How to use commercial music in your podcast
November 27, 2018 · Updated February 7, 2019 · By James Cridland · 2.8 minutes to read
Can I use commercial music in my podcast?
There’s a lot of misinformation about this in internet forums and chat rooms. Here’s the only correct answer: No. No, you can’t.
“But my podcast doesn’t make any money!”
No. That doesn’t matter. You don’t have the right to use any commercial music on your podcast.
“But it’s fair use!”
No. Apple Podcasts, and Google Podcasts, are published globally: and the law that’s relevant is the law in countries where the material is available, not hosted. (That’s why companies geoblock content).
Some countries have a concept of fair use in copyright law (the US does, for example). Many others don’t (like Canada, Australia, or the UK), but have a concept of 'fair dealing’. Other countries don’t even have that.
“But I’m reporting a current event, and that’s acceptable under fair use?”
No. See above. Additionally, music is specifically not covered under Australian “fair dealing”, for example. Yes, the rules are different in every country.
“But fair use!”
No. Really, no. And also: “fair use” is a defence you use in court. If a court is involved, it usually means lots of court costs.
“But I have the permission of the artists!”
No. The artists are just one part of the equation; you also need the permission from the record company, from the composers of the music, the publishers of the music, and in many cases a “mechanical” right to allow you to copy the material.
Additionally, if a musician signs with a collection agency, then they’ve assigned their rights to the collection agency, and in most cases they actually can’t give you special dispensation. A publisher may also have separate deals with different companies in separate territories.
“But I live in the US, and my use is acceptable under US law, so isn’t it okay everywhere?”
No. The rest of the world doesn’t follow US law.
You can ensure that the podcast isn’t available anywhere other than the US. The BBC geo-lock some of their music podcasts to the UK only, for exactly this reason. (So do Netflix.)
“But I have bought a licence! Look!”
Yeah, nah. This is an Australian music licence, and valid for consumption only within Australia, but more importantly, this is only a licence for compositions and performances, and not for recordings. As the licence fact sheet says (at the bottom): “If you are using sound recordings, you will need to obtain licences from the relevant copyright owner: generally a record label, artist or digital aggregator.”
“But it’s less than ten seconds long and that’s okay isn’t it?”
No. There’s no minimum duration under which it’s all okay. Sorry.
“So, I can’t use any commercial music, then?”
Not really, no.
“Not even a little bit?”
But let’s be realistic. While it’s really clear - no, you can’t - the reality is that record companies and copyright holders are unlikely to prosecute if it’s not worthwhile.
Lawyers cost money. There’s no point in suing people who have no cash; no reason to make enemies for the sake of three seconds of usage; and there’s an argument to claim that unofficial usage of a track might be beneficial to the artist.
There’s plenty of benefit to “making an example” of a high profile podcaster. And plenty of reasons why they’d shrug and look the other way.
Or, plenty of reasons why they’ll just sit and wait for you to be successful, and THEN come after you, maybe two years later, when you can afford it. Here’s an example of Universal Music (in the US) coming after a UK podcaster two years after they were made aware.
So: if you have to ask, the answer’s no. Really, it’s no.
But if you go ahead anyway: you might get away with it.
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