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How to use commercial music in your podcast

November 27, 2018 · Updated August 24, 2019 · By James Cridland · 3.5 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: and 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).

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 fair use!

No. Really, no.

In any case: “fair use” is a defence you use in court. 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.

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. And the law that matters, for copyright, is the law where the podcast is consumed.

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’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)

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.

The BBC and UK commercial radio both spend millions on their music licensing; and about ten years ago they managed to negotiate, for podcasts available within the UK only, a thirty-second limit. This is part of their much larger music licence; and something unavailable to anyone not already spending millions on music. And those podcasts are geo-blocked to the UK only, or only available via streaming (in which case they’re not podcasts).

So, I can’t use any commercial music, then?

Not really, no.

Not even a little bit?

No.

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. It’s possible that Spotify, at least, is running some automated bots to check podcasts for music content - and if Spotify is using a bot, you can guess that others might be, too.

In this case, the podcaster was chucked off, lost all his listeners on Spotify, and was given no warning nor opportunity to appeal.

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.

But: no.

Previously...

<< Podcasters win at the APAs in London; and the WaPo's new daily podcast

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