation. In the case of the teacher, who stated that the gov "was only a fair student..." and "...he cheated on his eighth grade geography final..." the case would first turn on the truth of the statement. The truth is always a defense.

To prove libel, a plaintiff must prove 4 things: Publication, Identification, Harm, and Fault. What I think you and Nick are referring to is the "actual malice" standard established in NY Times v. Sullivan, which raised the bar for public figures to winning a libel suit. Actual malice is a legal term that requires the plaintiff who is a "public figure" (another legal term) to also prove that the statement -- even if false -- was published by people who either knew it was false or who were reckless in verifying the accuracy. The scenerio above leaves out a lot of pertinent facts, but assuming the industrialists statements are proven false, then you are right, the case would turn on whether they were printed (or aired) with actual malice or reckless disregard for the truth.

There is another defense, however, which may protect the publisher/journalist, and that is the "opinion" defense. Generally speaking, statements of opinion (as opposed to statements of fact) are protected. This is a complex -- not to say somehwat metaphysical -- area, but it seems to me that the industrialists statments are matters of opinion, and as such are protected.

Spencer

- Monday, February 14, 2000 at 13:42:34 (PST)

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Spencer

- Monday, February 14, 2000 at 13:43:06 (PST)

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Van der Puy here,

Let's enlarge this question about defamation to include more private parties. How'bout a few years back when Opray Winfrey commented on her show about eating meat. A cattle business group sued her. What was the outcome and what does it teach us?

Nick Van der Puy

- Monday, February 14, 2000 at 16:03:40 (PST)

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rebecca rumsey here-

(The cowboys lost. But I can't believe the Pizza guys can't say they have the "best," ingredients when while other adverstisers make up both people and quotes!)

"There is another defense, however, which may protect the publisher/journalist, and that is the "opinion" defense. Generally speaking, statements of opinion (as opposed to statements of fact) are protected."

Spencer: is opinion protected just in regards ot a public figure or to private citzens as well? For example, in the case of a "memoir" type piece, a writer's opinion, or memory of an event or person may be different than that of a subject (who may not be a public figure).

Also, another subject: is there an exact legal definition of "work-for-hire" ? thanks!

Contact Rebecca Rumsey by emailing: rumseyr at spot.colorado.edu

- Monday, February 14, 2000 at 17:02:11 (PST)

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Housekeeping business... Sometimes the computer at LMI is a bit slow to pick up the updates to this messageboard. As long as you hit the "submit" button at the end of the box below, your message will eventually appear - no need to worry too much if it doesn't show up immediately.

If you do worry about it, after you have hit submit, use the back button to go back and copy and paste your carefully composed message from the box below into your word processing software and save it there to repaste, should you need to later.

Contact Robin White by emailing: robin at radiocollege.org

- Monday, February 14, 2000 at 17:49:05 (PST)

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What do you think of libel insurance? (I think NWU's enrollment is open till March 15. I wish AIR had it so people wouldn't have to pay two sets of dues.) Since I have made zip so far it seems ludicrous. But I want to interview someone who had to second mortgage his home after being accused of child molestation, and his situation leads me to imagine all kinds of terrible scenarios.

Just defending yourself can be financially ruinous, even if you win a case, right?

Contact Nannette Drake Oldenbourg by emailing: Nannette at cape.com

- Tuesday, February 15, 2000 at 03:52:52 (PST)

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Becky: A "work made for hire" is defined in 17 USC Sec. 101. It is: "(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

It is important to recognize and understand that unless you are someone's employee, that for a work to be considered a "work made for hire" the parties must expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, which is why this language appears in written contracts between independent producers and acquirers.

Spencer

- Tuesday, February 15, 2000 at 07:41:33 (PST)

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Van der Puy here,

Phone interviews. Do we need to ask and get permission for taping each time, even with people we've received permission from in the past?

What do I do with a tight lipped county board guy who doesn't want to talk to me? If I sneak up on him in person or on the phone and run the tape just to record him blowing me off (obviously without his permission) am I breaking the law?

Nick Van der Puy

- Tuesday, February 15, 2000 at 08:06:16 (PST)

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rumsey here:

Thanks Spencer. But what about rights and "work-for-hire" ? In a recent freelance "job" posting, an acquirer used the phrase

"work-for-hire." I thought that meant the acquirer retains all rights to the material and the work. Yet later the acquirer clarified that they only wanted to purchase certain rights (first broadcast, tape and transcript sales). So, technically then, that would NOT be work-for-hire, right?

Also, is it true that unless otherwise stated in writing the interviewer owns copyright to (raw) recorded interviews for any and all uses? What if an interviewee has not stated that on tape or in writing, as in a release form? For example, if a person participated willingly in a 1988 interview for public radio, but wanted to prevent the use of that interview, on a website or in a book ten years later...

