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Music Copyright | Can I use a Song in my Podcast?

Music copyright is a thorny subject. Can you use a song that’s been copyrighted in your podcast?

At-a-Glance: Can I Use Copyrighted Music in a Podcast?

  • Possibly. But it's complicated, and often, expensive.
  • For starters – who actually owns the song? Ownership in music is complex.
  • And even if you did spend time and money getting the rights to a song, your show may be removed from Spotify – the 2nd biggest podcast directory in the world.
  • “Fair Use” is a defence you can try to use, if you get in trouble, whilst “only 7 seconds” is a bit of a myth.
  • It also doesn't matter if you're not making money with your show.
  • The good news is that there are plenty ways to get great music for your podcast – even for free
  • Read on to find out more…

It's one of the most frequently asked questions in the medium; “Can I use copyrighted music in my podcast?”. The short answer is “No”. But, as is usually the case in podcasting, there's a little bit of “it depends”.

It's important to stress that we are not lawyers. I can advise here, based on experience and info I've learned over the years. But ultimately, you should work with a legal professional if you're looking to go down the route of using copyrighted music in your podcast.

We have an interview with Entertainment Lawyer Gordon Firemark on Podcraft titled Podcasting Law: Stay Legal, & Protect Your Brand. It's well worth a listen if you want a deep dive into the ins and outs of the legal process.

Can I Play Copyrighted Music in a Podcast?

Alright so the short answer isn't quite “No”. It's closer to “Don't”.

Sure, it's not impossible. But you'd need the permission of everyone who owns the music.

Music rights are complicated. There are things called “mechanical rights” and “performance rights”, for starters.

Let's say your pal writes a song, then her friend's band play and record the song. Then, they're signed by a record label, and the song features on their new album.

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You want to use this song on your podcast. Who do you approach? Who do you pay?

The first person you'd pay is a lawyer, to help you figure out who else needs to be paid.

Then, the owners of the song will want answers to questions like, “how many times will it be played?”, and “where will it be available?” As you can imagine, these questions are virtually impossible to answer in the case of podcasting.

I Only Want to Play Part of a Song

You'll often hear things like “it's alright, so long as you use 7 seconds or less”. This is a bit of a myth. If you play 5 or 6 seconds of a copyrighted song as your podcast theme song, you're in breach of copyright.

What About “Fair Use”?

Fair use is a defence you can use if you get in bother for playing copyrighted music in a podcast. It also seems to differ a little, depending on what country you're in.

Where a fair use defence might stand up, is if you play a segment of a song for educational, criticism, or commentary purposes. It's much less likely to be valid if you're pulled up for playing copyrighted music as your podcast theme tune.

I'm Not Making Any Money With My Podcast

Music copyright laws are no different for not-for-profit podcasts and shows that don't monetise. This one isn't a valid defence I'm afraid.

I've Already Bought the Music Commercially

Another defence that's been touted in the past is, “but I bought the CD!”.

When you buy copyrighted music commercially, you're paying for the right to play it for your own entertainment, at home, in the car, etc. If you still own a CD, take a look at the small print on the sleeve. I guarantee there'll be something around how you can't play it “in public”.

Bottom line is, without an additional license, you wouldn't be allowed to play it in a small shop, let alone stick it on a podcast episode.

What About Copyrighted Music Recorded in the Background?

There's an Incidental Inclusion defence for when you've accidentally recorded some music in the background of your podcast.  Say you're recording an interview in a coffee shop or outside a music venue and you capture part of a song as actuality – you'll likely be excused as you aren't setting out to record it specifically for personal gain via your podcast.

That said, you can't use that as an excuse when you play the first 20 seconds of Yellow Submarine at the beginning and end of every episode.

Can I use copyrighted music in a podcast?

Will Podcasts Playing Copyrighted Music Have Limited Audiences?

The biggest place podcasts are consumed, by far, is Apple/iTunes. Then, in distant second, but still with a large listener-base, is Spotify.

