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This is my review of Audacity, a piece of software that I use constantly and have come to rely on it’s stability and performance.

Audacity is a free, open source audio editor that supports Windows, Mac, and Linux. It is good for performing basic audio editing and format transfers in a way that many beginners find it easy to adjust to and learn.

I find myself using Audacity instead of a purchased software package for the all of my audio needs, and if you are creating a podcast, you may do this as well. First, I use it to record audio from a microphone or from some other source, like a tape deck or CD Player. Then, when I record vocals, I can edit the mistakes out, remove unwanted noise and pops between sentences, and create a mix of the best tracks for my final compilation.

Sometimes I apply a few simple audio effects, like a compressor, to even out any peaks in the sound or the pitch effect, to change my voice and make it deeper to sound like a different person. The effects seem alright, but they are best, only average. The biggest downside for me here is that effects can only be applied one way, destructively, which means you permanently change the audio when you effect it. You can not go back later and turn a compressor off or tweak an EQ or remove the pitch back to normal, again the way you can in more advanced, purchased packages. Of course, saving your original, unedited version will allow you to at least, start over again.

I can use Audacity to bring in music, create intros and outros, and use sound effects, and then convert my finished project to MP3 format for publishing. When saving as an MP3, I can preset the ID3 tags so that my file is ready for iTunes and other publishing platforms. Sometimes, I also import audio files that are giving me issues, and view their waveforms to see if there are any clues as to what the problem might be, so that I can correct the issue and resave the file.

Audacity can record and edit 16-bit, 24-bit, and 32-bit (floating point) samples, and up to 96 KHz. sample rate. Audacity is compatible with a wide range of formats such as WAV, MP3, AIFF, and others. What this means is that although some of it’s tools are simplistic, Audacity’s audio quality is not second rate; it performs up to professional standards like the more advanced packages do.

There are unlimited Undo and Redo options, and the only limit to the number of tracks you can edit and mix are the limits of your computer’s processor and RAM. The program comes with several installed effects, including one that can help remove vocals, remove static, hiss, hum, or other constant background noises. You can also load and use VST plug-ins with the add-on VST Enabler, which gives you access to the very big world world of free VST plug-ins online (although these will still be applied destructively).

Audacity is not made for complex music production. I wouldn’t use Audacity for using loops or multi-track recording. One reason is because the different tracks in the work panel are not truly synced together. Each time you overdub a previous track with another recording, the track you record will be slightly out of sync requiring you to fix this during your pre-processing.

This is not really a big deal for most podcasts, where you can slide elements around, and it’s not that important to have them perfectly in sync. However, for multi-track music, this is a big problem.

Although it is not the end-all be-all of audio editors, Audacity has a simple tool set that works well, and many people decide to stay with it because it works for them. For those ready to take a step up to a more powerful audio editor, Adobe’s Audition offers tremendous power and flexibility, which has earned it the top spot among radio stations and professional podcasters everywhere.

But many podcasters don’t need Audition’s power. For them, Audacity fills a niche for quality, free software from a trustworthy source, and I’m sure it enables many people to start podcasting who otherwise wouldn’t or couldn’t. And of course, at a price that everyone can afford!

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On our last episode, we began discussing this topic, Podcasting/Videocasting Legalities and due to technical issues (as explained in an earlier post) we will cover this topic completely tonight.

As I explained earlier, this topic came about because of a discussion with an individual (who I will not name) that was interested in playing copyrighted material and licensed material on a live video stream using uStream.tv. He had been told by another individual that as long as he didn’t record it, only broadcast it, that he didn’t need any licensing or other considerations in order to play licensed music on a live video stream.

After much research, here is what I found out:

I put this question on Performancing.com’s Legal Forum on August 15th, 2008. Here is what the reply was on August 16th, 2008:

My question concerns the playing of licensed/copyrighted music on live video services like uStream.TV. I’ve been told that live video streaming does not fall under the music licensing laws, but it would seem to me, that the laws would apply to this venue as it does with audio podcasting. Also, does it matter whether the live stream is being recorded or just broadcasted (without recording the actual stream for archiving purposes). Thank you in advance.

It’s a surprisingly difficult question for two different reasons. First, much of the matter will depend on the exact nature of the use and the role the music plays. Second, this really is not a settled area of copyright law.

So the first question is how are you using the music? Is it going to be just in the background while you talk or have other video showing? Will you be using just some or all of the song?

If you use the song in a manner that could support a fair use defense, the issue of legality over streaming media is moot.

On that note though, the courts really have not addressed the issue of streaming video, such as UStream. The closest things currently on the books are podcasting, which you mentioned, and YouTube. However, in both cases, using copyrighted music in a way that goes beyond fair use is an infringement, unless you have a license to use the work.

With podcasting, as you know, there is a compulsory license that means podcasters pay for every track they play. Youtube has no such system but allegedly infringing works are removed regularly and are the subject of lawsuits against the site.

As for your issue about streaming vs. recording, in the current legal climate, it makes little difference. The reason is that courts have recently ruled that even copying something to RAM, something necessary to stream a video, can constitute an infringement.

Though that may be overturned soon, that is where we sit as of this writing.

My advice here is the same as everywhere else, do not use copyrighted work without either a license or a clear fair use defense.

I am not an attorney, but I think that is sound advice.

Jonathan Bailey – plagiarismtoday.com

Creative Commons, a site where you can license your own work easily and for free, has a complete Podcasters Legal Guide where you can find most of this information I am about to give you.

When creating your own podcast, it is important to make sure all necessary rights and permissions are secured for the material included in your podcasts. This is relatively easy if you create all of the material that is included in your podcast but can become progressively more complex the more you include material created by other people. If you do not obtain the necessary rights and permissions, you may get into legal trouble for incorporating third party material into your podcast and for also authorizing others to use that material as part of your podcast.

The main legal issues that you will likely face that are unique to podcasters are related to copyright, publicity rights and trademark issues.

Podcasters share similar concerns to bloggers in relation to defamation, privacy, reporter’s privilege, media access, election and labor laws and adult materials.

Why Is Copyright Law Relevant?

