Guide Through the Legal Jungle

Copyright Registration for Your Podcast

This blog posting uses the term podcast; however, these guidelines for copyright registration apply to any original audio recording you produce.

Submit Your Application Electronically or On a Paper Form

You can register the copyright in your podcast as a basic claim using the Copyright Office’s online registration system or using a paper application form available from the Copyright Office’s website. Online registration is less expensive and has a faster processing time.

Determine Which Elements of the Podcast You Own

Your podcast potentially consists of two separate copyrightable elements. There is a copyright in the recording and a copyright in the underlying material (assuming the underlying material qualifies for copyright protection).

For example, suppose you write and develop a seminar on woodworking and then record a podcast featuring that seminar. There is a copyright in the seminar content you developed. There is also a separate copyright in the podcast recording of the seminar.

If you are the producer of the podcast but did not create the underlying content, claim ownership only in the sound recording. If you are also the owner of the underlying material, you may claim ownership in both the sound recording and the underlying material. By registering the underlying work and sound recording together in one application, you pay one filing fee instead of two.

More Resources on Copyright Registration:

How to Copyright Protect Your Work. Part One.

How to Copyright Protect Your Work. Part Two.

Copyright Protection for Internet Content. Part One. – Some Basics

Why You Must Check the Status of Your Copyright Registration Application

The Cyber Citizen’s Guide Through the Legal Jungle includes a sample of a completed copyright registration application for a podcast with explanatory notes.

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Licensing for Music Samples

Sampling entails using portions of existing music in your new recording. For example, suppose you sample “I Will Always Love You” for a track on your forthcoming album.

Does sampling require permission? Most likely, yes.

Sampling may sometimes qualify as a fair use meaning your unauthorized use of the music is not copyright infringement. Unfortunately, there is no bright line rule for fair use. Using eight or four or even two bars of music does not guarantee a fair use determination. Instead, fair use depends on the specific circumstances of each situation.

As a result, it is risky to rely on fair use for sampling. Most commercially released albums obtain licenses for all sampled music. Which licenses you need depends on how you sample.

Licenses for Sampling the Song

If you go into a studio and record your own version of “I Will Always Love You”, you need a license only from the song copyright owner. Dolly Parton wrote “I Will Always Love You”. Velvet Apple Music, the music publisher that administers rights in the song, is the company you would contact for a sampling license.

Depending on the extent your album features “I Will Always Love You”, Velvet Apple Music might request partial ownership of your new song as compensation for the sample. Alternatively, Velvet Apple Music might be satisfied with a flat fee or percentage of the revenue generated by your new song without an ownership interest.

Licenses for Sampling the Sound Recording

Suppose instead you want to sample Whitney Houston’s 1992 performance of “I Will Always Love You”. In that case, you need permission from the sound recording owner. As compensation, the sound recording owner might ask for a set license fee or for a royalty. Sony BMG/Arista, Whitney Houston’s record label at the time of the recording, was the original sound recording owner. I’m not certain in whose ownership the recording landed after Arista’s demise.

You can not use the sound recording without using the underlying song. As a result, if you use Houston’s recorded performance, you are also using the underlying Dolly Parton song. In that case, you need licenses from both the song copyright owner and from the sound recording copyright owner.

For an explanation of how songs differ from sound recordings, see the posting, What Is a Music Copyright?

Protecting a Title (of a book, film, song, etc.)

No Copyright Protection for Titles

First, know that copyright law does not protect titles. Titles are too short to qualify for copyright protection.

No Trademark Registration for the Title of a Single Work; Maybe for the Title of a Series

In certain circumstances, trademark law can protect titles. However, the title of a single work is not eligible for federal trademark registration. In contrast, the title of a series is eligible for federal trademark registration.

Other Ways to Protect the Title of a Single Work

Secondary Meaning. Even though the title of a single work is ineligible for trademark registration, the title of a single work may nevertheless obtain some protection under federal trademark laws if the title has developed secondary meaning.

Secondary meaning exists when "the title is sufficiently well known that consumers associate it with a particular author's work”. It is okay if the "particular author" is unknown, as long as consumers believe the mark refers to a "single source, even if that source is anonymous." When determining the existence of secondary meaning, courts look at factors such as the scope of sales and advertising, length of use, the number of sales, and the number of customers.

Here are examples of titles determined by courts as having secondary meaning:

Bridge on the River Kwai. A 1957 film that was viewed by millions of people, won several Academy awards, and was the 58th highest grossing motion picture of all time (at the time of the court's analysis in 1998).

The Book of Virtues. This 1993 book authored by William Bennett and published by Simon & Schuster was on The New York Times bestseller’s list for 88 consecutive weeks, sold more than 2.2 million hardcover copies, was an alternate selection for "The Book of the Month Club", and was advertised extensively in national publications .

Top Gun. This film had advertising expenditures in excess of 17 Million Dollars and grossed 72 Million Dollars within the first 72 days of its release in United States theaters.

Unfair Competition. Protection of a single work may also be available under state unfair competition laws. Unfair competition refers to fraudulent, deceptive, or dishonest business practices.

Most states have laws forbidding "passing off," a form of unfair competition. In colloquial terms, passing off laws prohibit a person from using a deceptively similar title to your movie/book/song’s title in a fraudulent attempt to siphon the good will you have established in the product.