According to Podcast Insights, there are currently over 660,000 podcasts in existence and over 28 million episodes available to listen to. This number is certainly growing as are the legal concerns and issues associated with hosting or producing a podcast. This article will provide some general guidelines and outline some of the rules around using copyrighted material in a podcast.
MVS attorneys are increasingly being approached by people asking if they can use a specific song in a podcast and the answer is usually some iteration of “it depends”, as is the case here, but I will start by discussing some common myths and misconceptions around the use of copyrighted materials.
Can I use a song if I only use 15 seconds of it? This is one of the most common misconceptions. Unfortunately, this is not true and there is no bright line rule that says a use is an acceptable use as long as you only use 5, 15, or 30 seconds of a song. Any use of copyrighted material without permission is, according to U.S. copyright law, copyright infringement. It does not matter if you use one second or the entire song, using copyrighted materials without the consent or permission of the copyright owner, constitutes copyright infringement. As a caveat, there may be fair use considerations present that will be discussed below.
Can I use a song if I provide credit and link to the song in the description of the Podcast? Again, the general answer is "no". Simply providing credit to the artist, or copyright owner, does not allow you the right to use their work without permission or compensation. Providing attribution may be appreciated, and likely even a requirement of a license, but simply doing so does not eliminate your potential risk or liability of copyright infringement.
I am not making any money from it. Would that be considered fair use? By far the biggest misconception MVS attorneys hear on a day-to-day basis involves the issue of fair use. Fair use is a legal doctrine that allows a user to use portions of copyrighted materials for the purpose of commentary, criticism, reporting, teaching, and research without the need for permission from, or payment to, a copyright owner. Depending on the nature or subject matter of your particular podcast, and the specific use in question, one of the above categories might apply to your use. The fact that you are not making money from your podcast (yet - hopefully) does potentially play a role in the fair use determination, but that factor alone is not determinative. Fair use is an affirmative defense to copyright infringement and judges use four factors to resolve fair use disputes. None of the four factors are determinative and each situation is evaluated on a case-by-case basis. Thus, judges have a great deal of discretion when making a fair use determination and the outcome of any given case can be hard to predict.
The four factors judges consider are:
- The purpose and character of the use.
- The nature of the copyrighted work.
- The amount and substantiality of the portion taken.
- The effect of the use upon the potential market.
Generally, the fact that you are not making money off your podcast is going to be weighed slightly in your favor, it is simply not going to be enough to be determinative in any fair use analysis. There are going to be situations where fair use is applicable and it is unlikely that you would ever receive a lawsuit for humming a few seconds of a song or singing the chorus of a song if it comes up in discussion, but again, each situation is going to be analyzed on a case-by-case basis. For a more detailed discussion of fair use, please click here.
Now that some of the common misconceptions have been explained, what can you do? There are still a lot of options to limit your potential liability while still putting out a great podcast.
Obtain a License from the Copyright Owner Obtaining a license from the copyright owner is the best way to eliminate potential copyright liability. Generally, a license is going to take the form of a contract that gives you permission to use a specific song or copyright work in exchange for money or other consideration paid to the copyright owner(s). Most licenses are going to be negotiated with the artist themselves, or their relevant record label and music publishing company. There has been an increase of podcasts licensing music, primarily for intro, outro, and theme songs. However, the copyright owners do not have to give you permission to use a song, and simply requesting a license, does not mean you have received a valid license. There is no price guarantee and certain artists are going to charge much more than other artists for a license. If you are attempting to obtain a license for a well-known song, you can reach out to the copyright owner directly or contact a copyright attorney to assist you in that process.
If you do not have a considerable budget, you can simply search the internet for stock audio sites that provide access to a wide range of songs and sound effects for you to use. There are a lot of great sites that are offering this service for very reasonable rates.
Use Royalty Free, Public Domain, or Creative Commons Content A simple internet search will also provide a significant number of sites that provide royalty free or creative commons songs for you to use. These sites generally have very few restrictions on how you can use the songs. Additionally, any song written prior to 1923 (as well as many written after that date) is going to be in the public domain, meaning it is no longer protected by copyright. If a song is in the public domain, you are free to use it in your podcast or any other format. Whether or not a song is in the public domain can be difficult to determine, but there are websites and attorneys that provide assistance with doing so.
And last but not least, you can always hire a musician(s) or local recording studio to create a song library for you to use.
As a general rule, if you are not sure, you will nearly always be advised not to use it. While podcast creation and listenership is growing rapidly, using that song is likely not worth the risk of finding yourself in the middle of a lawsuit. Taking some simple precautions now will likely help save you considerable time, energy, and resources later.