Can I Play Music on My Podcast?
Since the emergence of podcasts as an entertainment medium, the format has grown from obscurity to dominance in just a few short years. The podcast format gives just about anyone the ability to put out content in long form conversations, allowing audiences to enjoy their favorite topics for hours at a time. The huge success of video uploading platforms like YouTube have made it possible for content creators to enter the podcasting market with basic equipment and just a few hours of their time.
In this discussion, we will regard videos uploaded in podcast format to YouTube as podcasts, although they do not technically fit the original definition. For our purposes, we will define a podcast as a long-form audio-only recording which generally contains either conversations or monologue. When uploaded to a video platform, the creator will generally use a single image to serve in place of video. Intro and outro music, stingers, and other timing related trademarks can be used as the creator sees fit. Podcasting, of course, technically means a long-form audio recording offered for purchase on iTunes to be downloaded to an audio file playing device.
Now the big question, especially for beginner and novice podcasters, is, “Can I use copyright-protected music in my podcast?” The simple answer to this question is, “Yes.” You can use copyright-protected music in your podcast, but you have to pay for the right to do so legally without risking a lawsuit. It’s a fairly safe bet to say that most people understand this. Where most people get into trouble is when they try to get away with using copyright-protected music without buying the rights to do so. So, let’s begin our discussion there.
Can I Use Copyright Protected Music Without Buying the Rights?
The fast, loose, and irresponsible answer to this question that many podcasters arrive at is, “Yes, if you only use 30 seconds or less of the track you want to play.” The fact is, a lot of podcasters are doing this and getting away with it, but they are placing themselves in serious legal jeopardy.
Let’s take a slight digression to discuss United States Copyright law. I promise not to bore you. Under United States copyright law, you can’t play any recording you want, whenever you want, through whatever medium you want. There are rules of the game.
When you listen to a song, there are two separate copyrights embedded in that song — the copyright in the musical composition (i.e., the words and music) and the copyright in the sound recording. So a song can be bifurcated into two parts: (1) the musical composition and (2) the sound recording.
Many songs have different versions, sometimes recorded by different singers at different times. Each of those versions contains the same underlying musical composition (the “song”), but each also comprises an authentic and original sound recording.
In some cases, the songwriter owns both copyrights. For example, if you write a song and record it, you own the copyright in the musical composition and the copyright in the sound recording. But that’s not always true. Usually, these rights are owned by separate people or entities. For example, a record company may own the rights to the recording while a music publishing company may own the rights to the musical composition.
Before you can play your favorite song on your podcast, you must obtain the rights to both the musical composition and the sound recording. The right to reproduce and distribute copies of a musical composition is known as a “mechanical license.” This doesn’t mean you have to call up the artist himself if you want to play one of his songs on your podcast. Imagine how absurd it would be to call Billy Joel up to ask him for permission to play “Piano Man” on your podcast. For popular songs, these rights are administered by an agency that acts as the middleman.
What if you want to record your own version of a popular song and play it on your podcast? Will that allow you to circumvent the licensing process? No matter how amateurish your version of the song sounds, you must still acquire the rights from the dreaded middleman.
Now that we’ve covered the musical composition, how about the sound recording, or the well-known, popular version of the song? Must you obtain a license for that as well? Yes. And to make matters worse, there is even more red tape to cut through because unlike musical compositions, sound recordings usually require obtaining a direct license from the copyright owner. This means identifying the record company that owns the rights to the master recording and contacting them directly. For example, Sony is Billy Joel’s record label.
Let’s circle back to the myth of the 30-second rule.
The most popular content hosting services handle millions of uploads every day. They cannot possibly manually review every recording they receive- not without hiring the entire population of China to do the job. This means they have to rely on automated systems to do the copyright monitoring for them. At the moment, it is not practical to have a system that can identify song clips shorter than thirty seconds.
There are literally millions of people with small-time podcasts that are getting away with this every day. Most of them believe they are allowed to use copyright-protected song clips 30 seconds in length or less because they have not received a cease and desist letter. What these hapless creators don’t realize is, if the owner of those tracks were to become aware of the fact that their work is being used illegally, they could sue the podcaster.