Copyright law is relevant to podcasts because it applies to creative and expressive works, which are most of the things that are included in a podcast. This includes, for example, performances, scripts, interviews, musical works and sound recordings. Under current US copyright law, copyright attaches automatically to creative, expressive works once they have been “fixed”, i.e. written down or recorded.

Copyright law gives the owner of copyright the exclusive right to control certain activities in relation to the work. For example, under US law, a copyright owner can control whether another person makes a copy of their work, makes changes to their work, distributes it to the public or makes a public performance of it. Consequently, any person other than the copyright owner who wishes to do any of the protected acts in relation to the work must secure permission from the copyright owner before doing so, unless an exception or exclusion applies.

When you make a podcast, you potentially invoke several of copyright’s exclusive rights, such as:

* Copying the work to include it into a podcast;
* Adapting or changing the work to include it into the podcast;
* Making a work available as part of a podcast for transmission to members of the public;
* Authorizing members of the public to make a copy of the podcast and use it according to the terms you apply to the podcast.

Why Are Publicity Rights Relevant?

Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. These rights are relevant to podcasting because, in many instances, a podcaster will conduct audio or video interviews, perform plays, sing songs, and produce all sorts of other spoken or visual content. When transmitting this sort of content, including the voices or images of anyone other than yourself, you may need to get permission from those individuals if you are using their voice or images for commercial purposes. For example, if you have images from an interview with someone on your podcast and you use those images to promote your podcast, solicit advertising, or make other commercial uses, you may need consent from the individual appearing in the image.

How Is Trademark Law Relevant?

Trademark law is designed to protect consumers from being misled or deceived as to the source of goods and services, or the endorsement, sponsorship or affiliation of one good or service with another. In other words, trademark law works to ensure that you can rely on particular branding to equate to certain product features. So for example, Joe Citizen cannot use the name CNN and apply it in such a way as to suggest that his podcasts come from CNN, or are endorsed by or affiliated with CNN.

While there may be little risk that you are going to use someone else’s trademark to associate with your podcast (’cause you want to establish your own reputation, right?), trademark law can be implicated in what you do and say in relation to your podcast in other ways. Because you may want to comment on a high-profile company or their branding, you should have some familiarity with trademark law so that you can minimize your risk of infringing trademark rights.

Copyright Issues.
Using Written Content Created By Someone Else: Permission Is Generally Required.

As a general rule, if you incorporate text that has been written by someone else into your podcast-text that appears either on a blog, in a book, a journal, magazine or newspaper (or wherever)-you will need the express and specific permission of the person who owns copyright in that material (note that sometimes the copyright owner is different to the original writer).

Written works do not have to be full of flourish and artistic merit, like novels and poetry, to qualify for copyright protection. Textual works only need have minimal creativity to attract copyright protection; so, most textual works that are committed to paper (or computer), including those that lack literary merit such as, for example, institutional reports, newspaper articles and unimaginative blog postings, are likely to be protected by copyright.

There is no firm “rule” about how much of a work you may or may not copy to avoid infringement concerns. For example, it does not matter if you read the entire piece aloud without changing it or if you change it a lot and simply base your podcast loosely on the text-you cannot avoid copyright issues by, for example, changing the work by, say, 10% or 20%. Once you use the work, either in verbatim or altered format, you implicate copyright law.

Consequently, you need to think about copyright issues before you incorporate any of these materials into your podcast. In general, this means that you need to identify the copyright owner and ask them for permission to include their material in your podcast. You can often identify who the copyright owner is by checking for a copyright notice (usually in the form “© [year] [name]”) or you can ask the person who made the work available for the information.

The Good News: 5 Instances Where Permission Is Not Required.

The good news is that you do not need to secure the separate permission of the provider of a work in five main instances.

You Are Using A Fact, An Idea, A Theory Or Slogan, Title Or Short Phrase.

Although an entire textual work may be protected by copyright, there are elements of that work that may not be subject to the exclusive rights of the copyright owner.

It is a general principle of copyright law that copyright does not extend to ideas; that copyright law only protects the creative expression. As a result, you can discuss the ideas and theories that are discussed in a blog, an editorial or other opinion piece without asking the permission of the author or publisher (although you may want to think about defamation laws before you engage in especially harsh criticism of a theory or an author). Also, titles and short phrases or slogans will generally not be protected by copyright because they lack the necessary spark of creativity and so can typically be used without special permission. (But these items may receive trademark protection).

Finally, an idea is not protected by copyright. This is addressed by the Copyright Act which expressly excludes any “idea procedure, process, system, method of operation, concept, principle, or discovery regardless of form in which it is described, explained, illustrated, or embodied” from protection. This rule (called the “idea-expression distinction”) means, for example, that you can include in your podcast a discussion of factual events reported in a newspaper-such as facts about historical or current events-without obtaining permission from the copyright owner of the newspaper. It also means you could describe and discuss cooking recipes in your podcast, because they do not generally receive copyright protection. Recipes (the mere list of ingredients and instructions for combining the ingredients to achieve an end product) are seen as “a system, process or method of operation”. In practice, the distinction is often difficult to know. As the Copyright Office’s notes: “Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.”

You Are Using Works That Are In The Public Domain.

You can use any work that is in the public domain without obtaining permission of the original author or copyright owner.

A work is in the public domain in the US either when (a) the copyright term has expired or if copyright protection for that work was not maintained in the manner required prior to 1989, (b) the work is an unpublished work and special rules indicate it has fallen into the public domain, or (c) the author or copyright owner dedicated the work to the public domain.

You Are Using A US Government Work.

Works that are created by a US government employee or officer, as part of their official duties, are not protected by copyright. Similarly, federal and state statutes and judicial opinions are not protected by copyright. However, this extends only to federal officials and also, only to employees. This means that works created by state and local officials are usually copyright-protected and similarly, material created by private persons who are commissioned by the US government to prepare a work may be protected by copyright.

If you do incorporate government works into your podcast, you should also consider including in any copyright notice that accompanies the podcast a statement that identifies which portions of your podcast are protected by copyright and which are US government works. This is important for several reasons: (1) it allows people to know which works they can freely use and repurpose; (2) it removes the ability, if you bring an action against someone for infringement, for that person to argue that they did not have proper notice of the copyrighted status of your work.

You Are Making A “Fair Use.”

