Using Music In Your Podcast: Fair Use Or Wise Choice?

Can you use commercial music in your podcast? Few questions will shut up most podcasting pundits more quickly. But the better questions are "What's the worst that can happen?" and "Will  this ever change?"

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Hello, and welcome to another Podcast Pontifications with me, Evo Terra.

Today, I'm wading into a topic that many other podcasting pundits avoid, and that is copyright. Specifically, using licensed music on your podcast. But staying true to the spirit of Podcast Pontifications, my main focus will be whether or not this is a good idea.

Let's talk legal, just for a second here, where I must remind you that I am not a lawyer. Which is a dumb disclaimer to make, in my honest opinion, for those of us that are not attorneys. I mean, if someone asks me if it's legal to grow weed in Arizona, I don't have to preface my answer with, "I am not an attorney." I can just say, "Yes, up to six plants."

So, what's the big deal about someone answering a question on the legality of playing copyrighted music on a podcast? Yes! It's legal to play copyrighted music on a podcast so long as you've cleared the rights or are following Fair use.

Ah. There lies the stickiness.

But again, I think the more interesting question here is whether or not playing licensed music in a podcast is a good idea. This topic was inspired, actually asked, by my most recent coffee supporting member, Mr. Palle Bo. Palle has a podcast called The Radio Vagabond, and it's amazing. You should totally listen to it. Here's what Polly's question was, I'm just gonna read it to you:

"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 the scene on my travel podcast.'

What are your thoughts? Will it ever happen? Should I stop dreaming?"

Well, thank you very much for the question, Palle. Actually, a few questions you have right there.

So first off, yes, again, podcasters can and do use copyrighted music in their podcasts every single day. They employ the "Fair use" doctrine. I've linked to a great, and more importantly, podcast-specific, opinion by professors of law, Patricia Aufderheide and Peter Jaszi, authors of the book Reclaiming Fair Use. It's linked in the episode notes.

But let's deal with that more interesting question of, "What's the worst that can happen?" Well, there are two worst-case scenarios I see. First, if your use of copyrighted music in your podcast is challenged by the rights holder, you have two choices: capitulate and remove the music, which, by the way, that's a giant pain in the butt if you've done it for a lot of your episodes. Or, you'll wind up in court. You'll wind up in court, either paying expensive lawyers to defend your position or losing and then paying a gigantic fine.

Second, perhaps more reality-based here, is you could get booted from platforms like Spotify and YouTube and probably others coming very soon. Especially as more provisions to the laws that govern the liability of these big tech firms are challenged - think Section 230, the Digital Millennium Copyright Act, others.

They are now utilizing algorithms to detect the use of licensed copyrighted music in the content that they don't think should have that in there. And if those algorithms change, when those algorithms discover the music that you have used in your podcast, that you felt you were using under the Fair use doctrine, those algorithms might say, well, we know nothing about this Fair use thing, all we know was you've used licensed music in there, and therefore we're de-platforming you. We're removing the content. We're abandoning your account. There's lots of other things that they can do to you, that robots will do to you, and you have little or no recourse.

So, is it worth it? I'll let you answer that question while we talk about Palle's other question, do I think this is going to change in the future?

Now, when I was chatting with Palle about this on texts, I was rather pessimistic, but I've changed my tune. Upon reflection, I've remembered that the moral arc of the universe tends to bend towards justice. It may take a very long time, but I think that the work done by the Electronic Frontier Foundation, E.F.F., and other copyleft organizations, these people are all trying to make fundamental changes to the draconian copyright system here in America, as well as the international treaties that govern it. And I think their efforts will eventually bear fruit.

Now, whether or not that happens soon enough for you, Palle, to play commercial music in your travel podcast without fear of de-platforming or court summonses remains to be seen. Neither you nor I are getting any younger. So you never know when that's going to happen, but I do think eventually that it will.

So again, the link to that article on Fair use specifically for podcasts - this was an article written for podcasters - is linked in the episode notes. I highly recommend that you give it a read, and then you make your own decisions on what you should or should not do. That's up to you.

Palle's question was asked because, well, we're friends, and also, Palle signed up for a membership at BuyMeACoffee.com/EvoTerra. Membership has its privileges, and this is just one of them. If you have a question you want to ask me directly, I do treat the members a little better than everybody else. So up to you, what you want to do.

Regardless, I know this. I shall be back tomorrow with yet another Podcast Pontifications.

Cheers!

Podcast Pontifications is written and narrated by Evo Terra. He's on a mission to make podcasting better. Links to everything mentioned in today's episode are in the notes section of your podcast listening app. A written-to-be-read article based on today's episode is available at podcastpontifications.com where you'll also find a video version and a corrected transcript, both created by Allie Press. Podcast Pontifications is a production of Simpler Media. Find out more at Simpler.Media.

Using Music In Your Podcast: Fair Use Or Wise Choice?