Both directories are music distribution services too. That means they are wary of anyone playing copyrighted music on a podcast on their platform.

It's possible to get a pass from Apple if you can show them you've got the permission and licences. Spotify, on the other hand, seem to take a more hard-line approach. It doesn't look like they want any podcasts playing songs on there.

Obviously there's a difference between playing some intro music and a transition or two, to playing entire song after song after song. Again, that's why this is so complicated – and probably better left alone altogether.

Check out media hosting provider Libsyn's official podcast The Feed, Episode 162, from around the 10 minute mark for more on this.

The key takeaway here though, is that if you play copyrighted music on your podcast (even legally) then it may be difficult to grow a decent-sized audience.

When Does a Song Go out of Copyright?

This is another tricky one, because it varies from country to country. 75 years after a song was published, or 70 years after the death of the artist, are two criteria we hear regularly. You should never take these as gospel. These laws can be fluid and change year upon year depending on what's about to go out of copyright (and who currently earns from it).

Always seek advice and clarification from a legal professional, before using a song you believe has gone into the public domain.

There's also the question of the performance and recording rights. If you find a song that is in the public domain, but it was performed and recorded by a band a few years ago, then they own the rights to that version. You couldn't just go ahead and use it without their permission.

Does Your Podcast Need Copyrighted Music to Be Good?

This is a question worth asking yourself. If your show doesn't open with Bohemian Rhapsody or Welcome to the Jungle, will it still be good? Will your podcast really live or die on this factor?

Have you ever come across a listener review saying something like “the content and conversations in this podcast are absolutely mind-blowing, but I had to unsubscribe because it's sorely lacking in 10 seconds of intro music by Bob Dylan!” ?

Try ploughing all your effort into choosing a unique and original topic, and creating the best possible content around it. If you do that, you'll get away with 5 opening seconds of a chimp farting through a kazoo as your theme music.

So How Can I Get Great Music for My Podcast?

There are loads of different ways to get quality music that's totally legal to play on your show.

There's free tracks you can use under a Creative Commons license, and you can buy the rights to use Royalty Free music too.

Here are our favourite options for finding podcast music that are safe and legal to use.

Summary: Can I Use Copyrighted Music in a Podcast?

It's not impossible, but it'll likely be complicated, expensive, and could even limit your audience.

We're not lawyers (again, here's an episode of Podcraft with someone who is) but you should probably steer clear of going down this route. Here are plenty great options for finding music to play on your show.

Spend the bulk of your time, energy, and resources into creating good content, and promoting it to your target audience. That's the stuff that'll really move the needle, after all.

And if you need more tailored help, check out The Podcast Host Academy. There, you'll find our courses, resources, and can join us in weekly live Q&A sessions too.

17 Comments

  1. Thomas on 22nd August 2018 at 3:44 am

    What if I wanted to pay for the rights to use in my podcast? Who would I talk to?



  2. Maige on 23rd August 2019 at 9:37 pm

    Try Songfile.com



  3. Isaiah on 28th August 2019 at 9:34 pm

    If I wanted to do a podcast showcasing hit songs with cool time signatures, or songs that have a hidden message in the lyrics, etc. – would clips of these songs be allowed? It’s semi-educational/personal observations/review.



    • Lindsay Harris Friel on 30th August 2019 at 2:23 pm

      You’d have to get permission and pay the fee. 🙂



  4. Jeff Brittain on 8th November 2019 at 12:35 am

    What if the artist gave me permission? He’s a good friend of mine. How would I let the world know so that ITunes and other podcast applications let me use it?



    • Lindsay Harris Friel on 8th November 2019 at 6:04 pm

      Put the artist in the credits. You could say “Music by (artist name),” or “(title of song) is written and performed by (artist name),” or whatever suits.



  5. Kyle K on 14th November 2019 at 5:37 pm

    Following up on that Lindsay, if I’m interviewing the artist on my podcast and using 20 or 30 second clips from some of his/her songs throughout the podcast with their permission, is just having the artist’s permission typically all I need?