You may make a “fair use” of a copyrighted text without obtaining permission of the copyright owner.

Fair Use Under Copyright Law And Its Application To Podcasts.

A “fair use” is copying any protected material (texts, sounds, images, etc.) for a limited and “transformative” purpose, like criticizing, commenting, parodying, news reporting, teaching the copyrighted work. Under the US copyright laws, fair use “is not an infringement of copyright.” Judges typically consider four factors that are set forth in the Copyright Act. These factors are non-exclusive, so judges are permitted to consider other facts in addition to these. However, in the vast majority of cases, courts limit their analysis to these factors:

* the purpose and character of your use (this is sometimes called the “transformative factor”);
* the nature of the copyrighted work (e.g., is the work highly creative fiction warranting broader protection, or is it highly factual warranting narrower protection?);
* the amount and substantiality of the portion taken, (as compared both to the underlying work and the work in which the copying is used); and
* the effect of the use upon the potential market (e.g., did the copyrighted work lose market share or potential market share?).

In addition, some commentators refer to a “fifth fair use factor” which hinges on good faith — whether your conduct might be considered “morally offensive,” Judges and juries are human, and their decisions can be swayed by whether they think you are a “good or bad” actor.

Two Misconceptions About Fair Use.

(a) Acknowledgement Is Not Enough. Some authors have the erroneous belief that an acknowledgement will immunize a copyright infringement as “fair use.” This is a myth. Including an acknowledgement may be considered in analyzing the four statutory factors, but it is by no means is a clear defense to a claim of infringement.

(b) Disclaimers Are Not Enough Either. Another point of confusion is whether an upfront disclaimer that denies any association between the podcast and the copyrighted material can protect the podcaster from liability. For example, assume your podcast is a parody of “The OC” television show. You include a disclaimer at the beginning of your podcast in which you state: “This podcast is not associated with or endorsed by Fox Television.” This sort of disclaimer will not, by itself, protect you from a claim of copyright infringement, or act as a clear defense to such a claim. It will, however, be considered among the factors the court considers, and in a very close case, a court may look positively on a clear statement of disassociation. (Note, however, that including a clear disclaimer can help with potential trademark infringement situations.

Examples Of Fair Use That May Apply In Podcasting.

To help illustrate the way these factors may play out in the podcasting context, it may help to consider a few examples:

* Example 1: A book group organized by a high school teacher podcasts its meeting discussing J.D. Salinger’s Catcher In The Rye. The members discuss the book, read short portions of it aloud, and criticize and comment on the author’s style, the storylines, and the like. The podcast is posted on the book group’s blog site, which is hosted by the high school. The site includes no advertising and generates no revenue. Conclusion: This would likely be a fair use.

* Example 2: A podcaster uses the copyrighted music of pianist George Winston for the intros and outros of her podcast that is about yoga and meditation. The podcast has nothing to do with commenting or critiquing the music played. Conclusion: This is likely not a fair use.

* Example 3: A 10-minute podcast includes a group of music fans discussing a recent copyrighted article in Rolling Stone magazine about a new band. One fan reads 4 paragraphs of the 6-paragraph article and comments on its analysis of the band. Another fan plays a 1-minute segment of the band’s copyrighted song, which is 2 minutes in length. The fan then discusses the music as it compares to other music in the genre. The fans post the podcast on a fan website where advertising is sold, and the fans receive revenue for their podcast. Conclusion: This commentary/criticism by the fans in response to the article and song suggests a “fair use”, but the commercial/profit aspect of the site where the podcast is being distributed raises concern, as does the amount of the article and song taken in comparison to their overall length. Any negative effect on Rolling Stone magazine’s market or the band’s market for its music could cut against the fair use argument, though the podcasters might argue that the podcast promotes the Rolling Stone magazine article and band’s song, and that it is not a replacement for either (of course, this would likely be costly and difficult to prove in a trial setting). Given the flexible application of the fair use doctrine, and that the burden lies on the podcaster to prove fair use, podcasters in this situation could be found to infringe.

4.2.1 Motion Media

Up to 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of a multimedia project.

4.2.2 Text Material

Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material may be reproduced or otherwise incorporated as part of a multimedia project created under Section 2 of these guidelines. An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used. For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used.

4.2.3 Music, Lyrics, and Music Video

Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in copies, or audio or audiovisual works, may be reproduced or otherwise incorporated as a part of a multimedia project created under Section 2. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work.

4.2.4 Illustrations and Photographs

The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project.

You Are Using Creative Commons-Licensed Or “Podsafe” Content

Creative Commons’ licensed content is generally “podsafe” (i.e. is pre-cleared for use in podcasts) when your use is consistent with the applicable license terms.

Creative Commons’ licenses clearly signal to the public which uses you may make under the terms of the license and which uses require separate and specific permission is necessary. This means that it is important to check the terms of the applicable Creative Commons license to identify the relevant uses that are authorized in advance. Compliance with the terms of the Creative Commons license is necessary because otherwise the license terminates and then your use will become infringing.

If you use Creative Commons-licensed work in your podcast, you will need to provide attribution in the manner specified by the author and/or licensor. In addition, you must keep intact any copyright notices that accompany the work; include the title of the work; and, any Uniform Resource Indicator that is provided by the licensor which also includes copyright or licensing information about the work. You also need to retain a notice or URL for the license and the warranty disclaimer that applies to the work with each copy you make and distribute of it.

Using Your Own Written Content.

If you create your own creative, expressive material for use in your podcast, you should, as a general rule, have no issues in terms of copyright clearances. If you are the creator of a sufficiently original work, then you will generally also be the first owner of copyright in that work once you have committed pen to paper, hit “save” or “record” and thus, able to exercise any and all of copyright’s exclusive rights as you choose.

It is, however, important to be aware that there are circumstances in which, even though you are the creator of a copyrighted work, you are not the “author” or first owner of copyright. In the US, this split between first creator and first owner can generally occur in two instances: (i) if your work comes within the definition of being a “work for hire;” or (ii) if you sign an agreement transferring ownership rights to someone else. Additionally, you may not be the sole author or sole owner of copyright if you created a copyrighted work with someone else collaboratively.