Contact Rebecca Rumsey by emailing: rumseyr at spot.colorado.edu

- Tuesday, February 15, 2000 at 08:49:09 (PST)

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Similar question to Nick's. I don't typically get releases from the people I interview. I was told a long time ago when I was training that if you state clearly what you are doing (i.e. interviewing for radio) that people must assume that you are going to use some of the recording and that if they allow themselves to be recorded then they are agreeing to that use. I don't want to start getting releases because it just creates a different atmosphere with a subject - they might be more guarded if they have to sign something first. However, it occurs to me that I could begin each interview - on tape - with a low key statement announcing who I am and what I am doing, so that at least this verbal agreement is recorded. What do you think?

In answer to Nick - I always assumed that you have to tell someone every time you are recording over the phone - FCC regs. However, I would also assume that if you announce yourself as being a member of the press the assumption of any public figure you are talking to would be that everything they said could appear "in the media". Can you record someone saying "I have no comment" and use that?

Contact Robin White by emailing: robin at radiocollege.org

- Tuesday, February 15, 2000 at 08:54:43 (PST)

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Re: Telephone releases: I would advise you to get permission each and every time you do a telephone interview. No need to inadvertently run afoul of a federal or state wire-tapping law.

Re: Releases in general: It is generally a good idea to get a release in writing. I believe that same statutes my not recognize audio releases in certain circumstances (e.g. right to publicity claims), so audio releases are not ideal.

Generally, releases protect you against being sued for torts such as invasion of privacy, intentional infliction of emotional distress, infringement on the right to publicity, and a few others too. It is particularly important to obtain releases if there is any intended commercial use of the tape (and I don't know off-hand if selling tape or Cds, or distribution over the internet, might be considered "commercial"). On the otherhand, if the only intended use is news reporting, and that is pretty obvious to the person being interviewed, then I would not worry about obtaining a release as much.

Nick wrote: "What do I do with a tight lipped county board guy who doesn't want to talk to me? If I sneak up on him in person or on the phone and run the tape just to record him blowing me off (obviously without his permission) am I breaking the law?"

I am not sure what you mean by sneaking up on him, and the answer is, it all depends on the circumstances (hey, I am a lawyer-- I have to hedge), but I would say you are in more danger of breaking a law if you do it over the phone. In person? As someone who is probably a "public official" I would say his right to privacy is considerably diminished, and as long as you were not stalking him, and tried to do tape him in an appropriate place, like showing up at his place of business without an appointment, or just as he is walking out of the office, then you are certainly within your rights as a journalist. Or, to put it another way, if a person is in a place where he or she has a reasonable expectation of privacy, a reporter has to respect that.

Becky: You wrote: "In a recent freelance "job" posting, an acquirer used the phrase "work-for-hire." I thought that meant the acquirer retains all rights to the material and the work. Yet later the acquirer clarified that they only wanted to purchase certain rights (first broadcast, tape and transcript sales). So, technically then, that would NOT be work-for-hire, right?"

If the only "writing" is the job posting, then this would not be work for hire because a work made for hire requires, by definition a written instrument signed by both parties.

You also wrote: Is it true that unless otherwise stated in writing the interviewer owns copyright to (raw) recorded interviews for any and all uses? What if an interviewee has not stated that on tape or in writing, as in a release form? For example, if a person participated willingly in a 1988 interview for public radio, but wanted to prevent the use of that interview, on a website or in a book ten years later...

Interesting question. I am fairly certain that the interviewer would own the copyright in the recording. However, the right to use the recording is not unfettered. If the person who is the subject of the interview can legitimately raise the torts of invasion of privacy, intentional infliction of emotional distress, invasion of the right to publicity, and a few others, then regardless of your copyright interest in the tape, they may still be able to block your use of it. Which points once again to the wisdom of obtaining releases in the first place.

Spencer

- Tuesday, February 15, 2000 at 13:05:50 (PST)

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A great online resource, and invaluable source of information is the Student Press Law Center (http://www.splc.org) and its parent, The Reporters Committee for Freedom of the Press (http://www.rcfp.org).

Although the SPLC is geared toward HS and college journalists, it makes easily understood and highly relevant materials available. Check out the links on their Other Resources page.

Spencer

- Tuesday, February 15, 2000 at 13:14:41 (PST)

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Oh my god, I never thought there would be so many responses to our little scenario, and then that the discusssion would go off in so many interesting directions. Spencer, your perspective and insights on the issues covered are impressive, to put it mildly.

With reference to the Governor scenario - long since abandoned - the only additional point I wanted to make echos Rebecca's and that is the person who calls the Governor a "no good son of a bitch..." is clearly expressing an opinion, and there is no such thing as an "illegal opinion". Oddly enough, the more outrageous your allegations, the safer you are into the territory of opinion.

Also, Spencer brought up Sullivan, which is usually held to be the final word on the subject of libel directed at public figures. I would also direct your attention to Lorain v. Milkovich, which got into the considerably more complex area of what constitutes opinion in it's final published (or broadcast) form. Needless to say, that which appears on the Op-Ed page, or has a disclaimer noting it is opinion may fairly be assumed to be opinion. But, simply putting content under the banner of "opinion" does not necessarily indemnify the producer from charges of Libel. You need to be careful as to form and proof of charges.

