NOTE: This article is based, in part, on recent posts by two excellent sources. I encourage you to check both blogs for more information. Consultant Steve Goldstein publishes Amplifi Media [link] and attorney David Oxenford publishes the Broadcast Law blog [link]. Also, I am not a lawyer and your situation may be unique. I advise checking with a lawyer before proceeding.
Imagine this scenario: You are a would-be podcaster and you have a terrific idea for a podcast based on your favorite cover-tracks of Beatles songs. Will it fly?
Probably not. Unless you have a rich sugar daddy to pay the bills, legal restrictions on the use of copyrighted material will prevent you from using music published and protected by ASCAP, BMI and SESAC.
Welcome to the reality of Intellectual Property.
You might have thought up the Beatles cover-tracks idea while you were on the air at your local noncommercial radio station that streams its audio. You can broadcast and stream Here Comes the Sun by Richie Havens or Rain by Todd Rundgren but you can not use these tunes in podcasts without paying megabucks. Podcasting is a different matter than broadcasting or streaming. Podcasts are provided directly to the consumer like a record album.
Playing music on the radio and streaming audio falls under a different set of rules. SoundExchange, the organization that handles music licenses for broadcast, streaming and “pure play” companies such as Pandora, are not covered by SoundExchange.
Take a look at the latest Podtrac rankings of podcast in the story below. Not a single one is based upon music. Some of them, particularly dramas like Serial have incidental music behind scenes. This type of music is typically purchased.
Perhaps you think no one will notice your use of music on your itty-bitty podcast. Once your podcast is available online or via mobile distribution it can be easily found by sophisticated tracking services. Plus, never screw with the Beatles' copyrights. See the story below.
HOW TO GET MUSIC LEGALLY FOR PODCASTS
There are three ways you can proceed: If the music you seek is affiliated with a collection organization such as ASCAP, BMI or SESAC you need to make a deal with the owner of the music. This is often a time-consuming and costly process. There are companies that provide this service such as the folks who acquire song rights for movies or television programs. Their services are also very expensive.
The second way is to purchase music from a vendor, often called “needle drop companies. I used De Wolfe Music [link] one of the biggest and most reputable companies.
The third alternative is to commission new music specifically your podcast. Be certain to have a lawyer craft the written agreement.
Also be aware that words and unique sounds may also be subject to copyrights. If you are using audio previously published elsewhere, be prepared to negotiate with the audio owner.
CLAIMING “FAIR USE”
“Fair use” is a concept filled with many gray areas. It is possible to use a limited amount of copyrighted material in a podcast in certain situations. Use in a bona fide news report is generally okay, as is noncommercial use within educational material. The line not to cross is any commercial use. Whenever money is involved, such as requiring paid subscriptions, you’ve likely crossed the line about what is permitted.
Keep in might that ultimately the original copyright owner, or in a worst-case scenario, a judge, determines fair use. Claiming that you a nonprofit company does not give you an exemption. However, lawyers do like to look for “deep pockets” for copyright litigation.
DON’T MESS WITH THE BEATLES
This is a story about lawyers and “deep pockets.”
A few years ago a friend of mine was working in the promo department at a TV station here in Minneapolis owned by one of the nation’s largest broadcasting companies. The TV station wanted to promote a new meteorologist on the station’s early morning newscast.
My friend and an associate decided to use about ten seconds of Beatles song Here Comes the Sun in the promo spot. They naively assumed such use was covered by the station’s blanket agreement with ASCAP and BMI. Senior management signed off on the promo and it began to air.
On the third day the promo aired, a representative of a law firm who represented the estate of the late George Harrison contacted the station. The message was “You owe us $6 million dollars for copyright infringement.” Yikes!
Harrison’s lawyer smelled a “deep pocket” and the estate finally settled with the corporation that owned the TV station for approximately $1.2 million plus legal fees. Ten seconds of audio was all that was needed to trip the legal buzzer.
MAY PODCAST RANKINGS FROM PODTRAC