Under US law, the first category of a “work for hire” is a work made in the circumstances of employment. As a general rule, an employer becomes the first owner of copyright in anything created by their employees so if you create your material as part of your job you need to consider whether you or your employer owns the copyright to the material you wish to include in your podcast.

In the US, there is an additional category of works made for hire that can apply to work created by non-employees. To qualify as one of these works for hire (outside of the employment relationship), the work must come within one of nine categories of works, be specially commissioned and be the subject of a written and signed agreement that the work is a work for hire.

Incorporating Pre-Existing Audio Voice Recordings.

If you wish to incorporate pre-existing audio voice recordings that have been prepared by someone else, you need to think about both copyright and publicity rights issues. In at least California, you also need to consider the property interest in appropriating someone’s voice.

As regards the copyright issues, in audio voice recordings there are generally two copyrights-one in the work being recorded (generally referred to as the “underlying work”) such as the text, script or performance and one in the actual recording, the fixation of sounds. To use an audio voice recording created by someone else, you need to make sure you have the necessary permissions to use both if you want to include it in your podcast. So for example, if the recording is Creative Commons licensed, you need to ensure that the license applies to both the underlying work and the recording.

Copyright protection of the recording as a general rule means that a person cannot, without the express permission of the copyright owner, duplicate or rearrange the actual sounds that make up the recording. Even taking a small amount of the original sounds will implicate a copyright right; in the words of one recent appellate court decision: “get a license or do not sample.” Consequently, even minor reproduction or arrangements require express permission of the copyright owner.

Interviewing Someone Or Asking Someone To Join You In Conversation As Part Of Your Podcast

If you interview someone for your podcast, you need to consider both copyright and publicity rights issues.

As regards, copyright there may be two different owners of copyright in one interview – you as the interviewer and the interviewee in their response to your questions -depending on how the interview is presented.

In general, an interviewee will likely own copyright in their verbatim responses. As an interviewer, you will likely own copyright in your questions and any commentary you make during the interview and in any version you create of the interviewee’s conversation or any organization and arrangement of interview responses. As an interviewer, you may also own copyright in the overall compilation of an interview that incorporates different answers to multiple interviewees.

As an interviewer, you should make sure the interviewee agrees to the interview, your adaptation of their responses (assuming you intend to adapt them) and to the inclusion of their responses in your podcast and the circulation of your podcast on the terms you choose. In many interview scenarios, you may have an implied license to use the materials, but it safest to get your interviewee’s written consent or (at minimum) record the interviewee’s verbal consent before you use the interview in your podcasts.

Using Music

Using music in your podcast opens up many specific copyright issues that we will address in this section. If the music you use is created by someone else and does no fall within one of the 5 types of content for which you don’t need permission, then these rules will apply to your use of that music.

To understand the complex web of copyright issues in relation to music, you need to understand four basic principles: (i) that two types of copyright protected works are incorporated in most pieces of music; (ii) that two types of rights attach to each of these works and attach in different ways; (iii) what kinds of licenses you may need to obtain and from which entities; and, (iv) when and whether your use of music can constitute a fair use. You can see why music needs its own section. This section is split into four parts.
Two Types Of Works Involved In A Copyrighted Song.

When you use copyrighted music in a podcast you are generally implicating two different types of copyrighted works: the musical composition and the sound recording. Although the practical distinction between these types of works is not obvious when you listen to a recording (i.e. when you listen to and use a piece of music, you are typically listening to and hearing both intertwined), it is nevertheless important because each of the two types of work is protected by its own copyright and is subject to its own rules. This means that a podcaster may need to approach multiple different rights holders just to obtain permission to use a single song.

First, however, it is worth taking a moment to explain the differences between the two types of copyright protected works that exist in most recorded music.

(a) Musical Composition. A copyright in a musical composition encompasses a song’s music and lyrics. It can be helpful to think of this work as what would appear in a sheet music arrangement of the song (the notes, score, markings, etc.). Copyright protects compositions from the moment a songwriter fixes the work in a tangible medium, such as writing the sheet music or by hitting “save” in a software program that creates music.

In practice, most songwriters do not retain the copyrights in their musical compositions, but instead assign the copyright to a publishing company – a business entity that specializes in commercially exploiting musical compositions. Most publishing companies, in turn, authorize collective rights management agencies to license and collect royalties for certain specific uses of their compositions. In the US, the Harry Fox Agency is typically authorized to issue so-called “mechanical licenses,” that is, the ability to reproduce and distribute the musical composition. The publishing company then also authorizes one of the performing rights organizations (e.g., ASCAP, BMI, or SESAC) to issue licenses for “non-dramatic public performances” of the composition (“non-dramatic” performances generally means performances other than for opera or musicals and would include broadcasts).

(b) Sound Recording. A copyright in the sound recording protects the recording of a musical composition as it was performed and recorded by an artist or group. Think of this work as what you would actually hear when you play your favorite CD: the singer’s voice, the sound of the musical instruments and all of the engineering that goes into making the recording. It is important to note, however, that federal copyright protection of sound recordings only attaches for recordings created after 1971.

Under state common law, copyright may attach to sound recordings created on February 15, 1972 or earlier. Use of pre-1972 sound recordings is subject to protection under state common law copyright. To determine who has the rights to a pre-February 15, 1972 sound recording and what rights they are entitled to exploit exclusively, you will need to look at the applicable state law — usually the law of the place where the recording was made.

As with musical compositions, the recording artist generally does not hold the sound recording copyright. Instead, whatever rights the artist has (and they are usually not copyright rights) are assigned to a record company in return for a share of the royalties from the sale and/or licensing of the sound recording. If you want to obtain permission to use someone else’s sound recording, however, you face a more complex situation than you do in relation to musical compositions and the permission you need to secure depends on how you are distributing the recording. For example: (1) no license is required to use a sound recording in an over-the-air radio broadcast; (2) digital transmissions that are considered non-interactive digital streams (in other words, listeners can’t pick the songs they hear) require permission from SoundExchange, a performing rights organization designated by the Copyright Office to collect and distribute statutory royalties to sound recording copyright owners and others; (3) digital transmissions that are considered interactive digital streams (such as an on-demand service where users can pick the songs), and digital downloads, require permission be obtained from the record company that owns the copyright in the sound recording.

