Photo by Will Francis on Unsplash
Bailey Wharton, Associate Member, University of Cincinnati Law Review
Author Brendan Koerner took to Twitter on Monday, April 11, to highlight his recent experience with a podcast “shameless[ly] rip[ping]-off” a story he wrote for the Atlantic last year. He tweeted that “no credit [was] given and the creator did no original reporting.” Unfortunately, this is not the first time this has happened to Brendan Koerner and his work. Last summer, Brendan Koerner claimed that another podcast “did a page-by-page adaption of his [second] book, The Skies Belong to Us, without giving a lick of credit.” Around that same time, Brendan Koerner had to file a Digital Millennium Copyright Act (DMCA) violation on a YouTuber who “literally read one of [his] Wired stories aloud and tried to pass it off as her own.” And again, just this past week, Brendan Koerner was alerted to yet another podcast that is doing a “two-parter lifted from [his] first book” with no mention of the book title at all. When Brendan Koerner contacted a few of the podcasters about the lack of credit, two got back to him, saying they would add a quick shout out at the beginning of the episode. The question remains—does a simple shout out absolve the podcaster from any sort of fair use or copy right violation when the entire podcast source material is essentially a re-reading of another creator’s research?
Popular true crime podcast network, Audiochuck, has had its own share of plagiarism scandals. First, in 2019, the hosts of Audiochuck removed several episodes of their hit show Crime Junkie after being publicly accused of not crediting their sources. In response to the backlash, host Ashley Flowers stated that the episodes were removed “when their source material could no longer be found or properly cited.” The next claim of plagiarism came following the launch of their new show, The Deck, earlier in 2022. This time, Audiochuck has been accused of basing The Deck “on the same [story] and the same format” as a different podcast released in 2020.
In 2020, the Swedish Patent and Market Court found that Swedish true crime podcast Mordpodden had infringed on the copyright of a 2015 book in an episode they did about the same true crime case. While the Court held that “it is not forbidden per se to use facts and information from a copyright protected work as the basis for[. . .]a podcast episode,” about half of the material sourced for the episode came directly from the 2015 book, and in incorporating that material, the podcast “did not use the facts from the copyrighted work in a new and independent form,” thus, violating the copyright.
These are just a few of the publicly documented cases of podcasts using material for their shows without providing any credit. This is a largely unregulated phenomenon that has emerged with the rise of podcasts. First, this article will briefly outline two legal ways podcasters may utilize outside works in their podcasts—through the fair use of copyrighted work and by licensing the material. Next, the article will discuss why podcasting has a plagiarism problem and whether it is too late to stop it.
Two easy ways podcasters can legally use copyrighted work as the base source material for a podcast is to either ensure that the material utilized is “fair use” material, or to purchase an option on the copyrighted material. This section will outline what constitutes fair use and how to license copyrighted work.
A. Fair Use Under Copyright Law
In certain situations, an individual may use copyrighted information in a way that does not violate the copyright. This is called fair use. Fair use allows limited use of copyrighted material without permission for “purposes such as criticism, comment, news reporting, teaching [. . .], scholarship, or research.” To determine whether the use of copyrighted material is considered “fair use,” there are four factors to consider: “(1) the purpose and character of the use,[. . .]; (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.”
B. Licensing or Optioning Material For Use
One myth that seems to be prevalent in the podcasting sphere is that as long as you shout out and credit the source of the material used, there are no copyright issues. This is unequivocally false. To avoid any copyright infringement issues, the easiest option is to purchase the rights to the copyrighted material and obtain permission for the use from the copyright holder. Another alternative is to purchase an option on a copyrighted work to gain an “exclusive right to try to adapt a story [. . .] for release as a film, TV,” or, in this case, a podcast. By entering into this type of option agreement, the podcast producer has exclusive access to the material to use for their podcast.
With the explosion in popularity of podcasts, it has become incredibly easy for just about anyone to purchase a microphone and start a podcast from their house. However, this also means that there are a lot of podcast hosts who have no idea that they cannot just use any material they find on the internet to serve as the basis of their show. Or, amateur podcasters may just not have the funds to be able to license or option the material they want to use and just use it anyway in hopes that the copyright holder never notices.
The true crime genre appears to be especially susceptible to these types of copyright infringement issues because many of the true crime podcast hosts are not professional journalists who conduct the research on the stories themselves. Rather, they tend to rely heavily on outside sources, and in some cases entirely on one source, with little or no credit at all. This is a frustrating phenomenon because not all plagiarism examples will be malicious—sometimes it comes down to the ignorance of the podcaster to not know the law beforehand. That is why knowledge of plagiarism and copyright infringement is important to have in relation to podcasting.