I guess the final word when it comes to defending AGAINST charges of libels is simply the truth itself.

It will take me a while to get up to speed with the discussion, but I'm very impressed with the tone so far.

More later this evening>

Jon Beaupre

- Tuesday, February 15, 2000 at 13:54:46 (PST)

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Thanks for the answers, Spencer.

Jon - why don't you stimulate us with another scenario? My concern is that if we only ask about things that we worry about, we might not find out about things that we don't know about.

Contact Robin White by emailing: robin at radiocollege.org

- Tuesday, February 15, 2000 at 14:25:47 (PST)

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Spencer,

The PAG has talked about this before....What about audio clips from film and video that are mixed in to a radio program? Do I need permission?

Kelly Warren

- Tuesday, February 15, 2000 at 15:12:26 (PST)

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Still wondering about libel insurance. The National Writer's Union has open enrollment till March 15.

http://www.nwu.org/

Does everybody have it?

Are you more able to sell a story if you do?

Did I miss the answer or did you miss my question? Que es l'historia?

Thank you, Nannette

Contact Nannette Drake Oldenbourg by emailing: Nannette at cape.com

- Tuesday, February 15, 2000 at 15:30:31 (PST)

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I guess I have an ethical question. What are the ethics involved in recording at a bar. Say it's kareoke night, and you think this might make for some good tape. What is the best way to go about recording? What is acceptable? What is just plain wrong?

Joshua Welsh

- Tuesday, February 15, 2000 at 16:35:08 (PST)

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Milt Lee here:

One area that many people have wondered about for years is the area of "fair use" - especially in relation to music. Suppose a person does an hour long doc that they want to sell as a tape or CD after the show has run. And within this show - there are cuts from BB King, Dr. John and Odetta. All the music is used as background and transitions - not run in complete song form.

And I had another thought, but it's gone. oh well....

Contact Milt Lee by emailing: milt at oyate.com

- Tuesday, February 15, 2000 at 16:42:20 (PST)

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For: our learned leaders.

RE: SAMPLING

I'm glad Kelly brought this up... this question of excerpting sound. My extension of this question is very context-specific: If I use a sample of a piece of sound (from let's say a pop CD) in a large piece of audio art or sound collage am I liable for any copyright? I'm taking bits that are maybe 3 seconds long (maximum MAXIMUM) and including them in my own assemblages of my voice and found sound. Most often I will also process them (i.e.: I will re-eq them or add other effects). Are these samples "mine" or do they still belong to the "original artist" (spit)? I know John Oswald had some legal problem over his collection called "Plunderphonics" but folklore has that that lawsuit resulted from what he did to the picture of Michael Jackson on the cover rather than for what he did with the sound.

Or is it one of those grey areas of technical illegality but functional decriminalization?

Best,

Martin Spinelli

- Tuesday, February 15, 2000 at 16:53:06 (PST)

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Hello again. Is email permission as good as other written permission? Are there acceptable and less acceptable ways of getting electronic "signatures?"

Contact Nannette Drake Oldenbourg by emailing: Nannette at cape.com

- Tuesday, February 15, 2000 at 18:16:26 (PST)

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Let's continue with the "Fair Use" question a bit. This area is frought with ethical and legal land mines. I have had students claim "as long as the clip is under ten seconds (or 20, 60, 90...) the final user was safe. My understanding of the law is that this is not exactly correct.

On one hand, the legitimate reference to a work in a review, preview, or analysis that is part of a regular "news" program (whatever that is) is in a bit safter territory than those who sample musical works for part of an "original" remixed work.

In general, most all of you probably are familiar with BMI and ASCAP. As a signatory to an agreement with either or both of these entities is sort of the gold standard as I understand it. But the question always arises as to what level of usage the agreement covers. In other words, if a network has a BMI/ASCAP agreement, does that automatically cover a local station affiliated with that netowork using the same protected work.

The answer, as Spencer has noted, is "it depends", as much in this hazy territory. If the work is identified as originating with the artist who created it, and the station is already a signatory to BMI/ASCAP agreements, then the producer is probably safe in using the work.

It is less clear if the station is not a signatory. If the program including the protected work is a network program broadcast over the local stationk, the work is probably protected. If the program originated at a station which is not a BMI/ASCAP signatory (a highly unlikely scenario, since virtually all stations of any stature are signatories to both agreements), you may be on shaky ground.

Needless to say, legal counsel for the station would have the final word.

I think the more interesting area, however, is in the area of reports of broadcast on other media.

Here's a scenario to contemplate: Our mythical station, KXYZ interviews the same industrialist noted in the first scenario. The industrialist claims that the Governor has extorted $50 million from a local contractor. KXYZ decides in its wisdom not to broadcast the story, but over lunch, the reporter for the story discusses these allegations with her friend, a columnist for a local paper. The paper runs the story with an attribution "...reliable anonymous sources have made allegations that the Governor extorted $50 million."

