Beware of Music in Your Podcasts – SoundExchange, ASCAP, BMI and SESAC Don’t Give You the Rights You Need

DavidOxenford.WBKLawThis guest column is by broadcast attorney and frequent guest contributor David Oxenford. The article was originally published on hisBroadcast Law Blog.

Last week, I listened in to presentation by RAIN News providing an excellent overview of the digital music industry (their Whitepaper setting out the findings reported during the presentation is available here). One statement in that presentation suggested to me today’s topic – the use of music in podcasts. In the RAIN presentation, a statement was made that most major podcasts are spoken word, but no explanation of that fact was provided. One of the biggest reasons for the lack of music in podcasts has to do with rights issues, as the royalties paid to SoundExchange and even to ASCAP, BMI and SESAC don’t apply to traditional podcasts meant to be downloaded onto a digital audio recording device like an iPhone or any other smartphone. We wrote a warning about this issue a couple of years ago, but as the popularity of podcasts seems to once again on the rise, the warning is worth repeating.

The rights that a broadcaster or digital music company gets from ASCAP, BMI and SESAC (commonly called the “PROs” or performing rights organizations) deal with the public performance of music. The PROs license the “musical work” or “musical composition” – the lyrics and the notes that make up the song. They do not license particular recordings of the song. As we have discussed before in other contexts, a public performance is a transmission of a copyrighted work to multiple people outside your limited friends and family (see our discussions here and here). SoundExchange’s royalties also deal with public performance – but it is licensing the public performance of the sound recording – the words and music as recorded by a particular artist. And SoundExchange only licenses such performances where they are made by a non-interactive service – where the user cannot determine what songs it will hear next (and where the service meets certain other requirements – see our article here for some of those additional requirements). Podcasts don’t fit within the SoundExchange limitations, and while there has been some debate about whether the PROs have any licensing role in the podcast world (see this article), additional rights from music publishers (who usually control the musical composition copyright) are also needed.

Why? A traditional downloaded podcast involves not the right to public performance of music, but instead the right to the reproduction and distribution of that music. The rights of reproduction and distribution are different from the public performance right, and the permission to make reproductions and distributions are granted by different groups than are the public performance right. SoundExchange and the PROs have nothing to do with granting this reproduction and distribution right (with the limited exception of ephemeral rights in streaming granted through the SoundExchange royalty – a concept too technical to be discussed here, and one that does not affect this warning. But, if you are interested in these rights, you can see our article that discussed ephemeral rights in a bit more detail, here). Podcasts, downloads and on-demand streams require a specific grant of rights from the copyright holders of the sound recordings and the musical compositions for each piece of music that is being used. Podcasts are really like downloads – which also involve the right to reproduction and distribution.

Rights to the sound recording of most popular recorded music will typically come from the record label. And, for these sorts of on-demand uses, the rights to most recorded music will usually not be cheap and easy to obtain. Rights may come easily only for specific songs that the labels want to promote – sometimes referred to as “podcast safe” music. This music is usually a song from a new artist, or an alternate take of a new song by an established artist, meant to be used to promote a new release. Getting rights to the full catalog of music typically played by a music-intensive radio station will require a negotiation with each record label and the payment of significant money – the kind of negotiation that has delayed the introduction of services like Spotify in the US for so long, which is why you typically don’t have music radio stations making available podcasts of their entire morning show. Maybe the comedy bits will be available, but rarely will the whole show, with the music, be provided in a podcast.

Note that there are some exceptions, where “archived programming” that may in some ways look like a podcast, may be made available through an on-demand stream that can be covered by a SoundExchange license, but these will rarely be podcasts in the formula that most people think of them. They must be available for streaming, not download. And, under the Copyright Act, such programs must be at least 5 hours in length, and cannot be kept available for more than 2 weeks. So they don’t make for very comfortable podcasts as most people think of such programs.

Rights to reproduction and distribution of the musical composition typically come from the music publishing company (or sometimes music publishing companies where there is more than one writer of a song). These licenses—known as “mechanical licenses— can be obtained through a statutory license, setting out payments to the copyright holders of any musical work that has been publicly released, but only if some strict procedures set out by law are followed (see our articles here and here). These rights can also be obtained directly from the publishers or songwriters or, in many instances, through the Harry Fox Agency, which licenses compositions on behalf of many copyright holders. There are also a number of private companies that will help in getting the necessary licenses to use the musical composition. Depending on the use that you have in mind, the record companies may themselves have already cleared the right to the musical composition, and that right will come with the right to the sound recording when you negotiate for that right. But needless to say, it is not an easy process that will allow routine podcasts or downloads of music programming.

Even the podcast of the performance of a local artist, with his permission, may require a mechanical license from the songwriter or music publisher if the artist has been singing “cover” songs. So be careful when recording local artists – you may think that you are getting their music royalty free, and you may be avoiding the sound recording royalty and a negotiation with a record label, but you may still have the musical composition to deal with if the local performer is performing someone else’s songs.

There are lots of other caveats and exceptions that may apply in certain circumstances – like the “fair use” exception (see our article here). But these don’t allow the routine podcast of music programs or the other types of uses described above. So be careful – or you may have the music industry knocking at your door demanding an unexpected payment.

Brad Hill