Rules For The Revolution: The Podcast

Answering your questions about podcasting, new media and the law.

Episode 011: Fair Use!

Click on this link to listen to Episode 011 or subscribe and listen through iTunes


Host: Colette Vogele

Guest: Tony Falzone, Executive Director, Stanford Fair Use Project
An intellectual property litigator with nearly a decade of experience, Tony has advised and defended writers, publishers, filmmakers, musicians and video game makers on copyright, trademark, rights of publicity and other intellectual property matters. Prior to his work at Stanford, he was a litigation partner in the San Francisco office of Bingham McCutchen. He is a 1997 graduate of Harvard Law School, and was a law clerk to the Hon. Barry T. Moskowitz, U.S. District Judge, Southern District of California.

Topics and Questions for Episode 011: Today’s episode brings back Tony Falzone, Executive Director for the Fair Use Project at Stanford’s Center for Internet and Society. Tony describes what Fair Use is under the Copyright Act, and how the law is developing in this important field that helps to balance copyright and free speech under the First Amendment.

Links for this Episode

  • Stanford Fair Use Project
  • 17 USC § 107 (the Fair Use section of the Copyright Act)
  • Campbell v. Acuff-Rose Music (The Pretty Woman/2 Live Crew case)
  • Harper & Row v Nation Enters. case (re: the Gerald Ford memoir case)
  • Castle Rock v. Carol Publishing case (The Seinfeld trivia game case)
  • Bill Graham v. Dorling Kindersley (The Greatful Dead concert poster case); Cathy Kirkman’s summary.
  • Blanch v. Koons case (from Patry Copyright Blog) (see also earlier post on Patry Copyright Blog)
  • Rogers v. Koons(check out images here)
  • Schloss v. Joyce case
  • Center for Social Media’s Documentary Filmmaker’s Best Practices in Fair Use
  • Copyright Office’s fair use description
  • As always, you can reference the The Podcasting Legal Guide: Rules for the Revolution for more information on legal questions related to podcasting.

    Credits: Benjamin A. Costa, Legal and Production Intern. Music for this episode is licensed from Magnatune. (Artist: Burnshee Thornside; Album: The Art Of Not Blending In; Song: Can I Be A Star.) Special thanks to Creative Commons and Alex Roberts for the logo design, and to Bill Streeter for getting this site designed and rolling for us.

    Feedback: We would very much like to hear from you and get your feedback on this new podcast series. Things you like, don’t like, or questions you have that you’d like answered in a future episode are welcome. Please send us your feedback and questions by emailing us at colette [at] rulesfortherevolution [dot] com or by calling our listener comment line at 206-350-5738.


    Creative Commons License

    The original content of this podcast is licensed under a
    Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. Please attribute legal copies of this work to “Colette Vogele, Rules for the Revolution: The Podcast”. For information on commercial use, please contact colette [at] vogelelaw [dot] com.


    3 Comments so far

    1. Rules for the Revolution « Tombrarian April 26th, 2007 4:44 am

      [...] As of April 2007, she has 12 episodes. I just listened to episode 12 which is about Promonet, a site which legally provides music for podcasts and other web applications. As was the case with this episode, she has guests on her podcasts, so it’s more of a lively interview format rather than just someone pontificating about copyright laws. Some of the issues she’s covered in previous episodes include: fair use, section 230 of the CDA, and DMCA. Must listening for librarians. [...]

    2. [...] I spoke a bit about fair dealing in South African law in episode 1.6 and in this episode I present a discussion between Colette Vogele and Tony Falzone about Fair Use in an episode of Rules for the Revolution which was published under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. This discussion is published under the same Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License notwithstanding Legally Content’s own Creative Commons license. I recommend that you visit Colette’s post on Rules for the Revolution for her show notes and that you subscribe to Rules for the Revolution which is a fantastic legal podcast focussed on American intellectual property law. [...]

    3. [...] October 1, 2008 at 7:46 pm · Filed under Uncategorized I just listened to a podcast called Rules for the Revolution produced by Collette Vogel, episode 11.  She reminds me of every boy’s dream: mannerisms of a cheerleeder, intellegence of an attorney, (which she is) and the tenacity of an activist.  Her guest was Tony Falzone, head of the Stanford Fair Use Project.  Fair use refers to exceptions in copyright law.  Falzone was eloquent in his explaination of the topic, and divided the issue into 4 factors.  The first factor to consider when deciding to use another’s work in your own is: did you change it?  The courts often look at wether or not the finished product has been transformed, and to what degree.  The second factor is: where did the original material come from?  If it is an historical record, or not copyrighted material, then end of story, its free to use.  The third factor to consider is: the amount of original material that you are using.  If you made a short film, and used the first 20 minutes of the soundtrack to The Little Mermaid, you would be in violation of copyright law.  And even if you only use a little bit of the soundtrack to that film, it had better not be the part that sings, “under the sea” – its most recognizeable lyric.  That is called by Falzone as the “heart of the material” (he actually used a scenario that cited the review of a book in which the review was a ’spoiler’).  The fourth factor has to do with the effect on the market that the new material has.  If sales of the original are threatened by the new material, then don’t do it.  You will be sued.  Most of the factors are matters of opinion to an extent, so be careful either way. [...]