• Paul I. Menes

Want Your Podcast to Be Cast Away? Then Know the Rules for Using Music In Podcasts.

Podcasts were growing in popularity before the pandemic, with some of the more popular ones, like “Smartless”, “The Joe Rogan Experience”, and Logan Paul’s “Implausive” having millions of listeners, and being accessible on a variety of platforms.

But their numbers have exploded since, with more and more people creating their own, trying to cash in on their popularity.

Many podcasts, like other programing, use recorded music as an important component of the experience. But, your podcast can get taken down, and you can get sued, if you don’t have the proper licenses to put music in them.

I’ve heard podcasters say, and have had them tell me: “Podcasts are just like radio, right? I just need performance licenses from the performing rights societies (BMI, ASCAP, SESAC, and GMR), to put music in my podcast”.

Uh, no. It’s true that one should get performance licenses from all the performing rights societies, since smart speakers like Alexa and other devices stream podcasts. But other licenses must be obtained to legally use music in a podcast. Here’s why.

A podcast isn’t like traditional radio, or the non-premium levels of streamers like Pandora, Spotify, or Apple Music, where you listen to music programmed on a channel, and can’t determine what song will be heard next. They’re noninteractive.

Podcasts are considered interactive because the listener can listen to them on demand. This is similar to on-demand streaming, where a listener can choose a particular song, or create a custom playlist. This interactivity makes obtaining additional licenses necessary (which the licensors don’t have to grant, or can charge whatever they want for a license).

Music in podcasts involves two sets of copyrights and owners. One is for the underlying musical composition/song, which is owned by the writer or the song’s publisher. (If that song has more than one writer, there may be multiple publishers, as well as writers). The other is for the recording of that song, which is usually owned by the record company for which it was recorded.

The owners of copyrights have several exclusive rights in them, that they can use or license to others. One is the right to make copies of their copywritten work and distribute them. Another is the right to make “derivative works”, which is when the copywritten work is modified in some way. For songs, this can involve changing its lyrics, or joining it with other content. For recordings, using a sample of a recording in another recording, or joining it with other content, are examples.

To legally use a song and recording in a podcast, a license must be obtained from both the song and recording owner(s) to make copies and distribute them, and to create derivative works of them. This is because both the song and recording are each a component of the podcast, creating an on-demand use of the music. Podcasters have been sued, and their podcasts shut down, for not obtaining these licenses.

Finding these copyright owners, especially for major label or popular releases, can be a difficult and

frustrating process. There may be multiple songwriters of a composition (and multiple publishing companies which likely own the copyrights). The rights to the songs and recordings may have been transferred over time from their original owners.

To further complicate this, there’s currently no universal databases that provides up-to-date and complete records of who owns those copyrights.

So, what’s a podcaster to do? Some podcasters commission original works from local or indie artists. They’re also more likely to own both the song and recording copyrights for their music, since they usually write and record it. There are now some online services and music libraries that clear all the rights to music (mostly indie music, not major label releases), and license that music to podcasters for set fees.

This takeaway should be pretty evident – get all the licenses you need to use the music you want in your podcasts. If you don’t use could be left singing that old sad (and expensive) song, “The Copyright Infringement My Podcast Is Toast Blues”. Just Sayin’ …TM


Paul I. Menes

The Influencer Lawyer ®

pim@pmlegal.law

www.PMLEGAL.LAW

(323) 741-6500


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