Today I'm wading into a topic that many other podcasting pundits avoid: the legality of using copyrighted, licensed music in your podcast. But since the law isn’t the focus of Podcast Pontifications, the main thrust of my argument will center on whether or not playing licensed, commercial music during your podcast’s episodes is a good idea.
That stands for I Am Not A Lawyer. It’s dumb I have to make that statement, as I never claimed to have a law degree. If I overhear someone inquiring as to the legality of growing weed in Arizona, I’m don’t have to say, “I am not a lawyer, but it’s legal to grow six plants in Arizona.” That’s not my opinion. That’s reality.
So I don’t need to disclaim my lack of a J.D. when I state the fact that yes, it is legal to play copyrighted music on a podcast so long as the rights to the song have been cleared or the podcaster is following the fair use doctrine.
Ah. Therein lies the stickiness that causes most podcasting pundits to nope out of the conversation.
Palle Doesn’t Care IANAL
Restating my assertion that the more interesting question is whether or not playing licensed music in a podcast is a good idea, I need to give credit to Palle Bo of the podcast, The Radio Vagabond, for asking the question of me in an interesting way. Palle asked:
Lately, I’ve been dreaming about it being possible to use copyrighted music on podcasts sometime in the future. Obviously not now, but things change.
After that, I started dreaming of what I would choose to make my podcast even more interesting. Whenever I hear a song, I would think ‘Wow! That would be great to play a few seconds of to set a scene on my travel podcast.’
What are your thoughts? Will it ever happen? Should I stop dreaming?
So first, never stop dreaming, Palle. The good news is that I don’t think you have to dream. You just have to choose wisely.
Here’s the reality: Podcasters can and do use copyrighted music in their podcasts every single day under the fair use doctrine. I highly recommend reading this article written expressly for podcasters who want to use licensed commercial music in their podcasts. It’s written by Professors of Law Patricia Aufderheide and Peter Jaszi, authors of the book, Reclaiming Fair Use. I just ordered a copy this morning.
What’s The Worst That Can Happen?
OK, so two respected law professors say the fair use doctrine applies to commercial music in podcasts. But the fair use doctrine isn’t a law in and of itself, and it doesn’t spell out exactly how podcasters stay on the right side of copyright law. Hence the stickiness mentioned previously.
So what happens when someone takes a different opinion on your assumed fair use? I see two worst-case scenarios.
First, if the rights holder—like a big music label—challenges the usage, you’ll likely be faced with two paths: Capitulate, which means removing the music from the podcast episode (or episodes), which will be a bit of a pain in the butt. Or you may get a summons from the court, where you have to engage a rather expensive attorney to argue your case while even more even-more-expensive attorneys argue the counterpoint. Yeesh.
As scary as that is, it’s the second worst-case scenario that may be more likely: Playing commercial, licensed music in your podcast could get your podcast booted from directories like Spotify, YouTube, and more.
The laws that govern and limit the liability of big tech firms are coming under fire. Think Section 230, the DMCA (Digital Millennium Copyright Act), and the various international treaties and agreements. Rather than run the risk of being drawn into long, expensive legal battles, big tech platforms are utilizing algorithms to detect the use of licensed copyrighted music in the content hosted on their servers. If those algorithms—blunt instruments that have no ability to analyze fair use—discover copyrighted music in an episode of your podcast, they can remove the episode from their server. Or they can remove your entire podcast from that directory. And ban your show. Yeesh.
Good luck getting in touch with a human at those big tech firms to plead your case.
So… is it worth it? I’ll let you stew on that question while I get to Palle’s more interesting question about the future.
Will It Ever Be Easy To Use Commercial Music In A Podcast?
When Palle and I were texting on the topic, I was rather pessimistic. The rights holders are a formidable force who invest sizeable fortunes lobbying lawmakers against relaxing copyright. Quite the opposite, in fact.
However, upon further reflection, I’ve changed my tune. I've remembered that the moral arc of the universe tends to bend towards justice. And I truly believe the excellent work done by the Electronic Frontier Foundation (EFF) and other copyleft organizations will, eventually, pay off. Now, whether or not that happens soon enough for Palle to play commercial music in his travel podcast without fear of de-platforming or court summonses remains to be seen. We’re not getting any younger!
Speaking of Palle, he’s my latest coffee-supporting member, and I’d be lying if I said that didn’t influence my decision to give a public answer to his question. Membership has its privileges, and you can get in on the game by becoming a member (you automatically buy me a virtual coffee each month) at BuyMeACoffee.com/evoterra. I also appreciate one-off virtual coffee purchases too if that’s commensurate value for the value you get by listening to my thoughts.
I shall be back tomorrow with yet another Podcast Pontifications.