Using Video/Images.

If you are interested in video podcasting, vlogging or otherwise including images or video with your podcast, you need to think about potential copyright issues and publicity issues.

As regards copyright, the issues that arise are similar to those that arise in relation to the use of text or music except that there are more of them because a greater number of copyrighted works may be included in an image or video. You need to isolate and think about each type of work that may be included in an image or video and identify whether you need to clear each of those works. For example, you will need to identify each piece of music you use and any still images or video footage created by other people and consider whether copyright applies and if so, whether your use requires the copyright owner’s permission or whether your use falls within an exception to copyright. Using music together with images in a video podcast also raises special licensing issues.

One final thing to consider that is not addressed above, although architects have no right (under copyright law) to prevent a public building from being photographed or sketched, you may want to think before including other artwork in your video or image collage and go through the exercise of identifying whether your use likely constitutes a fair use or whether separate permission is needed.

Publicity Rights Issues

A claim of right to publicity generally arises if you use another person’s image, likeness or voice in a podcast without their consent and for commercial purposes, which results in injury to the individual.

This means that if you use another image, likeness or voice as a way of advertising or soliciting your podcast, you will need the individual’s consent. First amendment (freedom of speech) rights allow uses of a public figure’s name or likeness so long as it is done (1) in a truthful way and (2) does not imply a false endorsement of you or your podcast by the public figure.

Right of publicity is governed by state law, which means that it can vary state to state. For example, in California, a plaintiff would need to show that your podcast (a) used the individual’s name, voice, signature, photograph, or likeness in your podcast (b) for purposes of advertising or selling, or soliciting, the podcast (or any other products or services), (c) without the individual’s consent. If the plaintiff proves her case, she is entitled to payment of damages (of at least $750), profits from the unauthorized use, and her attorney’s fees and costs.

The good news is that that law in California includes an important exception to the general rule that consent is required. In situations where the name, voice, signature, photograph or likeness of an individual is used “in connection with any news, public affairs, or sports broadcast or accounts, or any political campaign,” consent is not required. So, to the extent your podcast can be construed as “news, public affairs, or sports broadcast or accounts”, you do not need to obtain consent of the individuals. The language of this section is deliberately broad, so it is likely to apply equally to bloggers and podcasters as it would to traditional media, though this question has never been tested by California courts.

In California, if you use the name, voice, signature, photograph, or likeness of a “deceased personality” in your podcast, you still need to consider right of publicity issues. California law permits the heirs of that deceased personality to control the use of the personality for up to 70 years after the personality’s death.

Moreover, on a related note, in California, you need to consider risks associated with misappropriating the identity of a well-known celebrity.

Trademark Issues.
Infringement And Dilution.

Generally, you can violate a trademark in at least in two ways: by direct infringement, and by dilution.

Direct infringement occurs when you use someone else’s trademark (often a competitor’s trademark) in a way that is “likely to cause consumer confusion” as to the source, affiliation or sponsorship between you and the trademark owner. This might occur if you use a trademark to describe your podcast, and the trademark owner thinks that your podcast is sufficiently related to their product or service, that a listener might conclude that the podcast comes from or is endorsed by the trademark owner, when that is not the case. For example, if you named your music-review podcast “The Rolling Stone Music Hour”, you may find that Rolling Stone magazine will be unhappy with you and perhaps send you a cease and desist letter (among other possible unpleasant things). If however, your podcast had to do with gardening instead of music (e.g., Rolling Stone Gardening Hour), your risk of infringement would be much smaller, because listeners are unlikely to think that the well-known music magazine was sponsoring your gardening-related podcast.

Dilution can occur if the character of the trademark becomes clouded by an unwanted association, either through tarnishment, which occurs when a famous mark is used to promote a product that is considered offensive (e.g., the mark “DISNEYLAND” being used to market an X-rated podcast), or through blurring, which means the use of a famous trademark causes consumers to blur the two companies in their minds (e.g., naming your podcast the “Nike Hemorrhoid Discussion Group”). In a dilution claim, a trademark owner must prove actual dilution, not merely the likelihood of dilution. Note that dilution does not occur from a “nominative” or informational use of a trademark, such as a critical review or what is known as a “descriptive” use of a trademark (i.e., using it in a sentence to discuss Nike). But even if consumers are not at all confused about the source, a trademark owner can have a claim for dilution.
When Do I Need Permission?

Generally you do not need permission to make an informational (also called “editorial” or “nominative”) use of a trademark. You also do not need permission if you’re making a comparative advertisement (however, comparative ad situations often provoke trademark owners into legal action even when their trademark claims are weak especially if your statements about their product and your claims regarding your product are not wholly accurate). You will need permission if you’re making a commercial use of the mark.

You may also identify the trademark of another (such as your employer or former employer) if the reference is accurate and does not cause confusion. For example, “I am Sobert Roble, and I work for SicroMoft” is acceptable if the context does not falsely suggest that the employer (here, SicroMoft) endorses the podcast. But using a title for a podcast such as “SicroMoft’s Sobert Roble Speaks Out On The Issues” may suggest endorsement by the employer, and should therefore be avoided if that is not the case.

One other thing to remember is that you are not under an obligation to identify each and every trademark as a “registered” trademark. You can even use a trademark in the title of your podcast as long as it is not the title of series of podcasts. So, for example, you can title a single podcast “TRADEMARK ATTRIBUTION FOR DUMMIES” and not violate the trademark in the “For Dummies” books.

A Note About Using Trademark Disclaimers.

If you use a trademark in a commercial context in your podcast, it is a good practice to include a reference to registered trademarks of others in your show notes (if you have them) as well as in the podcast itself. A statement along these lines would suffice:

“[YOUR TRADEMARK] is a trademark of [YOUR NAME]. All other trademarks mentioned are the property of their respective owners.”

You may also check with the company whose trademarks you reference and read its trademark use policy typically found on its website. While using a disclaimer does not immunize you or clear your rights to use a particular trademark in a commercial context, it can help to show your good faith.

Finding “Podsafe” Content To Include In Your Podcasts.

Finding good content to use in your podcast and individually negotiating permission to use it can be a time-consuming task and may also be daunting if you are unsure if the rights-holder will agree to authorize the use of their content in your podcast.

