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Copyright Question: Can I Play Music on my Podcast?


After percolating for a decade or so, podcasts have grown wildly in popularity as a communication medium. This is a result of a confluence of factors, not the least of which is the emergence of a certain story about a murder in Baltimore. We are now living in a post-Serial world. And just like with any other form of media, there’s some confusion and lack of information about the rules of the road. All of which brings me to the copyright question at hand: can I play pre-recorded music on my podcast?

Let’s start with this: under US copyright law, you can’t just play any recording you want, whenever you want, through whatever medium you want. So what are the rules? What follows is a very simplified version of how music copyright works.

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Music Copyright 101

When you hear a recording of a song, there are, most likely, two separate copyrights embodied in that song – the copyright in the musical composition (the words and music) and the copyright in the sound recording. We all know that there are often many different versions of the same song, sometimes recorded by different artists at different times. Well, each of those versions contains the same underlying musical composition (the “song,”) but each also comprises a unique sound recording.

Sometimes the songwriter owns both copyrights. If I write a song today and record it, I own the copyright in the musical composition and the sound recording. Often, those rights will end up being owned by separate people or entities. For example, a record company may own the rights to the recording (the “master,”) while a music publishing company may own the rights to the musical composition. It can get more complicated from there, but this is enough to deal with for this blog post.

Back to Podcasts

Every time you download or stream a podcast, you’re making a copy of the audio file containing that podcast. The word “copy” in the previous sentence should provide a clue why that matters. Copyright includes, among other things, the right to prevent others from making copies of your work.

OK, let’s say I understand all this, and I just really really want to play my favorite song on my podcast. In order to do so, I’ll have to obtain the necessary rights for both the musical composition and the sound recording.

The right to reproduce and distribute copies of a musical composition (remember, that’s the “song” as written by the songwriter) falls under what’s called a “mechanical license.” This doesn’t mean you have to call up Bruce Springsteen himself if you want to play “Glory Days” on your podcast. For most well-known songs, these rights are administered by an agency who acts as the middleman. The most well-known is the Harry Fox Agency. Contact them and see how much the rights are (I’ll wait right here.)

It’s also a bit of an unresolved legal question whether or not including a song in a podcast is a “public performance” for the purpose of copyright law. I’m trying not to let this all get too out of hand, but suffice to say that if the law was to consider my podcast a “public performance,” then I would also need a performance license from another agency entirely (ASCAP, SESAC, or BMI.)

One more point before I move on – let’s say you want to record your own version of a popular song and use it on your podcast (or you want to have a friend record her version, you get the idea). In that case, you’d still need the rights from Harry Fox, and, presumably, one of the performance licensing agencies listed above.

Alright, so what about the sound recording – meaning, the well-known, popular version of the song? That’s even more complicated. There’s a company called SoundExchange that handles licenses for sound recordings – but they only do so for webcasting services (think online radio stations, Pandora, etc.) SoundExchange explicitly says:

If you are offering podcasts that include sound recordings, then you may need to obtain a direct license from the relevant copyright owners. SoundExchange does not administer licenses for podcasting.

So, what you’d need to do is identify the record company that owns the rights to the master recording and contact them directly. Sony Music is Bruce Springsteen’s record company, so you can go ahead and contact them now (I’m still waiting.)

What if I just say, “The heck with that, I’m playing “Glory Days” on my podcast, and nobody can stop me! It’s a free country!” Well, in that case, I’d be looking at statutory damages of up to $150,000 per song. Ouch.

What are the Alternatives?

For most folks starting out in the podcast world, it’s not going to be feasible to license your favorite Springsteen song, and even if you record your own version, the licenses for the musical composition might be out of the average podcaster’s price range.

There are a variety of free or low-cost alternatives out there. Some of them, such as PremiumBeat, operate much like stock photo companies. Other songs are made available under a variety of different Creative Commons licenses. Always be sure to carefully review the terms of the license, whether it’s through Creative Commons or an online service provider. You want to make sure that you’re complying with the license for podcasts specifically and not for other forms of digital media.

What if you’re part of a podcast network? Congratulations, you’ve moved up to the big time. But you should still double-check to be sure that the company you’re working with has all the licenses worked out. If you’re doing a podcast for an established entity like NPR or Slate, one would hope that they’ve gone through all this with their lawyers and have provided you with a set of best practices. If it’s a smaller, newer podcast network, be extra careful. You don’t want to get hit with a copyright lawsuit only to find out your podcast network didn’t really know what they were doing, and the legal (and financial) liability might just fall on you.

What if I’m a DJ and my Podcast Consists of Mixes I’ve Made from Pre-Existing Songs?

Tough luck, the same rules apply.

 It’s OK, My Podcast is Fair Use!

