There are many misconceptions regarding licensing music for podcasts. Since podcasts involve both streaming and downloading, different rights are involved than licensing music for visual media such as film and TV.
When licensing music for any type of project, keep in mind that there are always “two sides” to the license: the publishing side (for the underlying composition), and the master side (for the sound recording). Publishing rights are generally controlled by a music publisher, and Master rights are generally controlled by a record label. In the case of production music libraries, both “sides” – the Publishing and Master rights – are usually controlled by the library, which makes it possible for libraries to offer convenient “one stop” licensing.
What rights are needed to license music for podcasts?
- Mechanical License: a “mechanical license”, the right to reproduce a musical work, is involved with podcasts since podcasts are downloadable. This right pertains to the publishing side (underlying composition), as opposed to the sound recording.
- Master Use License: a “master use license”, the right to reproduce a sound recording, is involved with podcasts since podcasts are downloadable.
- Performance License (for the composition): a “performance license”, the right to publicly perform a musical work, is required since podcasts can be streamed online. However, on the publishing side, the responsibility for this license falls on the streaming service, not on the individual podcaster. Streaming services are required to pay fees directly to the performing rights societies (ASCAP, BMI, SESAC) to cover these rights; individual podcasters are not required to pay fees to these societies unless they are operating a streaming service.
- Performance License (for the sound recording): on the master side, however, individual podcasters are required to obtain a performance license for the right to use a sound recording in a podcast. This right must be negotiated directly with the record label or owner of the sound recording. (SoundExchange, the society that manages rights to sound recordings in digital streaming media, does not cover podcasts).
Are Synchronization licenses required for podcasts?
No. Sync licenses are not applicable to podcasts since they only pertain to music that is synchronized with visual media (film, TV, video, etc.).
Are podcast rights covered by the performing rights societies (ASCAP, BMI, SESAC)?
As noted above, these societies would only cover performances of podcasts on streaming platforms such as iTunes. They do not cover the other rights needed to use music in a podcast.
Are podcast rights covered by SoundExchange?
No. SoundExchange handles performance rights in connection with sound recordings on “non-interactive” digital streaming platforms such as Internet radio stations. They do not cover podcasts.
Do individual podcasters need to pay fees to ASCAP, BMI, SESAC or SoundExchange?
No. Individual podcasters are not responsible for paying performance fees to ASCAP, BMI or SESAC unless they are operating a streaming service. Regarding SoundExchange, an individual podcaster would never be required to pay anything to SoundExchange because this society does not handle podcasts.
Can a commercial song be used in a podcast without a license?
No. You will need to obtain a mechanical license from the song publisher and a direct performance license from the record label.
Can just a few seconds of a commercial song be used in a podcast without a license?
No. This is a common misconception. Any length of a song that is identifiable, whether it is 5 or 10 seconds or more, requires the licenses indicated above.
Failure to obtain these licenses would constitute a violation of copyright law.
Can “Royalty-Free” music be used in a podcast?
It depends. Read your music license carefully. Many online music sites including so-called “royalty-free” sites grant Synchronization and Master Use rights (for use of music in visual media) but there is no mention of Mechanical or Performance rights necessary for podcasts. Read your music license carefully to ensure that you are covered for the necessary rights as indicated above.
Can Production Music be used in a podcast?
Yes, as long as the production music library has explicitly granted the necessary rights as indicated above. In most cases, production music is the most convenient choice for podcasters since libraries offer “one-stop” clearance of all rights.
For a more detailed legal perspective on this topic, please refer to these excellent articles:
Note: All of the points in this article pertain to U.S. copyright law. Music licensing laws in other countries can vary significantly so be sure to consult a legal advisor if your podcast is produced outside of the U.S.
Disclaimer: The intent of this blog is to provide useful and timely information to our clients and subscribers. None of the information available in this blog should be construed as a substitute for professional legal advice.
July 5, 2018