Publishing

Legal and Ethical Considerations for Your True Crime Podcast

By Mikaela Gross

Imagine you’re sitting on the next big true crime hit. The nonfiction genre has ballooned in recent years across media, particularly in the podcasting space where production costs are relatively low and there are fewer gatekeepers to content distribution. Long gone are the days when the choice was among America’s Most Wanted, 20/20, Cold Case Files, and Unsolved Mysteries. The first seasons of the true crime podcast Criminal and the investigative journalism podcast Serial were released in 2014. Netflix’s first season of Making a Murderer came out in late 2015. The immediate popularity of these series was evident in their ratings, and they have been followed by rapid exponential growth in the true crime and investigative journalism entertainment space.

While true crime is often equal parts edge-of-your-seat entertainment and hard-hitting journalism, it’s important to remember that part of your job as a journalist is to stay within the bounds of the law and maintain a high level of ethical standards. Here are some tips for how to do so.

(1) Observe best journalistic practices in conducting research and investigations.

One of the easiest ways to stay on the right side of the law – most critically, to enjoy the full protection of your First Amendment right to speak freely – is to follow universal standards of ethics in journalism. If you don’t work for a large media organization that promulgates its own code of ethics, don’t worry. The Society of Professional Journalists publishes their Code of Ethics online, and several news organizations such as The New York Times also make their internal ethical guidelines available to the public.

In keeping with the high standards of journalistic ethics, here are some key suggestions (but by no means an exhaustive list) for investigating and reporting on your true crime story:

  • Be careful about making promises to, or developing personal relationships with, sources. Whether a source is asking to be off the record or for anonymity, or has an expectation or implies an expectation of a quid pro quo exchange such as a favorable portrayal, making promises to sources can quickly become tricky when later reporting your story. Personal relationships do develop over the course of cultivating a source, and whether by mere appearance or in fact, these dynamics can undermine your authority on a subject and imply a bias, depending on the circumstances. In every situation, maintaining professionalism will be key.
  • Don’t get involved in any formal investigation. Remember – you’re a journalist, not a member of the police force, the prosecution team, or any other public agency. Don’t offer rewards for information or make assurances to victims or families, or the public, that you will get to the bottom of it.
  • There is always more than one side to a story. If you expect to make accusations against any individual or company in the final story, ask them for comment. Protect your neutrality by always giving the “other side” the opportunity to counter any allegations or defend their actions.
  • Know your rights (and the legal limitations) when it comes to newsgathering. This includes access to private property, whether you can record conversations without every participant’s permission, when to disclose who you are and what you’re doing and engaging or citing anonymous sources (especially government employees), and more. These rules may vary by jurisdiction, and things can get even trickier when dealing with digital media or communications that cross state lines.

(2) Vet your material from development stage through production.

When talking about real people and actual events, especially when criminal activity is alleged, you should be wary of crossing the line in certain areas of law, such as defamation and the right to privacy, and in some instances copyright law and the right of publicity. Fact checking and legal vetting should be part of your process.

A defamation claim could arise if you make a false statement of fact about another person that injures their reputation, and you did so either negligently or with what’s known as “actual malice.” If the plaintiff is a private individual, you would only have to be negligent in making that statement, whereas if the plaintiff is a public figure you would be at fault if you made the false statement with “actual malice,” that is, knowingly or with reckless disregard for the truth.

A false light claim could also arise (depending on the jurisdiction) if you widely make a statement that portrays a person in a “false light” that would be highly offensive to a reasonable person. The statement need not necessarily be a false statement of fact, but rather, create an implication, or inference, that is not true. In some ways this type of claim is similar to defamation, and they sometimes overlap, but it technically falls within the realm of privacy law. Note that reputational damage does not generally have to be proved under a false light claim – the harm caused here is emotional distress.

You could also face a claim for the publication of private facts, which is another type of privacy violation, if you publicly disclose a private fact about an individual that is offensive to a reasonable person, and the fact is not one of legitimate public concern. Unlike defamation and false light, there’s no requirement that the disclosure of information be false either in fact or in implication; rather, this sort of claim tends to arise when private information is made public that embarrasses the individual who is the subject of the statement. 

In addition, a right of publicity or misappropriation claim may arise if you use a person’s name, or identifiable features such as their likeness or voice, for commercial or other exploitative purpose. In most states, the ability to use a person’s name or likeness in expressive works such as films, books, and podcasts are protected by the First Amendment, and liability will not arise if the person’s name or likeness is also used in advertising for that expressive work provided it is truthful and therefore “incidental” to the protected expression. That said, the scope of right of publicity and misappropriation laws vary from state to state; for example, some states grant postmortem rights of publicity while others do not.