Excuse me while I bang my head against the desk. OK, that’s better.

Fair use is an extremely complex and misunderstood aspect of copyright law. Just because you think it’s fair use doesn’t mean it is. Just because you’re a nonprofit or your podcast is for educational purposes doesn’t mean you’re entitled to a fair use defense to copyright infringement.

If you think you just might have fair use on your side, start out by reading my presentation What Is Fair Use?, and then contact an attorney to advise you on what to do.

I wish using music in podcasts was easier and more affordable, but this is the world that Congress, in their infinite wisdom, has created. Happy podcasting, everybody!

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  • Amanda

    I am a podcaster and I record on the go a lot. I do a lot of my interviews at bars. If there is music playing in the background of a conversation; not part of the show except that the mic happened to pick it up, can I not use any of that interview?

    • Amanda – Sorry, I just saw this comment for some reason. That’s a good question. To some extent, it depends how audible the music is. If it’s audible at all, you run the risk of a copyright issue. But if it’s just faintly playing in the background, and not highlighted, it’s not likely to be a major problem.

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  • Emily

    Hello,

    The article was fantastic, but here’s my issue: I want to run a podcast that operates in a similar manner as a radio station, in which music is played and discussed. Therefore, stock music simply wouldn’t do. The artists I would be dealing with would be primarily
    unsigned. Is there a feasible way to approach licensing in this instance? Thanks.

    • Thanks for your comment, Emily. If the artists are unsigned, you may want to contact them to ask for permission to play their music on your show. I’ll bet most unsigned artists would be all for it. Otherwise, you’re running the risk of one or more artists (or their eventual record companies) objecting to your use of their content, which could mean you have to take down a whole episode (or episodes) at some point.

  • Jon

    Hi, thanks for the information. What about a sports Podcast where there is a good chance we’ll replay a recording of a post-game interview or clip of the broadcast reaction (ESPN or TNT commentary? How could I appropriately approach this? Could it be considered fair use?

    Thanks.

    • I’d suspect ESPN, TNT, and the like are very protective of their content. Legally speaking, this might be fair use (depending on the context, the court you’re in front of, and many other factors.) But remember: fair use only comes into play as a defense when you’ve actually been sued. I suggest you look into obtaining liability insurance if this is something you plan to do, and be certain that the insurance will kick in if you’re sued for copyright infringement.

  • 家住乡下

    Hello, and thanks for your information. What if I want to make a podcast where we are talking about bible with some classical songs like “Amazing Grace” as background music?

    • The song “Amazing Grace” is part of the public domain. But any individual recording of the song might not be. So you’d have to either find a public domain recording of the song or ask for permission to play your preferred version.

  • roger

    It’s weird how putting music in a podcast can come under fire when YouTube exists…
    I’ve been running a 30min podcast and I usually put in 2-3 songs as breaks between topics and such. I talk about the songs a little, I thought it would be considered fair use, and I was also thinking of doing something like what Emily asked–doing a radio show (with mostly music) for a podcast.

    My question is, if it’s stated in the beginning of the podcast that: “no copyright infringement is intended, the music is being fairly used for non-profit and non-commercial use and is aimed at increasing the market demand for original copyrighted works rather than lessening the value,” (or something along those lines) would it make a difference in claiming fair use of the music?

    • In most cases, the music on YouTube is either licensed and paid for or is taken down.

      To answer your question, no, that disclaimer won’t resolve a fair use issue.

      • roger

        So I could be liable to pay “damages,” or would having to take down a podcast be the worst of the ramifications?
        Because the $150k thing is scary, but I don’t think that would really ever happen unless it was at a high level, and on YouTube, unlicensed stuff simply gets taken down without much legal action to the user.

        • The most likely outcome is a takedown notice, but it’s not unheard of to have a financial demand.

      • Simon Spero

        Google provides a searchable list of tracks that are covered by the various blanket licenses or removal policies here: https://www.youtube.com/music_policies

        These licenses are only for YouTube at the moment; they don’t appear to cover podcasts on Google Play Music, although I believe that podcasts are processed through Content Id.

  • Richard

    A friend and I want to start a podcast where we talk about musicians and their music and would like to play 10-20 second clips of certain songs that we are discuss during the podcast…Would we be violating copyright laws by doing that?

    • Possibly. You’re really asking if this is fair use. Please see this resource: http://lizerbramlaw.com/resources/what-is-fair-use/ – You’ll see that, unfortunately, fair use is very complicated, and it’s not easy to say yes or no to that kind of question. The best you can do is to arm yourself with knowledge of the rules of the road.