Popularity: 9% [?]

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Last week on Podcaster Training, we started discussing this topic, however, due to my Internet connectivity in Rhode Island and the technical issues with Stickam, I will restart this discussion this week and will do so on Talkshoe (no video this week) as an audio only show.

This topic came as a result of me being asked about the legalities surrounding playing copyrighted materials (music, podcasts, etc.) on live video streams such as uStream.tv. My interest was peaked when I was told that as long as you don’t record the video, you can play whatever you want. Well, that didn’t sound right to me, so I started researching this and came up with a complete show on the subject.

Now I am no lawyer by any stretch of the imagination, so anything you hear in this podcast (which comes complete with a disclaimer) is not to be taken and used as law. I’ll talk more about that tomorrow night.

In the meantime, if you are interested in hearing more about this topic or if you have first hand knowledge that you want to share, join us Friday Night at 8:00pm EST on Talkshoe Show ID 16829. I am broadcasting this on my live page as well at http://www.newmediapro.tv (again, audio only, no video this week) for those who might beusing my Live Page to catch the show.

See you tomorrow night on the show!

Popularity: 9% [?]

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First, I want to apologize to all my listeners and viewers. Tonight’s Podcaster Training Show was pre-empted by me losing my Internet connection a couple of times during the show. Then, Stickam had it’s own issues and kept dropping my connection.

After I lost my Internet connection the last time, I jumped onto the phone bridge via my cell phone and Jeff came back on, as did Bruce. Since I didn’t have a connection, Bruce offered to tweet my lack of being online for me. Jeff and I talked about our predicament and made a decision of which, I will get to in a moment.

I will be posting a complete writeup about my misadventures going video. That will be coming this week. In the meantime, the decision was made tonight, to cease the video shows until the services (uStream, Justin, Stickam and others) can come up to speed.

Beginning September 12th, 2008, Podcaster Training will return to Talkshoe (as I still have my accounts there) and will produce an audio only show. I will host the show along with Jeff Chandler as my Co-Host at 8:00pm EST, just like always.

We will pickup the Podcasting/Videocasting Legalities discussion and explain more about why we are returning to audio on Talkshoe.

I know this transition has been difficult for everyone, however, since part of what I do is try out new technologies and let you know how to use them, well, this is just part of what I do! I hope everyone will join us again on Friday and keep up with New Media, the Podcaster Training way!

Popularity: 5% [?]

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In my last two posts, I went over some of the history of how I got started and brought you up to speed with some of the basics as far as simple hardware that you probably already have so that you could start podcasting easily.

Today, I am going to outline the hardware I currently have that allows me to not only podcast, but videocast too!

Just a note here, I did not start out with all of this equipment. I have added it to my studio a little at a time and all of the equipment listed below has been funded by income from podcasting.

The Computer Equipment:

I use two PC’s in my studio, a Toshiba Notebook (1.8ghz CPU, 1.5gb RAM) and a Clone PC Desktop. I have two webcams, a standard webcam (hooked to the desktop PC) and a Digital Video Camera (hooked to my Notebook). I have three external hard drives (2 – 160gb and a 320gb) hooked to the Notebook. I have an Alesis MultiMix 8 USB Mixer hooked to the Notebook. I have a Shure SM-58 Microphone and headphones hooked to the Mixer and my main phone service is provided by MagicJack VOIP Phone Service.

The Software:

I use several pieces of software in my studio. ManyCam Virtual Webcam (for special effects while streaming), Audacity for audio editing and creation, Windows Movie Maker for video editing and WordPress Self Hosted Blogging Software for all of my blogs.

The Services:

I use uStream.TV for live, video streaming. I have a Deluxe Hosting Package from GoDaddy, so I host my own podcasts, videos, downloads, etc. Quality Conference Call is my provider for my free, 250 person phone bridge for calling into the show live.

If you haven’t noticed a pattern here, for the software and services, the main ingredient is, they are all free! (Except for the Deluxe Hosting Package, of course).

I guess my point here is, you don’t have to spend a lot of money in order to support this hobby and that this hobby can support itself when monetized properly.

Ok, now let’s talk a few minutes about producing a live, interactive video stream. It’s really not as difficult as you made believe. First, you will need to setup a free account at uStream.TV. Next, go to Quality Conference Call and setup a free account and get your free 250 person phone conference line. After that, make sure you have your uStream account, profile and show page setup the way you want. I have a great video series I will be posting here in the next few days that covers this for you (in case you need any help). Print out the instructions for your phone conference bridge (so you can have them handy when you need them) and go ahead and make a test call to the phone bridge and make sure you know how to login as a moderator and start the call. If you get the web based version (I think you should, it’s free too), login to the web based conference manager and make sure you know how to see how this works. The conference manager lets you see who (by their phone number) is coming onto the call and you have the options of muting, unmuting and dropping them from the call.

After you have mastered the phone bridge, go to uStream and hit the Broadcast Now button (usually found at the top of the page) and make sure uStream can see you camera and microphone. Now, unless you are using Skype to call into the phone bridge and you have your PC setup to broadcast the audio across the Internet, no one watching your stream will be able to hear the audio from the phone bridge. You could use a speaker phone, however, this might cause some echoing or feedback, so this is something that is not highly recommended. Since my audio goes through my USB Mixer and my phone service is VOIP, I can easily send the audio from the phone bridge across to uStream so everyone can benefit from the conversation.

Ok, once uStream can see your camera and mic, and you have mastered the phone bridge (or at least can get the call started), next, you will want to add something like Manycam to your setup and this will allow you to put text on the screen, funny effects, scrolling text and more. You could even put the phone number of your conference line on the screen for your viewers to calls you easily.

Now, schedule a time to produce your show, let your viewers know when it will be on, and make sure to go into uStream and use the scheduling tab so that your show can be put on their Guide and then get ready to start your show!

I know it sounds like a lot. But really, once you get the hang of it, it’s not realy that bad. You can watch me live, every Friday Night at 8:00pm EST by visiting http://www.newmediapro.tv (that’s my live page for my uStream channel) and I will take you through these steps and more on my Podcaster Training Show.

