By Matthew B. Harrison
SPRINGFIELD, Mass. –– Good talk radio hosts draw upon multiple sources for material. News, media, pop culture and their own lives and interests are standard sources for talking points. In today’s digital world two pressing legal questions should be on your mind:
1) How difficult is it to infringe upon someone’s copyright when borrowing a concept, the goodwill, or even actual pieces from someone else’s work?
2) How difficult is it to protect your own work from having others use too much?
Copyright protection is only available for the expression of ideas and not the ideas themselves. This is known as the idea/expression dichotomy.
The “idea” is to, say, do a show on conservative political issues. The idea, furthermore, is to spin (or “position”) an issue in a particular way as to highlight a thought-provoking point. The protectable “expression” is the recording of the segment in which you make the point. While you may have been the first person to make such a point, only your exact expression is protected and other –– perhaps not as talented –– hosts can run with the idea their own way as they see fit.
The purpose for this distinction is to balance the First Amendment goals of free expression with the copyright goals of advancing the useful arts and sciences by affording protection to the creators of such work.
This idea/expression dichotomy is ultimately the crux of the analysis regarding potential copyright infringement.
It is very obvious in a painting. If you paint a picture of the sun setting into a lake by your house, you cannot prevent others from painting the same scene. However, you can prevent someone from taking your original painting and turning it into a poster for sale.
In photography, a recent case decision also makes this concept seem obvious. In recent news, photographer Ryan McGinley, known for work that presents a lush vision of youth culture, was sued by another photographer who accused him of relying too heavily on her work for his inspiration. Janine Gordon filed suit against McGinley saying that at least 150 of his photographs are “substantially based” on her work and are violations of her copyright protections. She lost because artists can have no claim to ideas such as an interracial couple kissing, a person gazing skyward with outstretched arms, or a man riding on a spotted horse.
In radio, it should be equally as obvious despite talent wanting to think that there are less potential iterations for ideas as there are in painting or photography. Unless someone is using the exact words –– using the same ideas even in extremely similar ways will not be enough to evoke copyright infringement. Of course, this goes both ways. If a host is using a magazine article as part of his preparation, and recites the article word for word –– even only in part –– there could be infringement (though, there may also be a fair use defense, but that is for another article). On the opposite side, if a website reposts content from your show on their page, it too could be infringement.
Understanding the idea/expression dichotomy will allow you to use material without infringing upon others’ protected content while also knowing when usage of material is infringing your rights.
Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.