The next day, KXYZ reports that the paper ran a story on the extortion allegations.

In this case, fair use questions are probably not as important as the libel ones, but let's examine them first.

Spencer, it would seem to me that on the question of "Fair Use", even in quoting the paper verbatim, the station is on fairly safe ground. They simply reported what the paper published.

On the question of libel, however, in rebroadcasting potentially libelous charges, KXYZ is probably not protected by simply arguing that they are only reporting what the paper published.

It seems to me, when using clearly recognizable clips of protected music, it is important to make sure fees have been paid at some level. Of course, you avoid these questions by using original music.

The real problems arise in the question of sampling, and how distorted the original music is in the remixed version, and if there is an attempt to confuse or mislead the public that the distorted music was the work of the producer of the final (distorted) mix.

Spencer, what have the courts found in these cases?

Jon Beaupre

- Tuesday, February 15, 2000 at 18:48:43 (PST)

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Perhaps an even bigger question with regards to fair use arises with the advent of internet versions of original work. There are generally accepted definitions of what constitutes intellectual property (patents, trademarks, copyrights), and the vast majority of them are nation specific. Granted, there are many signatories to the International Copyright Union, but what happens when a copyrighted work is "webcast" on the internet from a country where the copyright is held to be in force, and then rebroadcast from a country where the work is not protected by such copyright laws?

The end result for the internet user is the same: they get to see or hear the original work. The orinator of the work, however, may not be happy with the rebroadcast of the work, nor would any other "publisher" who believed they had exclusivity over the work.

Spencer, oh wise one, how would you read this?

Jon Beaupre

- Tuesday, February 15, 2000 at 18:59:20 (PST)

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I have a question about a variant of the original scenario. On a live program, a citizen calls another (private) citizen a thief and a child molester. The on-air host, thinking quickly, chides the guest for making personal attacks and informs the public that "opinions expressed are not necessarily etc etc" Is that enough to keep the station out of trouble?

Rich Kirby, WMMT, Whitesburg KY

- Wednesday, February 16, 2000 at 05:53:41 (PST)

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Nannette - I don't have libel insurance> Far be it from me to advise you, but I would skip it right now if I were in your position.

Want to second your request for info on email permission. It's what we have been using to as permission for the articles at Radio College. I'm sure it's dodgy.

Contact Robin White by emailing: robin at radiocollege.org

- Wednesday, February 16, 2000 at 07:00:49 (PST)

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I will try to be brief in this email. ...I do go on a bit...

First, re: the ethics of inteviewing someone in a bar, Joshua, I think the fact that you ask the question means that this could be an ethically sensitive issue. WHen someone grants you the right to record their voice, that presumes that such permission is theirs to give. If their judgement is impaired or they are too young to enter into such an agreement, recording under those circumstances may not only be unethical, they may be illegal. Getting a release - either verbal or on paper - may not be enough. On the other hand, I would be tempted to record anyway, and discuss rights matters later, although that is a really risky proposition. The truth of the matter is that some opportunities for recording simply won't repeat themselves.

Nannette (and others I think)": I'm with Robin re: NWU liability insurance. My guess is that with NWU sponsorship this is a perfectly ethical and legal policy being offerec. However, if you are like the vast majority of indies, you simply don't have the funds to purchase what would in essence be "luxury-peace-of-mind." When we start making in the seven figure range, we can re-evaluate...

Re: Email permissions, Nannette, my take would be Emailed permissions or releases may be better than nothing, but I don't believe they have been tested in the courts. In other words, if there is no other way to get a permission, yes, save the email, even print it out with a date/time stamp. This may not alleviate the need for a more formal record of that agreement, but it may be better than nothing. My suspicion is that these would be hard to hold up in court. As a neat trick, when you get the permission from your subject, ask them for a confirming question that is verifiable from public records, like their Mother's maiden name, or the time and hospital of their birth. This way, if you ever have to prove that you received permission (court appeals would rarely go the other way) from your subject, you could prove that your subject gave you information that only the subject would know. THis is still very tricky, but in a pinch, may be better than nothing at all.

The gold standard is still a signed and dated paper release.

Jon Beaupre

- Wednesday, February 16, 2000 at 10:55:47 (PST)

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Rich Kirby, re: the on-air guest slandering another private citizen; first off, note that the standards for proving libel against private citizens are considerably easier than for public figures, so, yes, this could be a sensitive issue.

Second, simply indemnifying the station by saying "Opinions expresses are not necessarily..." my discourage a slandered victim from suing the station, but it doesn't rule it out completely.

In the Sullivan case that Spencer mentioned earlier, the Plaintiff in the original case, Louis Sullivan (not the architect) sued the New York Times for charges made in a paid advertisement that was printed in the Times. The Times originally claimed that they had no control over what was printed in what amounted to a paid advertisement; in fact to exercise such control would infringe on someone else's first amendment rights. The appeals courts found differently and said, in summary, if it appears in your paper, you are responsible. I would think the same would apply in the case of the telephone guest who slanders anohter private citizen.

