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…
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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.
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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.
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.
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.
The key takeaway here, 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.
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.