Ok, that’s all for today. But don’t worry, there is still more to come in this series. How much more? Who knows, keep watching this space to find out!

See you next time…

Popularity: 9% [?]

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Previously, I outlined what lead me to this transition. In this post, I will outline the equipment and software I am using to give you a better idea of just what you can do with very little outlay of cash.

As most of you are already aware, just by following my blog posts or listening to my shows and podcasts, I like the term “free”. But then, who doesn’t, right? Also, I don’t like paying retail for anything and will research and search high and low to get the best deals. That’s just who I am, when it comes right down to it.

Ok, that said, let’s get started!

To begin with, I already had the equipment and software in place when I made this jump to video. It wasn’t always that way. So, let’s go back in time a bit and I will bring you up to date on how I got started and then upgraded my way to what I have today.

When I first started podcasting, I had the plastic $5.00 desk mic that came with my PC. It was hooked into the mic port of my sound card and I used a set of headphones from my daughter’s cd player (the cd didn’t word any longer). The headphones were plugged into the speaker port of my sound card. Money out so far, $0.00 (unless you count the $20.00 I spent on the cd player in the first place). I had a decent Internet connection through Comcast and after searching for podcasting software, I started using the free audio editor, Audacity (I told you before, I like free!).

Ok, still very little money out since I already purchased the PC and was using it for other things, I don’t consider that in my scenario here. Ok, I now had everything in place to start recording podcasts. I then had to locate a host. There are several good podcast hosting services that are free and/or low cost. I chose one and started uploading my podcasts.

Alright, now as you can see, with very little money spent and using items you may already have, you can start podcasting. If you had to purchase a mic, you could go to a number of places and spend from $25.00 and up for a separate mic and headset or a headset with a mic.

Next, going video. Video podcasting or videocasting is a little more complicated. Even though some PC’s come with webcams now, yours may have not. You can purchase a decent webcam for as little as $16.00 and up to $199.00. Most digital camcorders have a function to act as a webcam, so if you own one, check to see if it does and you may already be set.

However, let’s step back just a moment here. Before I went video, I got into live, interactive podcasting. I was introduced to Talkshoe about two years ago. I started with my podcasting setup and didn’t have to layout any more money as this service is free and they host your podcasts for free as well. After listening to some of my recordings, I noticed I sounded tinny. This was due to my mic (remember, the $5.00 desk mic) so I went to Radio Shack and purchased a Shure SM58 and converter to plug in to my sound card. Replacing my mic gave me a more professional sound to both my podcasts and my live shows. I spent $49.00 for the mic.

I started a few more shows and was really getting into the live, interactive scene. I wanted to get more out of my experience by introducing audio into my live shows. I had been using the phone to call into Talkshoe (this made getting in easy) and I researched a little more and started using Gizmo Project and calling in via Talkshoe’s SIP Interface. Gizmo allowed me to play different WAV files and the listeners on Talkshoe could hear these files being played. This made the experience almost like a terrestrial radio show. Gizmo was a free download. I also played around with a software program called Voice Emotion (they had a free and a paid version) that allowed me to also play MP3 files over Talkshoe too. I experimented with different ways that I could dial into Talkshoe and one popular method was using Skype Out. Skype is a free download, and the Skype Out give you the way yo call regular land line phones using the Internet. Skype Out is around $38.00 per year.

Ok, this brings us to about a year down the road at this point. I wasn’t getting the results I wanted with my audio, quality, etc. and I started looking into a USB Mixer/Soundboard to hookup to my PC. There are several out there ranging from about $149.00 and up. I finally decided on an Alesis MultiMix 8 USB Mixer. I tried a few others and ended up sending them back as they did not perform the way I needed them to. The Alesis on the other hand, did! I picked mine up, new in the box, for $89.00 on sale. It retails for $149.00. Once I plugged in the mixer, it became, for all practical purposes, my sound card. Also, it allowed me to play my MP3 and WAV files using WinAmp or other players and this audio would go over Skype into Talkshoe very nicely. After getting the mixer setup the way I liked it, it became an intregal part of my studio.

In my next segment of this series, I will go into my entire setup including my video equipment and let you see, from my perspective, another part of my transition to video.

See you next time!

Popularity: 7% [?]

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Ok, before I begin this update, I’m going to step back a minute and bring you up to date. In case you haven’t been following this saga, the transition to video started several months ago. As many of you know, because you follow me on Twitter, Pownce, Tumblr or any number of other microblogs, or you are an avid listener to some of my shows, I had plenty of audio issues and other technical related issues while using Talkshoe.

Now, don’t get me wrong, I still believe Talkshoe is a good place to start live, interactive programming and after using them for more than a year and a half, they served their purpose in helping me to evolve away from live audio podcasting.

Anyway, I digress. When the issues started getting in the way of me producing my shows and I started losing live listeners and possibly download listeners (gauging from my stats), I knew it was time to take a serious look at other platforms.

I had been producing audio podcasts before I went live and then continued producing the audio podcasts along with the live podcasts and when video started becoming a standard to podcasters, I jumped in with both feet and produced pre-recorded videos as well as simulcasted my video and audio podcasts live. This was working out well for me until the audio issues at Talkshoe became worse. Now I had to make a decision as to whether or not to continue the live audio podcasts or just go straight video.

So, I did what any other podcaster would do in this situation and I sent a plea out to my listeners and subscribers to get their opinions on this move. If you have been reading my blogs very long, you already know that I had a very displeasing amount of comments come in. Displeasing in the amount of ZERO comments on this subject. However, I made a few calls to trusted friends and collegues and finally made the jump to straight video.

Now, the best was yet to come! Three weeks ago, after this decision had been made, I attempted to simulcast my shows on Talkshoe and uStream at the same time. And, you guessed it, Talkshoe still had audio issues that prevented me from doing this, so I had my first video only show that night. Went fantastic and no audio issues.

The following week, after I had announced my decision was final, I was going to do just one more show on Talkshoe. Well, as though it had been planned in advance (and it wasn’t I assure you), Talkshoe listeners could not hear me (with the exception of one listener) and even though I could hear everyone else, still no go. The show started late that, but after logging into my own phone conference bridge and then my mic mute button stuck, I was finally on the air, video only again.