Now, this being said, it does not necessarily follow that such slander charges by a private citizen against the station would win their case in court - or even at the regulatory level. The FCC has taken a considerably dimmer view of stations claiming they had no responsibility for callers to their talk shows of late, but it would not be unheard of for a court to say, in essence, "how can a station control what a caller says?" and further, "..imposing censorship responsibilities on a station over callers to their on-air programming is too great a burden. It is critical that we protect the free and unfettered exchange of ideas, no matter how distasteful those ideas may be..." It won't stop the slander victim from suing, but it could bolster the station's position.

Bottom line, write, produce and air the truth, and clearly identify what is opinion.

Jon Beaupre

- Wednesday, February 16, 2000 at 11:06:28 (PST)

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Hokey smokes, Bullwinkle, how to catch up with all of this?

There has been a lot of talk and questions about "fair use" and the need for permissions and what if scenario's, all of which read like a bar exam, which is to say loaded with legal land mines.

The best place to start with this is to give the legal definition of fair use, which is defined in the copyright act at Section 107. The act states that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copy-righted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

That having been defined, let me caution that this is an extraordinarily fact specific area, meaning that each determination depends upon the facts of that situation. And, let me emphasize, there is no such thing as a 10-second rule, or 30-second rule, or any rule. None. Nada. The only way to know with certainty if your use of another persons copyrighted material is a fair use is to use it, be sued, and win. Absent that, there is always a question, which is why the best course of action is to obtain permission if you can.

Kelly wrote: "The PAG has talked about this before....What about audio clips from film and video that are mixed in to a radio program? Do I need permission?"

Again, the answer is, if you are using someone else's copyrighted material, it is a good idea to obtain permission.

Josh asked: "What are the ethics involved in recording at a bar." This is intriguing. It raises the necessity to get permission from not just simply the people you might be interviewing, but the owner of the bar, whom I would be more concerned with.

Milt wrote: Suppose a person does an hour long doc that they want to sell as a tape or CD after the show has run. And within this show - there are cuts from BB King, Dr. John and Odetta. All the music is used as background and transitions - not run in complete song form.

Good question, one that I have wrestled with, but have no definitive answer for. It is my feeling that if the show is about the music itself then you have a much better argument that it is fair use, as opposed to simply using the music as an aural element -- set decoration -- in a recording. Remember, the fair use exception was incorporated into the law to leave some wiggle room for purposes of criticism, comment, news reporting, and teaching without which it would be virtually impossible to talk about another's work. Looking at the criteria laid out in the statute, how would you answer the question?

Martin brings up Sampling. Let me start by sampling some of Martin's question. He asks: "If I use a sample of a piece of sound (from let's say a pop CD) in a large piece of audio art or sound collage am I liable for any copyright? I'm taking bits that are maybe 3 seconds long (maximum MAXIMUM) and including them in my own assemblages of my voice and found sound."

Well, the place to start is, of course the copyright act, Section 106, which gives to copyright holders the exclusive -- I repeat exclusive -- right to do and to authorize others to do certain things with their work, including: "to prepare derivative works based upon the copyrighted work." Your use of a sample in your new work is a derivative work.

So, yes, technically your use of a sample is a violation of the copyright. I think the fewest number of notes that have been held copyrightable has been 6, and certainly using one note of anothers work would not be a copyright violation, in between it is grey. Realistically, I think it will ultimately depend on how recognizable the original sample is in the new product. Most obvious samples are samples of the hook, or the chorus -- some may argue the heart -- of a song. If that is recognizable in your work, as a legal matter, I'd be worried. Ethically, also, ask yourself how you would feel if someone took your work without your permission and used it in ways that you did not like?

Martin asks further "Are these samples "mine" or do they still belong to the "original artist" (spit)?" The sample still belongs to the original artist, but your new work which incorporates that sample may be copyrighted by you.

Nanette asked about e.mail permission, and I think Robin did too. The purpose of the signature is as proof. If it is just to prove that someone acknowledged, then I think it is acceptable. In some situations, however, there are statutes which require a signature, which means that e.mail permission would not be acceptable (and what about fax signatures one might ask, in that case). That being said, I'd encourage actual signatures in all cases, but realistically an e.mail is better than nothing.

Spencer, it would seem to me that on the question of "Fair Use", even in quoting the paper verbatim, the station is on fairly safe ground. They simply reported what the paper published.

Jon ... it depends. Remember the newspaper is copyrighted.

"On the question of libel, however, in rebroadcasting potentially libelous charges, KXYZ is probably not protected by simply arguing that they are only reporting what the paper published."

They are definitely not protected. Repeating a libel is a libel, and putting quotes around it won't save you.

"what happens when a copyrighted work is "webcast" on the internet from a country where the copyright is held to be in force, and then rebroadcast from a country where the work is not protected by such copyright laws?"