Most small-time podcasters are protected by sheer numbers, and by the fact that their humble earnings aren’t worth suing for. However, should you start a podcast and use even a one-second clip of copyright-protected music without permission- you could be hit with a copyright claim.
In one of the most common scenarios, a new podcaster just starts out podcasting, and uses a brief song clip in one or two early videos- before giving up on the practice. Then they go on recording episodes for a few years and grow their podcast up to a considerable size. Now, they have a large following and are quite visible. They are no longer protected from copyright claims by the shield of anonymity. Even if it has been years since they used the copyright protected song clip without buying the rights, they can get hit with a lawsuit and have to pay several thousand dollars- or more- in damages.
So, if you run a small podcast, and you have used even a short clip of music that you do not have the rights to- you are taking a risk. You could be sued for an amount of money commensurate with the earnings of your podcast.
How Much Can I Be Sued For?
Generally speaking, you can be sued for an amount of money that you have been deemed to have wrongfully made by using the right protected content. Statutory damages can be as high as $ 150,000 per song.
Now, it’s important to understand that judges are terribly creatively minded people. If you used a protected song in an early episode that did not make any money at all- but your brand has become very successful on the merits of later episodes- a judge may not have a sufficiently nuanced understanding of podcasting to be able to tell the difference.
To keep things simple, and cover yourself legally- the best and only sound advice is to never use music that you do not have permission to use.
How to Obtain the Rights to Use Music
There are four ways to obtain the right to include music on your podcast. They are:
- Write and compose the music yourself
- Have written permission from the artist or owner
- Use royalty free music
- Buy the rights to the music you want to use
The first approach is pretty straightforward, unless you’re not a musician. If you are a DJ and your podcast consists of mixes made from pre-existing songs, you must still follow the same rules.
The second approach may not be as difficult as it seems. You might have a musician friend who is willing to let you use his music. You could also solicit musicians to let you use their material for free in exchange for credit and exposure. This is actually a great way for musicians to get their music heard by new audiences. Just make sure you get their permission in writing before using it.
The third approach is a low-cost alternative and not as bad as you might think. Many online content hosting platforms work with musicians to provide creators with royalty music. They operate much like stock photo companies, such as Shutterstock. A popular site in this space is called, “PremiumBeat.”
The site should tell you how to display credits for each song you use. Other royalty-free music sites ask you to pay for each song a la carte. However, the prices are pretty reasonable, and much of the music you can get is top notch. This is actually a relatively new market for modern, Internet-savvy musicians to make a good living on. So you can rest assured that the quality, and the prices, can be quite good.
Be sure to carefully review the terms of the license to make sure that you’re complying with the license for podcasts specifically and not for other forms of digital media.
Finally, if it’s a big, popular pop song you feel you just have to have- then you can expect to pay a large sum of money for the rights to use it. Licenses for the musical composition of popular songs can catapult into the stratosphere and are well beyond the average podcaster’s price range. Before throwing caution to the wind and saying, “The hell with it. I’m just going to play ‘Piano Man’ on my podcast,” here is a word to the wise: remember, the bigger and more popular the musician you’re planning to steal from- the bigger and meaner their copyright legal team is going to be.
What if you’re part of a podcast network? Notwithstanding, you should still confirm that the company has all of the necessary licenses, especially if it’s a newer podcast network. You don’t want to get slapped with a copyright lawsuit only to find out your podcast network didn’t know what they were doing.
No discussion of obtaining the rights to use music on a podcast would be complete without a discussion of fair use. Fair use is an abstract and easily misunderstood area of copyright law. Distilling it into it simplest form, just because you think something is fair use doesn’t make it so. Just because you’re a nonprofit or your podcast is for educational purposes doesn’t mean you’re entitled to raise a fair use defense to copyright infringement.
The only sound advice I can give you is to never use music that you don’t own the rights to. Just because you’re getting away with it now, doesn’t mean you aren’t running a risk. There are plenty of affordable and free ways to get quality music- and no good reason not to use them.
