How to use commercial music in your podcast
November 27, 2018 · Updated December 5, 2019 · By James Cridland · 4.2 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. Podcasts are published globally. The Berne Convention says that the law that’s relevant is copyright law in countries where the material is available, not hosted. (That’s why companies geoblock content). For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.
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.
The rules around “fair use” are also different in many countries. So, this won’t cover you everywhere.
But fair use!
No. You see: US “fair use” is an _affirmative defence_ you use in court - it’s up to you to prove that your use was fair and not an infringement. If you’ve got that far, you’ve already spent a lot of money in legal costs, irrespective of whether you believe you have a right under fair use.
Fair use rules in the US are decided on a case-by-case basis, and the “rules” often change as technology or culture changes.
In short, “fair use” is very dangerous to rely on.
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” and “sync” 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. And the law that matters, for copyright, is the law where the podcast is consumed (as we mentioned above).
You can ensure that the podcast isn’t available anywhere other than the US. Other companies who do this, for example, are Netflix.
But I’ve bought an APRA mini-licence!
Nah, mate: yeah, nah. This Australian collection agency licence doesn’t cover use of music recordings. What a rort! These blokes aren’t fair dinkum! (etc)
The same may be relevant for other “music licences” you buy in other countries, such as (for example) from PRS for Music in the UK. Ensure that it covers everything you need, including use of the recording. (We’re unaware of any available music licences of this type that allow you to use commercially-available music).
But I read somewhere about a new agreement with SoundExchange?
You’re right: in August 2019, we heard news about a new agreement that could mean music licensing is available for podcasting. We’ve looked at the details in full, and there are many caveats. The biggest of which: right now, no licences are available.
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.
What about the BBC? I occasionally hear short clips of music in their podcasts.
Large broadcasters spend millions on their music licensing. The BBC and UK commercial radio managed to negotiate some use of short clips of commercial music for podcasts as part of their much larger music licence. This is unavailable to anyone not already spending millions on music in the first place.
So, I can’t use any commercial music, then?
Not really, no.
Not even a little bit?
What happens if I do?
In August 2019, we received an email from a podcaster who was chucked off Spotify for using commercial music without agreement. In this case, the podcaster was thrown off, lost all his listeners on Spotify, and was given no warning nor opportunity to appeal.
In November 2019, we revealed a company called Pex which is automatically scanning podcasts for unauthorised music. The company is already successfully being used on social media.
However, in terms of legal action, the reality is that record companies and copyright holders are unlikely to prosecute if it’s not worthwhile for them. Lawyers cost money, after all. 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.
Why don’t I just go ahead and do it?
It’s a gamble, because the record companies may 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.
But if you have to ask, the answer’s no. Really, it’s no. There’s no getting round it.
But if you go ahead anyway: you might get away with it for a bit; but the bots are coming, and it’s unlikely to be a good plan for long.
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