Finally, a copyright infringement claim could arise in a true crime story if you’re using third-party copyrighted materials without permission. You may need to consult an attorney for a fair use review of your podcast, in particular if the subject of your true crime story is or was an artist such as an author or musician, and you want to use their work in your story.

It’s a good idea to consult a lawyer early in the process when dealing with the type of risky subject matter typical of true crime stories, so you can avoid potentially costly or time-consuming changes later on in production. For starters, remember:

  • Just because you’re covering a high-profile case receiving attention across the media, and another media company (or five or ten) said something, it doesn’t mean it’s true. You generally won’t be protected from liability for defamation merely because you’re re-releasing information or materials first published by another source.
  • So too can copyright infringement liability arise from republication. Another project’s use of third-party material does not necessarily mean you’re free to use it, too.
  • If you’re digging back into a cold case, tread carefully when raising new facts and allegations, even against people implicated but never charged or convicted when the trail was still hot.

Be especially careful with secondary and tertiary figures in the story – in many cases, these minor figures are the ones who complain if they are portrayed in a negative light.

(3) Be creative (but not irresponsible!) with your advertising and promotional strategies.

It’s common for ads promoting a podcast to include snippets of statements and materials from one or more episodes in the series. In the promotional context, however, editing for duration and the addition of music or other sounds and materials can change the meaning or implication of a statement. In this way, you should be careful when promoting high-risk material and you may want to consult a lawyer to separately vet all marketing and advertising.

Similarly, additional copyright issues could arise if you’re using third-party copyrighted materials in the podcast and you want to use some of those materials in advertising. Do not assume the use in an ad is likely to qualify as fair use just because the use in the episode itself may be. The same considerations in the context of the content of the podcast do not necessarily apply to advertising for the series.

Finally, be careful what you agree to when entering sponsorship or other advertising deals. If a sponsor is asking for the right to use material from your story – including the names of individuals or snippets from episodes – to cross-promote their status as an official sponsor, be careful not to grant rights to use a person’s name and likeness that you do not have. A right of publicity claim could arise if you do.  

So be creative with promoting your hard-hitting story, but not so much so that you’re violating the law.

Fair Use in Gaming Content – FAQS For Creators

By Simon Pulman and Mikaela Gross

Fair use is one of the most important – and most misunderstood – concepts in the area of copyright law. It is an important concept for anyone who is using content owned by third parties – which includes anyone who livestreams gaming, creates “let’s play” videos or otherwise uses gaming assets and branding. Unfortunately, there is a lot of misinformation on the internet and thus creators are often unclear about their rights and responsibilities.

With that said, here are answers to some frequently asked questions for creators:

What is Fair Use?

Fair use is an exception to the general principle that unauthorized use of a copyrighted work is copyright infringement. Simply put, if a claim of copyright infringement is brought against a defendant, the “defendant” can try to demonstrate they made a fair use of the allegedly infringed work in order to prevail in the case.

Because fair use is a defense, only a court can say whether a particular use of copyrighted material is a “fair use.” However, experienced attorneys can provide an opinion, based on their evaluation of the use using the four-factor test (see below) and their knowledge of case law.

What are the Four Factors?

Courts look at four factors when making a fair use determination

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

The application of these four factors is nuanced and often complicated, but in short, the use of a copyrighted work is not likely to be fair use if it is used for the same or a similar purpose for which it was originally intended or in advertising/marketing materials, uses a lot of the original work including its most important parts (what the courts have called “the heart of the work”), and/or is used in a manner that competes with the market for the original work. It is more likely to be fair use if the new use is “transformative” in that it comments on, critiques, or otherwise adds new meaning to the original work in some way, if only a small portion of the original work is used (i.e., only enough for the user to make their point), and if the original work is not being used to advertise or otherwise promote the new work or use. So, if a video talks about, for example, loot box mechanics or the historical treatment of race in gaming by using game clips as examples, commenting on and analyzing those clips, it is probably more likely from a legal perspective to be fair use than straight game footage.

Note, however, that there is no bright line amount of use that constitutes fair use. For example, you can never assume that “if you use less than 5%, that’s fair use” – courts have found using only a line or two of text or music to be infringing. If you are in doubt, you should speak to a lawyer.

Is Crediting Important?

It’s nice, and may be considered best practices or industry custom, but it’s generally not relevant for a legal determination of fair use.

Can’t I Use a Disclaimer?

In short, no. Those disclaimers that you see on YouTube stating “This is a fair use. No copyright infringement intended” are generally not legally relevant. There is a small chance that they could be helpful to you in determining the damages that you owe in the event that you are found to be infringing, however, because they may bear on whether your intent was “innocent” or “willful.”

What if I get a DMCA takedown notice? And if a website removes my video, do I have any recourse?

