Previously, I covered the question “Why can’t I play music on my podcast?”
Today, I just want to clear up another misnomer that I often hear, and that is about “fair use”. It will usually be in the form of “It’s okay if you only play 15 or 20 seconds of a song, right?”
Now, again, before delving into this difficult question, let me start this answer with this legally important statement.
I am not a lawyer. I do not provide legal advice. The information I provide here should not be considered legal advice. I am presenting this only from the perspective of my point of view on the subject. If you really want to know the legal side of this issue, I urge you to find a qualified attorney in your area.
Well that’s covered now, let me get back to the question, Can I play music under fair use rules?
This is a term that allows you to play a limited amount of copyrighted music without specific permissions from the copyright holders. But this is an ambiguous rule and is often interpreted on an individual basis. You won’t know for sure if what you’re doing is legal or not until you have been brought to court and a judge rules your individual case.
Yes, this is ambiguous…
In short, there are a few factors that will work in your favour…
First, if you’re doing a review of some sort. Let’s say your podcast reviews the latest music releases or something. You might be OK with playing a short (and I mean very short) snippet of music for discussion. Let’s say there is a drum solo in the middle of a song’s path. Something like “might be fine”. Note – I said “maybe”. This is not fine.
When brought to court, if that’s all that the copyright holder has, it will probably go well for you. But then you should only look at the cost involved until you are approved to play the small 20-30 second clip of music. It might have been cheaper to just buy the copyright. I mean, attorney and legal fees, time taken. Travel, testimonials, etc.
“Well, brother Bob, I’m just a little podcaster and I don’t have a lot of people following me. Sure, they wouldn’t waste their time stalking me, would they?”
When you start out, you may have a few followers. But no podcaster realizes he doesn’t follow their download numbers and always hopes for more. What would happen if the podcast went viral six months from now?
Each subscriber has access to all your episodes. If one of these is just one of the artists in the music in your podcast, they may decide to see if you actually pay their royalties. They have earned it. It is part of their income. You are legally obligated to pay it.
In this example, given the number of downloads you’ve now received, a court “could” hold you liable for damages. What is the price? (Again, in my best lawyer voice… it depends…).
If you are the owner of a private non-commercial podcast and you are really acting in good faith and not trying to market the song, or trademark the song, etc., you may only be fined about $500. But – go up from there!
If you use it in a commercial endeavor, such as as part of your training program, etc., fines can be up to $150,000 or more.
And let me add, that’s $150,000 per song!
In some cases, courts have decided that there is a fine for each episode in which the song is played!
Now, I’m going to use my podcast, “The Kingdom Cross Roads podcast”, as an example. For recording, I use music that I own the rights to. But, let’s just say I picked a song from one of my favorite groups and used a short 30-second clip to open and close. This is two uses per episode. I have over 900 episodes. That is 1800 uses.
Even at a $500 per use fine, (the lower end of the exact spectrum) I would have looked at a $900,000 fine if I had been found guilty of intentionally violating copyright and royalty laws. I’m not saying that’s the fine I’ll get. But that’s the amount I could face if I was taken to court and found guilty of intentionally breaking the law.
That’s why, for my podcast-training clients, I stress how important it is to purchase the rights to use music when creating their intros and outro. Or to use the “No Copyright Music” you do the same through the platforms that provide that music. Keep the licenses on file! just in case.
My best advice is to simply follow the law, spend the money to buy the rights up front, and you’ll be fine.