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I guess it depends on the size of the entry. In the case of today's Alpha Flight, I would guess what is read is less than 20%, but that is probably an entry with more history paragraphs than some others. But as there is no original content, just copywritten stuff being read as a podcast, then there would be no grounds to even argue Fair Use. I would guess if the original commentary/review matched or exceeded the excerpt they might be able to argue review purposes or something, but that is just a guess.I also would think-- and it may not come to this-- but if the podcast includes content and commentary on top of the copyrighted material being read, then you will have a better argument that this is fair use rather than infringement.
No, that wouldn’t help in this case. He’s still reading entries in their entirity. It doesn’t matter how much comentary you add if you’re still reproducing the entire work. To be fair use, he would have to be reading only a limited number of select quotes, and then adding commentary on top of that.
Is it in their entirety, though? It sounds like just the information at the top of the entry (the stats), and not the paragraphs of further text. It may still be considered too long of a quote, but it doesn't sound to me like any of these have been a complete entry.
I haven't listened to them, so I'm not sure how much of the text is being read, but going by what you’ve said, I think it would still be considered too large a percentage of the text. I mean, that’s still about 20–30% of the text in most cases, right? A lot is left up to judicial interpretation, but that would still be too much.Doe it have to be considered in the context of the entirety of the source? Ie ... the limited number of entries he's using compared to how extensive the OHOTMU as a whole is?
A court wouldn’t look at the separate episodes individually, but all of them as a whole. For Marvel’s side, it would be on an issue by issue basis. In other words, all the episodes covering issue #1 would be looked at together as an infringement on issue #1, and so on with each issue. So if the podcast continues all the way to the end, it would mean multiple counts of infringement.
Now, I don't think Marvel/Disney would bother suing over this, but they might be inclined to send out a cease and desist and ask that the episodes be taken down. In fact, if it were discovered by their legal department, that would probably be an automatic response.