This is an astounding complicated area and depends in part upon, are we talking about music or just words (words are much easier). It is generally accepted that even though this is a "global" medium, that the question of origin determines which laws apply. A "rebroadcast" on another's site would be a violation if no permission is obtained.

Rich's question has to do with station liability for a callers comments. I have not looked at the case law, but my guess is that if what was said was libelous (i.e. the other person was not a thief and child molester) that the station would be liable. Statements such as "these do not represent the opinions" only apply to opinions. In Rich's scenario, they were assertions of fact. The station is, as a matter of FCC regulation (the law) ultimately responsible for everything that goes over its airways, and in this case especially so since it created to forum for others to speak. [Of course, if the station pays me a hefty retainer, I'd be happy to argue the contrary -- a joke. just a joke]

Jon wrote: "Bottom line, write, produce and air the truth, and clearly identify what is opinion." And I add, on call-in programs .. use a time-delay.

Spencer

- Wednesday, February 16, 2000 at 15:15:19 (PST)

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Van der Puy here,

Boy all this legal talk has my head spinning. Makes me happy I flunked out of Marquette Law School twentyfive years ago. I don't think I could take this as a daily feed.

Thank you though for the dope about fair use and libel. I'm going to be more careful.

But really, Jon, "write, produce, and air the truth, and clearly identify what is opinion."

I wish it were this straightforward. I think Phil Ochs said "The truth is like silly putty." I agree.

What do you make of an old newspaper editor from here who used to invent and publish contentious letters to himself to stimulate discussion in the community? What law was he guilty of breaking?

Nick Van der Puy

- Wednesday, February 16, 2000 at 18:02:14 (PST)

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Nick, I love the idea of an editor sending himself invented contentious letters to stimulate discussion! I think I see a screen play there.

To quote Spencer: "...a joke. It's just a joke!"

You are right on the grey territory between fact and opinion. And in fact (no pun inteneded), good news writing may seem to have a bit of both. Can you call a politician a buffoon in the course of a story, if it is well known that he has spoken drunk at press conferences, stumbles while walking, and in generally perceived as a fool?

Good question. As a journalist/producer, I would take the route that tended to push the envelope a bit, though only a bit.

In a recent story on primary health care in Orange County California, I wrote that the "emergency health care system in Orange County was so bad that a CA Supreme Court report called for significant changes..."

My editor was very uncomfortable with that assertion. But I stood my ground, showed her the four or five top findings of the Supreme Court report, and she had to admit that at least according to the highest court in the state of CA, it was a really bad system.

Side bar: Orange County, with over five million citizens does not operate ONE primary care facility! It's a scandal, I say!

My experience has been that legal counsel has generally laid out the parameters of what was definately safe, what was definately not safe, and what was somewhere in between, and left it up to station management to decide how far they wanted to push matters.

I take the position that we DO have to push matters. Always fairly, always carefully thought out, and always ethically. The three part test I subject my students (and colleagues) to is this:

1. Is it true?
2. Is it fair and ethical?
3. Is it safe?

If your story or any part of it fails even one part of that test, you shouldn't do it. But it gives considerably more latitude than what a typical risk-averse manager might do.

We are always striking a delicate balance (to quote Fred Friendly), and it is our job as producers to move the fence just a little bit further.

Totally great discussion. Spencer, you rock!

Jon Beaupre

- Wednesday, February 16, 2000 at 21:31:48 (PST)

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I have two questions: Does the discussion about fair use of audio recordings apply to readings of an author's work. In this case, it's in the context of a report about the author's home town, and excerpts of 20-30 seconds are peppered throughout the five minute story. Should I worry? Should I call the publisher and ask permission?

Also, along the lines of Milt's question, I wonder about selling a series of music documentaries in which most musical selections are excerpts, not whole pieces. Also, the copyright has expired on most of the music. Any thoughts on whether I am risking my neck publicly selling these?

I hope you're not overloaded with questions. Thanks.

Contact Rachel Goodman by emailing: rachel at well.com

- Thursday, February 17, 2000 at 09:04:25 (PST)

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Rachel: You asked if fair use would apply in the context someone reading an author's work in the context of a report about the author's home town, and excerptsof 20-30 seconds are peppered throughout the five minute story.

I think it is always a good idea to obtain permission, especially if it relatively easy to get. The reason is simple. Without permission, there is always a reason to worry because the only way to know with certainty that your use is fair use is to be sued and win.

I think (and this is just my personal take - not a legal opinion) that in your scenerio that you would in probably be OK. Why? Let's look at the act, which says: fair use is a valid defense to a charge of copyright infringement if the purpose of the use is criticism, comment, news reporting, teaching, scholarship, or research. It seems pretty clear that this may be regarded as a news story or commentary or criticism, but in any event certainly the type of work congress was thinking of when it created the exception. The Act also sets out criteria for courts to consider in determining whether the use made of a work in any particular case is a fair use. The first factor is: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

You did not say, but let's assume it is for public radio. OK so the balance is tipping toward fair use.

