Is using music in a podcast copyright infringement? UMG v. PokerNews

Is using music in a podcast copyright infringement? UMG v. PokerNews

Copyright literally means the right to copy but has come to mean a group of exclusive rights granted by law to copyright owners for protection of their work. United States copyright law uses the phrase original work of authorship to describe what is protected by copyright law, but that term includes many different types of artistic  works.  Music, sculpture, motion pictures and sound recordings are some of the many types of creative works that are eligible for copyright protection.  An artist is automatically granted a copyright to their work when the work is created, but the artist can strengthen the rights associated with the copyright in the United States by registering the work with the Library of Congress.

A copyright grants the owner of the copyright the exclusive right to reproduce, distribute, perform, transmit, display the work or prepare derivative works based on the original work.  If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be considered copyright infringement.  A copyright owner can file a lawsuit requesting an injunction to stop copyright infringement that is happening and to get monetary damages for copyright infringement which has happened.

However, a copyright does not grant a copyright owner absolute control over the copyrighted work.  There are some limits to the control a copyright owner can exert over their work.  One of the most commonly cited defenses to a copyright infringement claim is fair use.   A fair use, under copyright law, is any copying of copyrighted material done for a limited and transformative purpose, such as to comment upon, criticize, or parody a copyrighted work. If a use of a copyrighted work is considered a fair use it can be done without permission from the copyright owner.  Stated another way, if a use of a copyrighted work is considered a fair use, it would be considered copyright infringement.

While copyright fair use is an important part of american copyright law, it is frequently more prudent to get a license to use the copyrighted work from the copyright owner.  The fees associated with a copyright licence can seem high, but the cost of a license is nothing in compared to the attorneys fees and damages associated with a copyright infringement lawsuit.

UMG Recordings, Inc. v. iBus Media Limited, 2:18-cv-09709 (C.D.CA 2018) is a case which could have been avoided if the defendant got a license to use copyrighted material. The plaintiffs in this case are a group of the largest record labels and music publishers in the world. The defendant in the case is iBus Media, a global content creation and technology company that owns and operates the website PokerNews.  PokerNews publishes several different types of media about gambling and playing poker.  One of the media products produced by PokerNews is a podcast.  A podcast is a digital audio file that is made available for download.  Some of the PokerNews podcasts include copyrighted musical works owned by the plaintiff.  The plaintiff alleges that, by incorporating the works in the podcasts, the defendant infringed on the plaintiff’s exclusive rights to reproduce, prepare derivative works based upon, distribute, and publicly perform the works.  The plaintiff claims there are at least 253 instances of infringement, and the plaintiff is requesting statutory damages of $150,000 per infringement.  The total judgement could be more than $37 million dollars.

It is possible that the parties will settle the case before it goes any further, but if the defendant attempts to fight the case they will have a difficult time demonstrating that playing copyrighted music in a podcast is not copyright infringement.

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