Last week, I ran, start to finish video only and was able to work out some minor audio issues on the phone bridge BEFORE the show started, I mean that’s what the pre-show is all about anyway, and I had a nearly three hour show, again, issue free.

So, in conclusion, the transition to video has been a little rough around the edges, but needless to say, I am video only and am still podcasting the audio, on my own servers and with my own RSS feeds, so starting with the Month of August, using the Blubrry Statistics Program and Feedburner, I am able to track my subscribers, downloads and listeners and I am looking forward to many more issue free shows in the future.

I will post a second part of this post soon outlining what I have put together so that if you are thinking about this type of transition, you can have a leg up on knowing what to do.

Popularity: 7% [?]

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Ok, here are the show notes from Friday’s Podcaster Training, better late than never I guess. I had decided to do one more simulcast episode using Talkshoe and uStream at the same time, mainly because of the episode topic, but as someone in the chat room coined it, eMurphys Law took effect. Given that Talkshoe has had a number of audio issues in the past, it didn’t surprise me much when I logged in and no one could hear me. Ok, one person could hear me out of about a dozen or so logged into the chat room and on the phone bridge. Others were having similar issues with buzzing sounds and echoing, so since Talkshoe wasn’t a viable platform that night, I immediately switched to my conference line and ran the entire show on uStream only.

In a later part of the show, I made the announcement that I was going video only after last Friday. This caught a number of listeners by surprise, but I think they understand why I am doing this.

I have setup a new live page at http://www.newmediapro.tv and you can find the new RSS Feeds listed there as well. This page will become my new hub for Friday Nights from here on out.

The rest of the show went as planned with Jeff catching us up on the WordPress News and Josh with his Budde Podcasting Network news. Patti, during her Broadcasting Tips segment enabled some group participation from the listeners and chat room visitors. It’s this kind of interaction that really helps make this a great show.

Finally, we ended with the Business 101 segment, which I will make a post later at http://www.business101chat.com and then we had a great after show, as always. Speaking of the after show, it is now podcasted too and you can pick it up with the Podcaster Training RSS Feed now as a separate entry.

So, concluding this post, I will still podcast this show, only it will have a new RSS feed as I am also hosting the show too. iTunes will pickup the new RSS feeds soon, they will be available for you iTunes listeners very soon.

Even though we are video only now, I will still call the show, Podcaster Training and will continue as I have in the past. Only this time, with more video added to the show! Watch for that! And speaking of videos, I am preparing to post a WordPress SEO video series here to go along with next Friday’s Main Topic.

See you then!

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Popularity: 8% [?]

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Earlier this week, I put out a blog post talking about having to make a decision to go straight video or just keep things as they are right now (doing both Talkshoe and uStream at the same time). I also asked for comments to be posted to help me make this decision.

As you can imagine, I was, needless to say, underwhelmed by the response. No, you read that right, underwhelmed. I had zero, zip, nada, zilch (ok, enough Rob) responses to help me make this decision. So, instead, I called on a few friends, also Show Hosts, and got their opinions. After listening to them and then going over everything myself, I finally reached a decision.

Tonight, will be the last simulcast on Talkshoe. Don’t misunderstand my reasons for doing this. Talkshoe is still a good company and I realize they are offering all of these services for free. This decision has been a long time coming. I have held off doing this (going straight video) for some time now, because of the listeners. However, after the past few weeks of audio issues, well, let’s just say that I have to start over rebuilding my audience again.

The loss of listeners both live and download only, has been incredible. So to this end, I will start over fresh beginning next Friday Night. You will be able to catch the live show at http://www.newmediapro.tv and I will podcast the audio to a new RSS Feed for those who want to continue downloading the Friday Night Podcaster Training and Business 101 Shows. The new feed will be http://feeds.feedburner.com/ NMPPodcasterTraining for Podcaster Training and for Business 101 the new feed will be http://feeds.feedburner.com/Business101Chat

The main web sites will remain the same and if you are already subscribed to the blogs, you will not have re-subscribe again. The new RSS Feeds are for the audio podcasts only.

I will be sending out a special audio podcat to each of the shows currently hosted on Talkshoe to let the download only listeners know how to get ahold of the new feeds. I will do that this weekend.

So, there you have it! I will make the announcement tonight on the show, so if you read this after hearing the announcement, you’ll understand why it’s here first.

Popularity: 7% [?]

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Our main topic on Friday Night will be “Broadcasting Audio and Video Live at the same time, or should they be produced separately”. I have been broadcasting audio live on Talkshoe for over a year and a half now. Prior to that, I was podcasting (pre-recorded mostly) and video at that time, was just a gleam in most podcaster’s eyes, mine included.

Thanks to the recent outage at Talkshoe, I was able to prove to not only myself, but my listeners, that I could produce a video only show, complete with a conference phone bridge, chat room and clear audio. I had began several months ago putting together this method, which I coined My Plan B (Why? Because everyone needs a Plan B), and was able to pull the show together quickly and professionally and still make the air time on Friday Night. I had never tried my Plan B prior to that night, so I was really happy when it all came together smoothly and quickly and actually worked!

Now, once the show was over, Talkshoe, even though they were back online, couldn’t take any recordings. So, again, my Plan B for this was already in place and I simply podcasted my own recordings on my server and wrote my blog posts along with the embedded recordings for people to download and listen to.

Again, this worked out very well for me. Then today, when Talkshoe finally got the recordings back online so that I could finally upload last Friday’s episodes, I discover that some of my previous recordings are now damaged and the volume is all over the charts! I contacted Josh at Talkshoe and he is getting this looked in to. In the meantime, I now have a decision to make. Do I stay with Talkshoe and continue to hope that “all goes well” and keep cleaning up after them when recordings get damaged, lost or worse, or do I simply go to my Plan B, which I know will work and I have contigencies built in that will allow me to quickly change services and still keep the show going!

This is where you come in as a listener of my shows. I want you to leave a comment to this post, it’s public, so everyone will be able to read it, and let me know your opinion on this. I will make a final decision by Thursday, in plenty of time to amek necessary changes everywhere, and I will base my final decision on your comments. I really want to hear from you on this. I will also keep you updated on what is happening on this end too. Thanks in advance!

Popularity: 5% [?]