The DMCA notice and takedown process provides copyright owners with a way to request removal of their copyrighted work from a website or other internet service if they believe the use infringes their copyright. To benefit from the “safe harbor” from copyright infringement the DMCA provides ISPs, the website or platform must designate a registered agent to receive and process DMCA takedown notices.  DMCA notices must include certain specific information to comply with the law, and the registered agent of the ISP has the job of reviewing and determining whether to comply with the takedown request.

An ISP, such as a platform that hosts gaming content, does not have to comply with a DMCA notice if the notice does not fully comply with the legal requirements for a takedown notice. However, if an ISP does remove content following receipt of a DMCA notice, it must also promptly notify the party that posted the video. That party then can file a counternotice if it believes the content was wrongfully taken down, for instance if the use of the copyrighted work is likely to be a fair use.

Whether you’re a platform looking to benefit from the protections of the DMCA safe harbor, or a content creator looking to correct an improper takedown of your video content, you should consult with an attorney to make sure you’re in compliance with the DMCA’s requirements, and are not taking any actions that could potentially subject you to liability down the line.

Will I Be Sued For My Videogame Videos?

This is where we have good news. Because video game publishers largely view streaming and game-related media to be helpful to their business (under the theory that exposing more people to the game will increase sales), publishers rarely bring copyright infringement lawsuits against gamers. The exceptions where publishers do bring legal action tend to arise in instances where users create new installments of games (what lawyers and courts would call “derivative works”) without authorization, insert other infringing material into games via mods, create and sell software “cheats,” or do something that is offensive in addition to being infringing (e.g., adding explicit or hateful material). In recent years, major players such as Take-Two Interactive and Epic Games have actively policed these types of infringements of their copyrighted games.

This means that it isn’t always necessary to apply the fair use analysis outlined above. However, those creators who are seeking to make heavy commercial use of game assets (other than solely streaming/YouTube video revenue) should consult with an attorney before embarking on their plans to ensure compliance with copyright law.

One of the greatest challenges in defending claims of copyright infringement in the gaming space seems to be the wildcard of the judge’s expertise and understanding of the emerging fields of gaming and streaming. A key defense strategy will inevitably involve a careful framing of the discussion, including describing how the game works, what the purpose of the video is, explaining the meaning of common terms, and the context and communities in which these activities exist online.

Moreover, everyone should keep an eye on the risk factors listed below.

What Red Flags should I be aware of?

While the use of gaming footage in the form of livestreaming and “let’s play” type videos rarely results in a claim, there are a number of uses that creators should be particularly cautious about:

  • Licensed music: Any game video that features licensed popular music is more likely to cause an issue with the game creators and/or the owners of the rights in the music being used. Creators are generally fine with exhibiting those videos on YouTube (which has a blanket license with multiple labels), but uses of music in other contexts or on other sites could trigger a DMCA takedown or a copyright infringement claim.
  • Choreography: Any videos that use choreography or dance moves tend to pose a higher risk. There has been a spate of recent choreography-related claims alleging that games have made unauthorized use of protected dance moves, in particular against Epic Games for the use of short animations in its game Fortnite. Choreography is probably an overlooked area (versus other areas of copyright risk) and thus it is not a fait accompli that the game publisher will have secured the rights, so a video creator could be pulled into a potential lawsuit. Obviously dance-focused games are highest risk, but other games that include “celebration dances” are also a risk. While many recent choreography-related claims have failed because copyright law does not protect simple routines or common social dances, they are nonetheless costly to defend and could become increasingly risky as the law develops in this area.
  • Street Art and Tags:  Videos that include any kind of pre-existing graffiti or tags, or even original designs that closely resemble a pre-existing artwork, are similarly susceptible to a copyright infringement claim. Street artists have become notorious copyright infringement plaintiffs in recent years, and like choreography, game creators may not have cleared the rights to these works. The unauthorized use of graffiti may also raise trademark and right of publicity claims, depending on the context in which the tag is used.  
  • Athletes and other Identifiable Real People: Any gaming footage that includes the recognizable likenesses of real people (e.g., sports games) is susceptible to a claim. This is not actually a copyright issue, but rather falls under what lawyers call “right of publicity” (i.e., a person’s exclusive right to make commercial use of their name [or alias], likeness and other identifiable features). User-generated content that inserts a real person into a game via a mod could also trigger a claim of this type, particularly from celebrities who regularly monetize their names and likenesses.

The de Havilland v. FX Networks, LLC Appeal: Round 2 Goes to FX

On Monday a California appeals court handed down a decision in the closely watched case of de Havilland v. FX Networks, LLC et al., triggering a collective sigh of relief from studios, networks, and other content producers. The court’s decision reaffirms two widely recognized principles: (1) that the First Amendment’s protection of creative works is not limited by the mere fact that a work generates income, and (2) that an individual cannot censor the way in which she is depicted in a creative work merely because she does not like that depiction.