Unfortunately, there is not an easy way to enforce podcast copyright infringement due to the largely decentralized nature of podcasting platforms and the otherworldly number of podcasts that exist. There is no singular “institutional heritage or oversight” to ensure that legal, ethical, and professionalism guidelines are being followed. As the podcast space continues to grow, there needs to be greater focus on “educating podcasters on what they can and can’t do legally.” A greater emphasis on preparation, research, and source attribution included in the podcast show notes would be a good start in reinforcing the habit of respecting the work one chooses to include in a podcast. Otherwise, there is certainly going to be an increased number of copyright infringement lawsuits that will result in “lost credibility at a minimum” for the podcast community.
 Brendan I. Koerner (@brendankoerner), Twitter (Apr. 11, 2022, 9:02 AM), https://twitter.com/brendankoerner/status/1513502690952855554?s=21.
 Brendan I. Koerner (@brendankoerner), Twitter, (Apr. 11, 2022, 9:04 AM), https://twitter.com/brendankoerner/status/1513503192373411846.
 Brendan I. Koerner (@brendankoerner), Twitter (Apr. 11, 2022, 9:06 AM), https://twitter.com/brendankoerner/status/1513503692938518538.
 Brendan I. Koerner (@brendankoerner), Twitter (Apr. 11, 2022, 9:07 AM), https://twitter.com/brendankoerner/status/1513503961826971652.
 See Brendan I. Koerner (@brendankoerner), Twitter (Apr. 11, 2022, 9:05 AM), https://twitter.com/brendankoerner/status/1513503557445632000; Brendan I. Koerner (@brendankoerner), Twitter (Apr. 11, 2022, 9:08 AM), https://twitter.com/brendankoerner/status/1513504339834322951.
 See Todd Spangler, ‘Crime Junkie’ Podcast Host Ashley Flowers Responds to Plagiarism Allegations, Variety (Aug. 15, 2019), https://variety.com/2019/digital/news/crime-junkie-podcast-ashley-flowers-plagiarism-1203302072/ (Arkansas Democrat-Gazette reporter Cathy Frye accused Crime Junkie of putting out an episode that “relied entirely on Frye’s work” and “quoted a portion of [Frye’s] copyrighted story almost verbatim” without citing or crediting the source.); see also id. (Other examples include allegations that in a May 2018 episode, host Ashley Flowers “practically read [from [a] Reddit post] verbatim without credit,” while a March 2019 episode “was an almost word for word copy of a 2018 episode of ‘On the Case with Paula Zahn’ that aired…on Investigation Discovery.”)(internal citations omitted).
 James Cridland, Shown the red card – has Audiocheuck’s new podcast copied someone else?, podnews (Feb. 7, 2022), https://twitter.com/brendankoerner/status/1513504339834322951; see also id. (The host of the original 2020 podcast stated, “I don’t want to shut down a family’s opportunity for people to hear their story, and help with their case. But it’s not right for someone who thinks they’re bigger and have more money than I have, so they can just come in and take something over.”)(internal quotations omitted).
 Arvid Axelryd & Carla Zachariasson, Copyright infringement and the right for the proprietor to be named – the podcast perspective, Vinge (Apr. 15, 2020), https://www.lexology.com/library/detail.aspx?g=f7ac1c5b-2dfc-48f5-9f9f-221759767627&utm_source=podnews.net&utm_medium=web&utm_campaign=podnews.net:2020-04-16.
 17 U.S.C. § 107.
 Erin Williamson, How to Avoid Copyright Infringement on a Podcast, Copyright Alliance (Mar. 30, 2021), https://copyrightalliance.org/how-to-avoid-copyright-infringement-on-podcasts/.
 The Ultimate Guide to Option Agreements for Indie Authors, Alliance of Independent Authors (Jan. 24, 2022), https://selfpublishingadvice.org/option-agreements/.
 See Beau Paul, Are true crime podcasts blatantly stealing from non-fiction writers?, We Got This Covered (Apr. 11, 2022, 12:39 PM), https://wegotthiscovered.com/social-media/are-true-crime-podcasts-blatantly-stealing-from-non-fiction-writers/.
 See Is Podcasting Getting A Black Eye From Plagiarism?, Podcast Bus Jnl (Aug. 28, 2019), https://podcastbusinessjournal.com/is-podcasting-getting-a-black-eye-from-plagiarism/; see also Jason Wise, Podcast Statistics 2022: How Many Podcasts Are There, Earthweb (Mar. 19, 2022), https://earthweb.com/podcast-statistics/ (“There are over 2 million podcasts worldwide.”).
 Paul, supra note 16.
 See Is Podcasting Getting A Black Eye From Plagiarism?, supra note 17.