How to use commercial music in your podcast
· Updated October 16, 2020 · By
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. “Fair use”, or “fair dealings”, is different across the world: and the Berne Convention says that the law that’s relevant is copyright law in countries where the material is available, not hosted or produced. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.
“Fair use” is also an affirmative defence you use in court, which are normally decided on a case-by-case basis. 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.
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.
The RIAA (who work for US record companies) has shut down podcasts that claimed to have the permission of the artists. It isn’t enough.
In most cases, an artist they actually can’t give you permission, since they signed a contract with publishers and record companies.
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, NPR and some other podcast studios do this on some platforms. Other companies who do this, for example, are Netflix, who geo-lock their shows depending on territory.
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 did. In August 2019, we heard news about a new agreement that could mean music licensing is available for podcasting. We looked at the details in full, and there are many caveats. The biggest of which: right now, no licences are available.
But I read somewhere about Anchor/Spotify allowing it now.
You did, too. Anchor/Spotify announced Shows with Music, which is a way to put full tracks into your show.
This is great, and really welcome news. But it comes with a few caveats:
- You can only hear these shows on Spotify - not on any other platform (so it isn’t a podcast really)
- Your listeners can only hear the songs in full if they pay for Spotify Premium
- These shows also have plenty of rules about how much talk you’re allowed to have, and where ads can go
But I’m using 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. Some publishers managed to negotiate some use of short clips of commercial music for podcasts as part of their much larger music licence. Some are probably winging it, knowing that they spend a lot of money on music use anyway. 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?
Well, there’s the RIAA action we mentioned above, in October 2020. They threatened the podcasts with legal action, and, as one of the podcasters pointed out, “if the RIAA actually sues for damages, they will be coming after my personal savings, my retirement, and my house. I can’t afford to put all that at risk.”
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.
Is it really as simple as “no”?
Well, no. With an awful lot of work, you could licence music by working with each part of the chain, but, as is hopefully clear above, it’s not as easy as you think it’s going to be: and your licence is unlikely to be valid everywhere in the world.
Speaking at World Audio Day 2020, here’s media lawyer David Oxenford again, covering the basics as to who gets paid for what uses of music in digital media including webcasting and podcasting. It’s a US-centric look, but may help understand the intricacies of music licensing: and why our advice is, simply, “no”.
So, no music, then?
Oh, wait, we didn’t say that. You can use music. There are plenty of music companies who’ll licence you their own tracks: some based on a licencing period, others as a buy-out. Podnews’s podcast contains bespoke music, composed for us by Devaweb, as one example. There are composers everywhere who are eager to produce something for you, even ones oddly called The Benevolent Badger. Use them.
As long as you don’t just copy your favourite easy 1990s hit onto your podcast, you’ll be good.