      • Ralph

        Hi David,

        I had a similar question to this. If our podcast aimed to have musicians comment about other musicians/band’s work and play 10-15 second clips in between, does this fall under fair use? and do you think we will run into problems even if we are only giving small samples of each track and encourage our listeners to purchase the whole album itself as sort of a promotional tool to help the market share/sales for said album?

        • There’s no definitive answer. What you’re describing sounds like it might be fair use. Encouraging them to buy the album to help sales is a nice gesture, but I’m not sure it’ll make much of a difference from a legal perspective.

          • Ralph

            Thank you David!

  • Aaron Marx

    How does this work with classical music on YouTube? There is so much. Do you think those have all paid licensing fees? Would the orchestras be losing out on royalties since most of that music is public domain?

    • If they’re running ads, there is probably a licensing agreement. In any case, the compositions (depending on when they were composed) are likely in the public domain, but the audio & video may not be. Particularly if they are newer recordings.

  • Tom DeGennaro

    Short of contacting each copyright holder, what is the easiest way for a small podcast with minimal resources to legally play a song on their podcast? Would a disclaimer (or something along those lines) have any effect? If the answer to my first question is “there is no easy way”, what’s the best alternative? Making a YouTube playlist and direct their listeners to that? I’m a young attorney unfamiliar with copyright law. Thanks for the input, I look forward to listening to your podcast!

    • You guessed it – there is no easy way. A disclaimer doesn’t cure copyright infringement.

      Making a YouTube or Spotify playlist is a good idea. You could also embed the YouTube clips (or Spotify, etc., if they allow embedding) in your show notes.

      • Tom DeGennaro

        Thanks!

      • siftshow

        Tom is my lawyer.

  • Jay Billups

    Thanks for the great information. If I’m playing local music, small labels and unsigned artist, can I have them sign a form to allow me to play their music?

    • Generally speaking, if they’re not signed to anybody, and they don’t have a publishing deal for the songs they write, you can have them sign an agreement to let you play their music. Of course, I’m not your lawyer and YMMV.

      • Jay Billups

        Thank you – I broadcast over the radio (station pays royalties) and record the show for upload later. I think I’ll strip off any music just be safe and direct people to a iTunes playlist

  • Charlotte VR

    Hi David,
    My boyfriend is a local unsigned artist, he has many songs that he would like played on podcast. What would be the best way for him to get his music played? Thank you

    • I’d say he should just reach out to the podcast hosts or producers and offer his songs.

  • Jigga.

    The post was so great, it made me read every comment. Okay David, it’s my turn to ask questions. If I make my own music, do I need any type of license then? And let’s say I use a sample that’s not obvious? There has to be a way where I can play music on a podcast and not get fined a billions dollars for doing so. I mean like they making it seem like they are not already rich, for the lower 98% to at least use the music as a non-profit recreational hobby. And they wonder why we go crazy.

    • I’m glad you enjoyed the post.

      If you write and record your own music, you own it, so no license is required.

      Samples do require licenses (even if they’re not obvious.)

      I get your concerns…copyright law is very old and hasn’t changed substantially in the era of podcasts.

  • Richard Chiles

    Great post, David. Is there any law relating to how clearly audible music is? If, for example, I were making a podcast about a certain album, could that album be played low in the background for the duration of the podcast? Thanks!

    • The law doesn’t make a distinction with respect to how audible the music is. If it’s audible at all, then it’s an issue.

  • Engager

    Hi David – very nice post. Wondering what your opinion is on the following: I’ve got a client who wants to re-record a portion of a classic song for his podcast – but wants to change the lyrics in a light-hearted way to reflect his message. I realize both podcast licensing AND parody and fair use is a complex subject. But given the variables – not the original sound recording, used in a podcast, not charging for the podcast, lyric changes that are in no way offensive, it would seem to me it’s unlikely that licensing would be unwarranted. I told him to be safe he might should contact Harry Fox and explain the situation – but on 2nd thought I wonder if their standard answer is simply to obtain a license irrespective of whether it is truly needed. Thoughts?

    • There’s no way for me to really answer, particularly without hearing it…but it sounds like you have some of the bases covered. Listen to my podcast episode about fair use for some info about parody with respect to songs with changed lyrics: http://ProductsOfTheMind.net/FairUse

      • Engager

        Thanks David – looking forward to hearing your podcast.

  • emsterz

    Hi David, thank you for the post. Do you know if the same law applies if I
    a) use music made from other countries, not US?
    b) create and publish podcast outside of US?
    I know these days with the internet location doesn’t really matter, but I’m not sure how copyright laws apply across borders in general? Thanks!

    • Good questions. The rules are similar across most countries, but not identical. But generally speaking, you will need the same permissions regardless of where the music originated and where you are located.