These principles, as applied to the entertainment industry, have been challenged in recent years with a wave of cases such as de Havilland.  For instance, a case in New York, Porco v. Lifetime Entertainment Services, LLC, was allowed to proceed after an appellate court held that the newsworthiness exception to New York’s statutory right of publicity did not apply to a docudrama that substantially fictionalized the life story of a real person.  The court stated that such a work was “mainly a product of the imagination” and thus “nothing more than [an] attempt[] to trade on the persona of the plaintiff.” Continue reading

In Case of First Impression, Third Circuit Says that Claim for Joint Authorship Accrues Upon “Express Repudiation”

Court finds that where a claimant should have known that an alleged co-author asserts sole ownership of copyright rights, the statute of limitations on the claim starts to run.

A recent decision from the U.S. Court of Appeals for the Third Circuit clarifies when the countdown starts for authors hoping to bring a declaratory judgment claim for joint authorship under the Copyright Act.  In Brownstein v. Lindsay, the Third Circuit held that an authorship claim arises and accrues when a plaintiff’s status as an author under copyright law has been “expressly repudiated” by a defendant, thus triggering the applicable three-year statute of limitations to assert a claim.  The decision also confirms the district courts’ lack of inherent power to cancel copyright registrations on their own accord.  Continue reading

Kenneth N. Swezey to Moderate Book Expo Panel on Digital Publishing & Transmedia Storytelling: Deals, Rights and Revenue

CDAS Partner Kenneth N. Swezey will moderate a panel on digital rights and new publishing business models at Book Expo America next Wednesday, May 29th. The panelists will be Corinne Helman of Harper Collins, Miriam Goderich of Dystel & Goderich Literary Management and Jeff Gomez, CEO of Starlight Runner Entertainment. Continue reading

Too Much Trademark “Melodrama”: Court Sanctions Author for Fraudulently Registering Book Publisher’s Trademark . . . and Then Using the Registration to Claim Publisher Is a Trademark Infringer

Southern District Grants Melodrama Publishing’s Pleading-Stage Request to Cancel Author’s Registration

The burden of showing fraud in a trademark filing is ever-evolving but always high. A similarly high standard applies when it comes to meeting the “exceptional case” requirement for an award of attorneys’ fees for the prevailing party. Nevertheless, some cases involve such obvious wrongdoing that the burdens can be met before discovery even opens. This is one of those cases. Continue reading

Kirtsaeng v. John Wiley & Sons: Supreme Court Applies First Sale Doctrine to Foreign-published Books Despite Publisher’s Geographic Import Restrictions

Court adopts policy of international exhaustion

In the recent case of Kirtsaeng v. John Wiley & Sons, the Supreme Court held that the first sale doctrine, codified in Section 109(a) of the Copyright Act, applies to copyrighted works manufactured overseas. Kirtsaeng, a Thai national studying mathematics in the United States, made himself thousands of dollars reselling textbooks on eBay that had been manufactured by Wiley’s Asian subsidiary and shipped to him by family and friends. Although the English-language Thai editions were nearly identical to their American counterparts, Wiley had priced them differently, as economic conditions and demand for academic textbooks vary in different territories. While this sort of activity is undoubtedly legitimate (and the underpinning of robust businesses) if it’s done entirely within the United States, the statutory text is, in the words of the Second Circuit, “simply unclear” and “utterly ambiguous” when you consider works produced abroad that are imported and resold domestically. Proponents of differential pricing argue that their ability to serve poorer territories with low cost, lower quality publications is subsidized by the sale of higher quality books where the market will allow it, whereas critics emphasize the importance of consumers’ freedom of choice and argue that differential pricing is not an exclusive right of copyright holders. Continue reading

Central Park Five: Judge Blocks City’s Subpoena

Ken Burns Film Not Required to Produce Footage and Outtakes

Renowned documentary filmmaker Ken Burns and his film company, Florentine Films, won a significant legal victory recently as a Magistrate Judge ruled that they do not have to produce unused material from his documentary The Central Park Five to New York City. On February 19, 2013, Magistrate Judge Ronald Ellis ruled that Burns and Florentine are protected by the reporter’s privilege. Continue reading

CDAS Client Katherine Applegate Wins Newbery Medal for Outstanding Children’s Book

Our whole firm joins CDAS partner J. Stephen Sheppard in congratulating our client Katherine Applegate on winning the Newbery Medal for her novel “The One and Only Ivan,” published by Katherine Tegen Books, an imprint of HarperCollins Children’s Books. Regarded as one of the most prestigious awards in publishing, the Newbery Medal is awarded annually to the most outstanding children’s book published in the preceding year. Continue reading

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