Can Students Use Copyrighted Music Their Journalism Podcasts or Videos? An Expert from the SPLC Weighs In

I reached out to the Student Press Law Center recently about a copyright question. As always, the Center replied promptly and even allowed me to reprint the exchange we had below. Hope it helps.

Question Submitted on the SPLC website’s hotline help form:

My question today deals with music. I had a kid who came from Carmel High School and transfered to my school. Carmel has a radio station. FHN does not. He’s got a podcast here he did where he talked with a coach about music and they played some parts of songs and then talked about those parts.

You can see the full interview here. The first segment with music runs from 1:35-5:05 – https://soundcloud.com/whje-carmel/litodesertislanddiscsfinal-mixdown?si=1c0e56b9aaf042b9b0d66608bb628ba8&utm_source=clipboard&utm_medium=text&utm_campaign=social_sharing

My question is this: is it ever ok to use full songs like this if you’re reviewing them or talking about them or could one use excerpts legally in podcasts and such if they are talking about the music rather than just putting their favorite playlist together? Hope that makes sense. I just always have kids wanting to do things with music and use clips or songs and my memory says they can’t use anything but maybe it’s different if they are reviewing or critiquing it or if it’s part of a larger conversation about songs and music. Thanks so much for any insight you can give. Appreciate you all and always make sure our program and team donates when the hat is passed at the JEA/NSPA national conventions.

Answer provided by Ellen Goodrich, SPLC Legal Fellow:

Yes you nailed it! Fair use law allows you to use portions of music when you are reviewing or critiquing it. Little portions can also be used exactly how your student did, where he included a portion of the song that the coach being interviewed talked about using to motivate his players.

Fair use law looks at four factors to determine if someone is making a legally permissible use of a copyrighted work. The four factors are: (1) purpose and character of the work, (2) nature of the copyrighted work, (3) amount and substantiality used, and (4) effect on the potential market. The statute gives some examples of fair uses, such as criticism or commentary.

In the music context, this usually allows for people to play portions of the song when commenting on them or in a larger conversation about music. For example, if they were talking about how Taylor Swift’s music has changed over time, they could use a clip from her debut album and clips from her albums throughout the years to show how her genre has changed. Similarly, if they wanted to, they could use a clip from any song if they were giving a review of it. They can also use a portion of a song if, for example, they were talking to a student athlete who stated that a certain song is on their hype playlist and they cut in a portion of the song during the interview.

One thing I would shy away from is using the entire song without any commentary. The key part of fair use is that you are changing the nature of the original work, which is called making a transformative use. When you are using it to supplement your reviews or criticism, you are including it for the purpose of explaining your criticism and giving the audience a better understanding of the critique or praise being offered. However, if you are just playing the entire song in your broadcast, there is a weaker argument that you had any other purpose than to share the song.

I had a couple follow-up questions as well:

Thank you so much for that. Can’t tell you how much I appreciate it. Two followups if I may and then I promise I’ll be done. 🙂

1) If a student is doing a video game review and wants to use some of the game’s music in the background of the video he/she is making, is that ok?

2) Also, if someone took a 15-second snippet of the video game music and then used a tool to remix it into a 90-second clip (meaning they made a derivation of the original soundbite), could that be used?

Answer provided by Ellen Goodrich, SPLC Legal Fellow:

For the video game review, yes that should be fine! To be extra safe, you could just put the clip of the song in the beginning or end of the review. I wouldn’t use the entire soundtrack or anything. 

The same is true for the video game remix. As long as it is not just the 15 seconds playing on a loop, I think it would be okay.