Criteria (2) :the nature of the copyrighted work. Under this factor, the courts analyze the original work, looking to see if the original work was "factual," such as a news report, or "fanciful," such as an original, creative work. The copyright law gives little protection to factual works, and more protection to fanciful works. In your situation, it is a reading from a novel, so the scale tips away from fair use.

Criteria (3) looks at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Under this factor, the courts look at both the quantity and the quality. In other words, did you take just a small bit, or did you rip the heart out of it. This is not just a measure of quantity, which is easy, but quality. By example, reading the first line Ginsburg's "Howl", which is generally well known, is qualitatively more of a taking than reading line 48. In your case, i don't know enough to know how the scale would tip.

Finally, (4) the effect of the use upon the potential market for or value of the copyrighted work. what is considered is not just the harm caused by the mere act of copying, but whether similar copying by others would have a substantial adverse impact on the potential market for the original work. In your situation, i would argue that not only does your use not harm the work, but increases the market for the original work, thus tipping in favor of fair use.

Now, onto your second question:

You wondered about selling a series of music documentaries in which most musical selections are excerpts, not whole pieces. Also, the copyright has expired on most of the music. Any thoughts on whether I am risking my neck publicly selling these?

For the reasons laid out above, you always run a risk when you use someone elses copyrighted material without their permission. Just how great that risks is entirely dependends on the facts of each case.

However, if the copyright has expired on the work? Then it is public domain, meaning you can use it in any way you want without anyone's permission. PD means it is free.

Spencer

- Thursday, February 17, 2000 at 12:41:21 (PST)

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I notice that at the bottom of this page it states "This page created by Robin White. Copyright ©2000 by Robin White and Western Public Radio. " Can Robin, or WPR, publish this entire discussion and all of our names as a book without our permission if they own the coyright? Can they take an excerpt and use it in an advertisement? Any thoughts?

Spencer

- Thursday, February 17, 2000 at 12:44:23 (PST)

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What a chilling thought! I hope this doesn't end the discussion.

Contact Phil Easley by emailing: easleypm at jmu.edu

- Thursday, February 17, 2000 at 13:54:03 (PST)

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Spencer - Jolly good question. I would like to hear some actual answers from people and you, but I will also clarify...

Actually it should say something like "The copyright of the words belongs to the poster." It doesn't because in the rush to get the series going I just didn't have time for every last detail and I used our default footer. You will see on the other pages of the site that the copyright remains with the authors. We have a copyright policy linked from the front page (About Us) section of the site. It reasserts the copyright holder and asks that if people quote from material posted here that they ask permission of the poster and of Radio College.

Now please tear us apart for sloppiness and in the meanwhile we are meeting with our publishers on Monday! (a joke, only a little joke)

Contact Robin White by emailing: robin at radiocollege.org

- Thursday, February 17, 2000 at 17:46:15 (PST)

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Aw, go for it, Robin.

It brings to mind an idea for another thread, doesn't it?

Contact Nannette Drake Oldenbourg by emailing: Nannette at cape.com

- Thursday, February 17, 2000 at 17:53:17 (PST)

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Phil and Robin ... my comment about the copyright notice was meant to provoke discussion, not chill it, to see if anyone out there learned anything.

Robin, you and WPR do own the copyright in this page, much like a newspaper owns a copyright in their paper. That does not necessarily mean that as between you and the contributors to this page that your rights extend beyond "this" use.

Spencer

- Friday, February 18, 2000 at 06:27:39 (PST)

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Re: MAD COW

At the beginning of the week Nick raised the "Oprah" case. In that case a group of Texas cattle ranchers sued Oprah, her production company, and a guest for libeling beef (no, it's NOT a joke). She was accused of causing a drop in the futures price of beef because of comments on her show about mad cow disease.

Nick asked: What was the outcome and what does it teach us?

The outcome was, the case was dismissed and Oprah et al. found not liable. This decision was upheld by the appeals court recently. For a news article about the decision go to http://www.rcfp.org/news/2000/0210oprahw.html

What does it teach us? It tells me that those with money and power will use their money and power to try and stop others from speaking. It's an old story. I suspect that the motivation of the cattle ranchers was not so much to win the case against oprah, but to chill others from talking about the health and safety of beef, american beef in particular. It also teaches me that the courts in this country have a healthy regard for freedeom of expression.

Anyone else with any thoughts on this?

Spencer

- Friday, February 18, 2000 at 06:50:43 (PST)

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Hello,

Sandy Lyon. Years ago I used to submit to NPR and CBC. I was program director at WOJB FM (the largest Native owned Community station east of the Mississippi)I am now an activist for environmental protection/and an independant audio producer.

My question is this.......after having watched the comments all week.

At what point does the producer/station/network/media begin the process of "fear of lawsuit/slapsuit" so much so that it/they/he/she decides to not even cover an issue. That way the producer/reporter/station/network/media does not even have to face the nasty questions posed here this week. The only impact that has, then, of course, is that public knowledge and public debate is silenced ever the more. As the silence grows it makes one think that the silence IS the song and the world is only slightly less better off as a result.

