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
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