When digitizing radio broadcasts of cultural significance (such as a talk show confronting social issues), must a library, museum, or archive remove any separately copyrighted songs before posting the recordings?
This question assumes that the library, museum, or archive owns or has a license to use the overall recording of the broadcast.
When digitizing radio broadcasts for online (not-for-profit, academic) access, there are a number of legal issues to consider: intellectual property, contract, privacy, preservation, etc. But the question focuses on copyright, so this answer does, too.
And that answer is…yes, including copyright-protected songs in digitized broadcasts poses a risk of an infringement claim--but that risk does not need to trump the basis for preserving the broadcast in the first place.
How does the law help a digital archive strike that balance? Here are some options:
Option 1: If the copyrighted songs are not important to the broadcast, and can be removed without affecting the integrity of the broadcast, remove them.
If the basis for preserving and providing access to the broadcasts (capturing a moment in time, showing a spirit, confirming an approach) is not served by the presence of the songs, the best legal option might be to remove them, noting the redactions in a manner appropriate to the archive.
That said, I can only imagine a few scenarios where this is this case. So, next we have…
Option 2: Ask for acknowledgement of Fair Use, and permission
If not onerous, asking the copyright holder to acknowledge the Fair Use of their valid copyright, and to consent to such use in case later rights holders disagree, can be a wise step.
HOWEVER, as it can alert an owner to a potential claim, this should only be attempted with careful, customized input by an attorney, with due consideration as to how to avoid making an adverse admission, and what the implications could be if the rights to the song are later transferred (since one person’s Fair Use is another person’s rip-off).
Most importantly, such acknowledgement should only be sought prior to the recordings being posted. That is because the library, museum, or archive may want to protect their ability to simply claim…
Option 3: Fair Use
Including the songs could be non-infringing if the use meets the requirements of “Fair Use.” This is a posture taken by many online archives, and with good reason: Fair Use is a creature of both case law, and convention, so for most scholars and librarians, it is important to hold the Fair Use line, letting the world know that this important exception to infringement is alive and well.
That said, a “Fair Use” defense is assessed via a four-factor analysis (see the footnote); in this type of case, each broadcast recording and song would be subject to its own analysis.
While there is no case law directly on point, the recent case of Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013), which involved the use of a proprietary logo during a documentary film, states “[f]air use…protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” [emphasis added].
Using option 3 will require some clear-eyed assessment by the project leaders and institutional decision-makers. Is the entire song truly necessary to preserve the integrity, spirit and tone of the original? Does the overall recording transform the song into something different than its original? Does the manner in which the recording is presented make is difficult for the new version to supplant the market for the original? If not, the library, museum, or archive might want to consider…
Option 4: Fair Use “Lite”
With the Fair Use “Lite” approach, the institution would redact all but the first and last moments of the copyright-protected song (leaving any parts the hosts/guest are talking over) claiming Fair Use for the remaining portions. This could be done by a fade-in, fade-out technique, or another aural cue that the recording is departing from the original.
If it doesn’t destroy the integrity of the project, “Fair Use Lite” is worth considering, because the smaller the portions of the songs, the stronger your Fair Use claim might be, since factor 3 will weigh more in your favor. If there is any original dialogue over the song, that, too, can be left, with a claim that the content is “transformative” (factor 1).
If the decision is made to keep the recordings intact, or to use at least part of them, it may be helpful to have the basis for the claim available to the public; something like:
These recordings capture an important moment in time. The songs played, content shared, and material included in these revealing broadcasts were all selected by the original broadcasters for a reason; these digital versions are valuable because they paint an accurate and complete picture of the sound and feel of the times.
To the extent any proprietary material is present, its inclusion in this larger work is a Fair Use, warranted by the importance of presenting the material as a whole. Critically, please note that this use is not-for-profit, for educational purposes, and no commercial use of this content is made, nor allowed. If any content or restriction in this archive concerns any person, please contact NAME, at EMAIL.
And finally: prior to posting any digital archive, if it is an option, an institution should consider registering the copyrights to the MP3 files. This will position the institution to enforce any restrictions it places on use of the sound recording (like disallowing commercial use)…even if the purpose of the digital archive is to promote access and dissemination of the material!
As more audio content is archived and stored for cultural, historic, and academic purposes, this issue will grow. I expect we may have some case law directly on point soon.
 When confronted with this issue, it is worthwhile to take a close look at the songs involved. Some pre-1972 sound recordings do not have copyright protection, an issue playing out in what is known as the “Flo & Eddie” line of cases (just look up Floe & Eddie, Inc. v. Sirius XM Radio, Inc., and you’ll see what I mean). Of course, the underlying musical composition might be protected, even when the recording is not…but the recording may be less protected than you think!
 Congress provides a list of four factors that guide the determination of whether a particular use is a fair use. Those factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C.S. § 107. These factors cannot be treated in isolation from one another, but instead must be weighed together, in light of the purposes of copyright. This balancing necessitates a case-by-case analysis in any fair use inquiry. The United States Court of Appeals for the Fourth Circuit's precedents have placed primary focus on the first factor. A finding of fair use is a complete defense to an infringement claim: the fair use of a copyrighted work is not an infringement of copyright. 17 U.S.C.S. § 107.