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Podcaster Questions: Can I Use Copyrighted Music In My Show?

A close up photo of some printed sheet music for Consolation No.4 in D-flat major by Liszt. The majority of the detail is slightly out for focus. There are handwritten notes on the sheets, in pencil.

The cover image for this post is by Marius Masalar

This blog post was written by Mark.


We’re about to greatly simplify a very complex legal issue relating to copyright law. And copyright law can differ based on the territory that you are in. So firstly we mus issue a warning

you should consult with a lawyer who specialises in copyright law. We take absolutely NO responsibility for, and will not be held accountable for, any legal trouble you might fall into relating to Copyright Law violations as a direct result of consuming this blog post

With that said…

Can I Use Copyrighted Music In My Show?

Earlier this week, Jamie and I attended a webinar with some of the folks from The Modern Mann about creating a successful podcast, and one of the people on the panel was Matt Hill. Matt is the managing director of Rething Audio, and producer of The Modern Mann. During the webinar, Jamie asked a question that a lot of people ask about podcasting:

"Surely I can use copyrighted music on my show. I mean fair use is a thing, right?"

- many, many podcasters

Jamie here: I was cheating a little, because I knew the answer but wanted everyone in the webinar to hear it from a reputable source

There are two answers to this, so we’ll split the remainder of this blog post in two, focusing on both sides of the coin.

But first

DO YOU OWN DUE DILIGENCE

Seriously, we are not lawyers and this blog post does not consist of you doing your due diligence. Go speak to a copyright lawyer.

Matt’s Answer And Context For It

Before we get to Matt’s answer, it’s important to know the context of the question. Jamie had asked about how they go about getting sign off for the copyrighted music that the play in a segment of The Modern Mann called “Record of The Week”. This segment comprises of roughly 45 seconds of a piece of copyrighted music, so the producers of the show are REQUIRED to get sign off for using any music used on their show.

With that in mind here is what Matt said:

"We have a music plugger, who will put you in touch with the three key people in signing off copyrighted music: band/artist management, record label, and publisher. These are never the same people, and it’s usually difficult to track each person down"

Firstly, Matt was sharing the process that they use as a friendly piece of advice. His own advice was caveated with the same “do your own due diligence” that we have peppered throughout this blog post.

Secondly, Matt mentions the three parties who are required to sign off on whether you can use a piece of copyrighted material. Namely:

  • The management team for the creator
  • The record label that they are signed to
  • The company who published the music

Without the proper sign off from all three of these parties, you WILL eventually see the ire of the RIAA (or relevant licensing group) and you will either be sued into non-existence, will face the wrath of a DMCA strike, or both.

If you don’t have, or can’t get, all three of these parties to sign off, then you will likely be seen as passing off copyrighted materials as your own; which, in some jurisdictions is the same as stealing (and worse in others). You wont get a simple slap on the wrist either, you could be sued for millions of dollars.

Fair Use

Firstly

WE’RE NOT LAWYERS. ALWAYS CHECK WITH A COPYRIGHT LAWYER. THEIR ADVICE WILL BE INFINITELY CHEAPER THAN THE COST OF A LAWSUIT

Now that that is out of the way, let’s talk about fair use. It might not actually be what you think it is, or as permissive as you think it is. In fact, I’ll wager that it isn’t either of those things.

Glen Weldon’s book “NPR’s Podcast Start Up Guide: Create, Launch, and Grow a Podcast on Any Budget

Jamie here: I’d recommend this book to anyone interested in podcasting

has an entire three page section about copyright and fair use which was written by NPR’s senior associate general counsel Ashley Messenger. In fact, the entirety of chapter 8 is devoted to the myriad topics that Ashley advises the NPR team about. But the most interesting part (for this blog post anyway) are the three pages on copyright and what the fair use test actually is. I wont quote the entire thing, but it boils down to

CHECK WITH A COPYRIGHT LAWYER, BECAUSE WE’RE GREATLY SIMPLIFYING HERE

  • Is it commentary or criticism?
  • Does it illustrate a point?
  • Copyright law does not specify how much of it you can use and claim as fair use.
  • Is there an established market for the original?

* “it” here refers to the copyrighted material.

"In sum, a use is usually considered fair when you use a short clip for the purpose of commentary or critique, or to illustrate a point. But there are no guaratnees! It can be difficult to assess what is fair use, and it helps to have a lawyer guide you."

Jamie here: we’ve added emphasis to this quote which was not present in the original

And if a lawyer who specialises in content-related legal issues for NPR can’t give you a straight answer, then there’s no way that whatever excuse for using copyrighted materials you’ve cooked up (unless you are a lawyer yourself) is vaguely correct.

Of course, we could be wrong too. We’re not lawyers. So your best bet would be to consult with a lawyer, specifically one who specialises in copyright law. Or, better yet, just don’t use the copyrighted material.

In Closing

Unless you either:

  • Have sign off from the three most important parties (management, record label, and publisher)
  • OR have a clear case for Fair Use

You CANNOT use copyrighted material in your podcasts without facing the ire of the RIAA (or similar) and risk being sued for millions of dollars in damages.

We’re not laywers, so don’t take our word for it. But do make sure to do your own due diligence and CHECK WITH A COPYRIGHT LAWYER.