  • Josh

    Great information, David, thank you. I have been thinking of doing a podcast similar to some described in the comments, a radio type format where I play recordings and discuss them. The recordings in question are a large collection of jazz 78rpm records that my father collected from the 1920’s and 30’s and left to me when he died. Would these still have active copyrights that I would be infringing?

    • Most likely the recordings and/or the compositions would be protected by copyright.

  • CN

    Hi David,

    I’ve been looking at Jamendo licensing to obtain a license for a track to use as an intro and outro to my podcast, which is being produced as project for the company I work for – although we will not charge for access to it in any way. It will be available both for streaming via a website and SoundCloud, as well as download/subscription via iTunes and Google Play.

    When I contacted Jamendo about whether this would require their “standard” or “large” license, they told me the standard would be okay for the purpose, but that since we intend to use the track across multiple episodes as a recurring theme, it would require multiple licenses. They then started asking how many episodes we plan to release a month, etc.

    This seemed a little weird to me, but after reading more about the complicated music licensing world, maybe it’s not weird at all. I just thought that being a “royalty free” site, I could purchase one license that fit the use case and be done with it..?

  • Eric Tegethoff

    Hey Dave,
    I was wondering where this would come to play if I played a clip of someone singing at karaoke, or even if a song was playing in the background? I’m assuming this would fall under the premise of someone performing a copyrighted song. Anyway, I thought the karaoke aspect might complicate things.

  • Adekunle Adewunmi

    David,

    What are the rules for using a song off of Youtube as a podcast intro? I want to use 1 minute for my podcast intro and outro. I just need a song for my intro and outro and it will only play for 30 seconds to a minute.

  • Balint

    Hey,
    great article!
    I just wanted to ask, what is the situation for using songs from the Youtube audio library.
    I would upload a podcast episode to Youtube and would just “reuse” it and distribute as a podcast. So the Youtube version would be protected by Youtube. The podcast (mine) would use only content from my Youtube channel. Is my thinking correct?
    Cheers

  • yumtacos

    Hi David. Local educators & therapists asked me to create a podcast for them to help soothe ADHD and sensory-disorder afflicted kids. I was thinking of public domain recordings of simple piano music, and maybe emailing Philip Glass to ask him for permission to include some of his work, plus public domain / CC-licensed ambient sounds. The place I got concerned was with their idea of including some very old (1930s-1960s) recordings of stories – for instance, Peter Ustinov reading Peter and the Wolf. The music that it’s set to is by Prokofiev, long dead, so I’m not sure there’s an issue there; however, SOMEONE must own the rights to the recording of the story and music, but if I can’t figure out the chain of ownership today, should I just avoid using those tracks entirely? Oy.

    • Those would presumably be protected by copyright, so unless you can find who owns the recordings, you should probably avoid using the tracks.

    • Simon Spero

      1. Copyright in sound recordings made before 1972 doesn’t expire until February 15th 2067.
      2. There are some exemptions for educational performances, but I don’t think they apply here.
      3. The work was published on the Angel label, which is owned by EMI.

  • Excellent post. Thanks for the info.

    A question: I have an LGBT podcast that covers news and entertainment stories, including LGBT singer/songwriters. I get pitches from the publicists of these musicians to do interviews with the artist and play/promote their new music in the podcast. I’ve done dozens of interview segments like this. Is that breaking the law? I’ve always assumed if I’m interviewing/profiling/promoting the artist’s new music they would be happy. If I have emails from the artist or their publicist acknowledging the promotion, am I still in trouble?

    • While I can’t give specific legal advice, I’d say there may be an implied license to play the music if you’re interviewing them and allowing them to promote their work.

      • Thanks for the quick reply. That’s what I assumed, but wasn’t sure. I’m guessing promoting an artist’s music without their presence on the podcast – “This week xxxxx artist dropped their latest single. They told Billboard Magazine it was inspired by xxxxxxx, take a listen…” – would not be permissible?

        • Well, to answer that I’d direct you back to this blog post.

  • Will Duchon

    Question: What about the use of classical music recordings? My podcast is simply a piece of poetry followed by a piece of classical music. The composer is long dead, of course, but the performers on the recording are not. Also, what about the use of jazz recordings? Basically, I’m wondering if I need a license to use classical and/or jazz recordings in my podcasts.

    • The info in this blog post applies to any genre. Recordings of classical and jazz pieces are in most cases subject to copyright protection, even if the compositions are not.

  • Darth Shady

    Where are the courts on the issue of retroactivity of licenses. So, for instance, a podcast has been using music unaware it has been committing copyright infringement, becomes aware of its infringement, and wants to get a license. What about the use that occurred prior to the obtaining of a license? Still an infringement?

    • I suppose so, unless the license states that it’s retroactive.

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