Why Can't Music Be Played In Podcasts?

Among the most frequent questions I am asked about podcasting is why music can't easily be licensed and played. I roll into some general legal mumbo jumbo about mechanical recording fees, publisher rights and other arcane music rights issues.  But enough of that.  Lets talk directly to someone who knows.  David Oxenford is a partner in the Washington law firm Wilkinson, Barker, Knauer, LLP.  David is well known in broadcast circles and has a long history working with media companies on a wide array of issues.  He also represents webcasters and digital media companies on copyright, music licensing and other regulatory issues.    

Steve: Why is podcasting different from streaming and what's blocking podcasters from playing music?

David: The difference is the rights that are involved.  Streaming involves the “public performance right.”  There are organizations in place to collect public performance royalties that cover both the musical compositions and the recorded songs.  For streaming, if you pay ASCAP, BMI and SESAC - and now GMR - you pretty much have the public performance rights to all musical compositions - also called the “musical work” – the words and notes of a song.  If you pay SoundExchange, you get the rights to publicly perform all the recorded songs legally released to the public in the United States.  With the rights to publicly perform the musical compositions and the sound recordings, you have what you need to do an Internet radio-type of streaming operation. 

Podcasts, though, are not viewed as public performances.  Instead of transmitting programming like a radio station, a podcast is viewed as a recording of the program – listeners are making copies of the podcast program onto their smartphone or tablet.  Under the Copyright Act, a recording does not involve the public performance right, but instead the right to make “reproductions” of the musical work and the sound recording. As the music is combined in a podcast with words and other sounds in the recording, it also invokes another right of the copyright holder to authorize “synch rights” or “master use rights."  To get any of these rights, you need to go directly to the copyright holders – usually the publishers for the musical works and the record companies for the sound recording – and negotiate for each song that you want to use.

Instead of transmitting programming like a radio station, a podcast is viewed as a recording of the program – listeners are making copies of the podcast program onto their smartphone or tablet.

Steve: Is there a path in the works that would change this for podcasters?

David: There's no nice easy way to get a license for podcast rights.  There is no place where you can pay one fee to a collection society or some sort of clearing house to get all the rights that you need to an unlimited amount of music.  There are a few online companies that try to match rights holders and users.  There are other sites that provide a user a price list to acquire the rights to use certain songs for certain defined purposes.  But these sites often offer rights only to independent releases, not the hits that you’d hear on the radio. Maybe one day someone will come up with a simplified system of clearing these rights to the “hits” for podcast uses, but I don’t know of one that exists now. 

Steve: I'm often asked about whether there is a right to use short clips of audio like 20 seconds, is there any such thing?

David: There is concept of what's called “fair use” where you can use a limited amount of a copyrighted work without specific permission of the copyright holder.  However, fair use comes with all sorts of caveats, and there are no simple formulas like “20 seconds is OK.”  There simply are no hard and fast rules as to what constitutes fair use.  Every time I talk about digital music rights, I make clear that there is no fair use exception for a use that constitutes only thirty seconds of a song (or even five seconds, ten seconds or twenty seconds). It is a myth that if you use only one of those limited amounts of a song you cannot get in trouble.

There are no simple formulas like “20 seconds is OK.”

Instead, a fair use analysis depends on a number of different factors.  One factor is the amount of the work used, but that is just one factor.  Another factor is the type of use.  If the clip is used in a commercial message, it is unlikely to ever be fair use.  But if it is used in a news report or in an educational program, there may be a better argument depending on the other factors.  Another factor to consider is whether the claimed “fair use” interferes with the ability of the copyright holder to monetize the work - for instance, if you are using the song as part of a produced intro that airs each week at the start of your podcast, that is the kind of music that an artist can be paid to produce, so it is unlikely to be seen as a fair use. 

All of these factors are weighed on a case-by-case basis to see if it is a fair use, and you may not know for sure until you are sued and a judge makes the decision.  But some uses are more likely to be seen as a fair use.  Commentary and criticism is a traditional area where fair use is often found.  If, for instance, you're doing a concert review or a review of a new album and you play short snippet of a song and talk about the guitar riff or the texture of the vocals or the meaning of particular lyrics, and you're just using enough of their song to illustrate the point that you're making, that is more likely to be fair use.  But I’ve seen cases where a podcaster in a music review uses too much of the song, and the copyright holder has complained.  There simply are no bright line tests as to when a use is a “fair use” and when it can get you into trouble. 

Steve: There are hundreds of thousands of smaller podcasts that average just a couple of hundred downloads and there is a notion that they are so small that no one is going to listen or find that they are playing music.

David: In connection with any sort of copyright violation you always hear that argument. You may think “If I do it, no one is ever going to notice and I'm never going to get caught.” But, while your podcast may only have a few people listening at first, if it goes viral and is heard by thousands of people - which presumably is what every podcaster is hoping for -  a rights holder can find out about the unauthorized use.  And even if you just have a small audience, if the wrong person hears it, you may get a demand letter or some other claim for compensation.

Steve: What type of money are we talking about here?

David: There is this concept under the Copyright Act called “Statutory Damages.”  That means that the copyright holder does not need to be able to prove that they were actually damaged by your use of their music.  All they have to prove is that you infringed on their rights, and they can be entitled to collect damages. A court looks at the infringement and can assess damages of anywhere from $500 to $150,000 per infringed song. Noncommercial users who were acting in good faith end up at the lower end of the scale.  Commercial companies, who knew that they needed rights and just didn’t bother to obtain them, end up owing higher damages. 

Steve: I haven't read a lot about podcast infringement but I assume that as podcasting becomes more of a thing, infringement would become more of the thing.

David: I think that's exactly right. As you get more big name podcasters and big name players doing podcasts, you're more likely to see these kinds of lawsuit develop.  We’ve recently seen a rash of cases where photographers have come after broadcasters for use of photographs on broadcasters’ webpages without permission. There are a number of lawyers who specialize in these photography cases, and they troll the Internet looking for infringement.  While we have not seen that yet for music in podcasts, it certainly could happen – and no podcaster wants to be the test case. 

If you are considering taking your morning show and putting it into a podcast format, take the comedy bits - don't take the music.

Steve: What about radio stations repurposing their broadcast content to podcasts? 

David: None of the traditional licensing fees for broadcasting (like ASCAP, BMI and SESAC) cover podcasting.  If you are considering taking your morning show and putting it into a podcast format, take the comedy bits - don't take the music.

Steve: And I would assume the same thing is true if a radio station is doing original podcast content.

David: That's correct.  Most of the more established podcasters are commissioning original music specifically written and recorded for the podcast.  Find a local band or musician, have them record their own music for your podcast, and pay them some money.  Get an agreement in writing where the musician agrees to license their rights to your podcast, just so that no questions arise down the road.  And make sure that the local musician is playing their own songs – no covers of songs written by someone else – as even the rights to the musical composition must be cleared.

Steve: What makes sense going forward? 

David: I would like to see a platform created where a company that wants to do a podcast can come to one place and easily buy the rights that it needs to include specific songs in its programming.  I have talked to a couple of companies that are looking at creating platforms where at least some songs are available at set prices.  I hope that this kind of platform develops in a big way to ease licensing. It would benefit both the podcaster who can eliminate the licensing risks and the music rights holders who can get a new stream of revenue. 

Steve: David, really helpful.  So for now, there is no easy path to having general music in podcasts.

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You can follow David's excellent posts at Broadcast Law Blog.