Yet...picture this image. Remember the guy in front of the tanks in China. Well, imagine the guy with a microphone in hand. They may run him over (with lawsuits, with big money, with threats, with neglect) but, if there is another guy (or gal, of course) behind him with a microphone, and another one behind him....well, then maybe, just maybe we can save the earth upon which we live and our children's children from death by silence's song. It is up to us to know what courage means in these times. Thank you. I look forward to meeting you down the trail.

Sandy Lyon

- Friday, February 18, 2000 at 11:55:14 (PST)

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Would you please address the laws concerning the use of cover versions of songs? I host a weekly program of music & information on a community radio station. The program begins with a particular song by a well known band. Over the years, other artists have covered the song, so sometimes I use one of those versions, which I know is fine.

My question: Also over the years, I have acquired other versions of the song recorded by local musicians, fellow programmers, bands, kids, etc. I have cassette, reel to reel, & DAT versions of the song which I use on air. It has become a creative, interactive thing, which involves the community and honestly, I really never thought it could be a problem in any way, until reading this discussion. Should I try to get permission NOW after 11 years of playing (& inviting) cover versions, as well as doing various other things with the original song: sampling, reading poetry over the instrumental intro, playing two recordings at once, changing the speed, etc. Thanks for all the useful information. Also, if it's ok to be doing this, your versions of Talking Heads "Niave Melody" are welcome...

Cathy Melio

- Friday, February 18, 2000 at 12:08:15 (PST)

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Sandy: Great comments, and great image. The first amendment is a powerful shield, which I hope encourages more microphones to stand up. I'm glad to be on this earth with ya.

Cathy: Music law is fairly complicated, so it will be a little hard to condense it here. I hope this helps:

There are two copyrights in a musical recording: the owner of the actual recording, usually the record company, and the owner of the underlying musical composition, usually a publishing company or the songwriters.

Do you need permission to record a cover song? Yes, if you are making the recording. Cover songs involve obtaining permission from the owner of the underlying musical composition, and the necessary license is called a "mechanical license." This type of license is governed by statute, which requires the owner to issue a license, and sets the maximum statutory rate, which is currently 7.1 cents per song of 5-minutes or less, per unit. Most mechanical licenses are issued through the Harry Fox Agency.

Do you need permission to play the cover versions? Actually no, you don't, since the stations license with ASCAP and BMI would pay for that use.

Do you need permission to Sample? Yes, and this was covered above. In this situation, you would need permission from both the record company, since the original recording is being sampled, as well as from the music publisher.

Some useful sites, which have much more info and fact sheets on copyrights and music:
ASCAP: http://www.ascap.com
BMI: http://www.bmi.com
SESAC: http://www.system-x.com/sesac/data.html
Harry Fox: http://www.nmpa.org/hfa.html
Copyright Office: http://lcweb.loc.gov/copyright/rb.html

Cathy, I am constrained to advise you regarding the specifics of your project, As a lawyer, I advise you to get permission. But, as a human being (yes, lawyers are people too), please do not let the technicalities of the law get in the way of your creative process. If you have been doing this for 11 years without a problem, don't stop now. What you are doing sounds cool. Stay naive...

Spencer

- Friday, February 18, 2000 at 13:24:43 (PST)

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It's about 5p here on the east coast. The snow is coming down hard, truly a beautiful sight. I am about to call it a day.

And with that, brings the end to this challanging week of questions and thoughts. I want to thank Robin for this opportunity. Robin, you're doing a great thing here, old bean, bringing this forum to the people. A round of applause for you. I also want to thank co-moderator Jon Beaupre, for his provocative and creative thoughts.

I want to leave with the following thought, expressed in "The Law of the Student Press" (Student Press Law Center, p. 19)-- "As important as it is that journalists should understand the law and weave that understanding into their editorial decision-making process, they must, in the end, follow their own ethical principals -- no matter what the law."

Spencer

- Friday, February 18, 2000 at 14:08:55 (PST)

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It's 5.30 in Bishop, California. Sun just going down to the west over the Sierra Nevada. Last touches of pink in the clouds and the chill of the desert winter night starting to find its way into the bones.

Spencer, Jon - what an excellent discussion this week. Thank you very, very much. A lot of clarity, a lot of light shone into dingy corners. This discussion will be archived for future reference. Please think of coming back and doing this again for our next Speaker Series, whenever we get around to putting that together.

Thanks much to all the questioners. FYI, even though we may technically own the copyright to the discussion, we wouldn't use your words for anything without asking permission first.

I think Sandy was right on the money. To Spencer's ending quote I would add good luck and courage to those who follow their own sense of ethics. Especially those who stand up and challenge the dull silences of the status quo.

To me the law is just an agreement that we make with each other. Happens to be sanctioned by the Governement. But agreements are not for ever and sometimes need to be rethought.

Contact Robin White by emailing: robin at radiocollege.org

- Friday, February 18, 2000 at 17:48:22 (PST)