Issue 245,  published February 11, 2020

Fair Use Fracas

Last Wednesday, author and podcaster Rich Roll published a Twitter thread that raised significant issue with WeCrashed, a new Wondery show on the story of WeWork that rolled out in mid-January.

Specifically, Roll highlighted WeCrashed’s second episode, which featured an interview with WeWork co-founder Miguel McKelvey that not only appeared to utilize several portions of Roll’s own podcast interview with McKelvey without sufficient attribution, but was also edited in such a way that could plausibly make the segment seem as if WeCrashed host David Brown had conducted it. Roll, who is a former entertainment lawyer, additionally pointed out that Wondery’s usage of his audio clips exceeded fair use safe harbor, i.e. the point beyond which fair use understandings afford protections from liability.

Wondery would pull the episode and replace it with a re-edited version almost twelve hours later, citing “human error.” Roll was given an apology shortly after.

So, this story is broadly about how fair use parameters should be applied in podcasting, still “wild” and “west” and annoyingly underdeveloped in terms of attribution enforcement and underlying monetization inequities. But there’s a more specific thread to this story, too: it represents a problem we’re likely to see much more of as we continue to see the rise of a podcast genre that specializes in rapidly-produced repackages of stories that have been told elsewhere.

There aren’t that many podcast lawyers running around just yet, but that should change. We sure will need ‘em.