  6. Taycha on 29th December 2019 at 1:03 am

    What if it’s a situation where you’re at a family dinner listening to the (radio) and decide to record a podcast forgetting that the radio is playing… Would you have to scrap the podcast?



    • Lindsay Harris Friel on 30th December 2019 at 12:30 pm

      Is the background radio so loud that it eclipses the conversation?



  7. Pablo Povarchik on 31st December 2019 at 10:43 pm

    Can I get the rights to play a song on my podcast directly from the band? Could I have a simple agreement to be signed by the band or artist that grants me the rights to play the song on my podcast?



  8. Tanjia J on 10th January 2020 at 10:27 pm

    Hi Lindsay! This may have been asked peripherally but i just want to make sure. A friend and I starting a crime podcast, want to use a snippet from a popular Travis Scott song to show iour subjects relevance in popular culture. Is this legal? If not, how do we go about doing this the right way?



    • Matthew McLean on 13th January 2020 at 9:53 am

      Hi Tanjia, it’s only legal if you have a license for both the performance and mechanical rights to a song which can be very complicated and cost a fortune. I’d recommend you look at finding podcast music that’s simple to use and won’t get you in trouble. Here’s where to find podcast music.



    • Lindsay Harris Friel on 13th January 2020 at 10:17 pm

      I wouldn’t. It has less to do with the artist themselves, and more to do with their record company and armies of lawyers. There are so many other options for finding good music, anyway. Have a look at this article about finding music for your podcast.



  9. Jonathan on 4th February 2020 at 8:46 am

    OK, you mentioned reviews and educational purposes. What if my podcast is about music, with reviews and analysis? Can I use copyrighted music then?



    • Matthew Boudreau on 28th March 2020 at 1:47 pm

      In general, yes, as long as only a portion of the music is used. To be clear, it is important to remember that fair use is a defense and not a shield against potential lawsuits. Some companies will sue whether they have a case or not in order to tie up creators in legal fees. So, it’s worth taking care to ensure you understand copyright law enough to be aware of the risks before proceeding. Creative commons has a great basic legal guide here.



  10. Darrell R Adams on 27th March 2020 at 12:29 am

    Hi! Great site! I’m planning a pod cast of a certain kind of music, most of which is probably copyright. No money will be made from this site, because it will be a podcast for the enjoyment of, and ‘education’ of the music. by education I don’t mean as a learning institution or non-profit, but purely to let people know this music is out there.

    Ideas on whether licensing is required? I don’t want any cease and desist stuff!

    Thanks!
    darrell a.



    • Matthew Boudreau on 28th March 2020 at 1:37 pm

      Most U.S. courts will not accept “getting the music out there” as educational. Typically, this refers to educating students in music theory and history by using music as a supplement. In these instances, the focus of the program would be specifically about the music. Copyright law is still in effect regardless of whether money is made. Often, folks quote this as one of several criteria for fair use, and sometimes that is the case, but keep in mind that Fair Use is a defense, and not an exception to copyright law, meaning money would still be spent o lawyers and court appeals to argue that your specific case is fair use. Judges tend to judge these on a case by case basis, and as such, there is no blanket Fair Use exception under the law. Keep in mind that Disney just tried to charge a school (an educational institution) for airing one of their movies for the school’s students.

      The best rule of thumb is if you don’t own it, either buy it or ask for permission to use it. If you would like to use copyrighted music for your podcast, you or your hosting service would have to have a license through ASCAP and/or BMI, which would cover any music that you use from either licenser.

      For more info check out the Web & Mobile licensing section, here, for mor information on New Media licensing.



Written by:

Matthew McLean

Matthew is an audio drama writer and producer who enjoys talking about podcasts. He makes the tea at The Podcast Host, and is a loyal servant of adopted house rabbits.

March 23rd 2020