Podcast Music Licensing For Outlaws

I’ve received a lot of e-mails, over the past few months, on the subject of podcasting and the legal ramifications of playing non “podsafe” music. I thought I would put together this post to open any doors and serve as a resource for anyone thinking of starting a podcast. Should you have any questions feel free to leave a comment.

Ben,

I listened to your podcast last night on my drive home. I loved it.

I’ve been wanting to do a music podcast with the stuff that I listen to for some time, but was under the impression that I couldn’t. Then, I hear music that I know and love on your podcast, and realize that the stuff I like might be podcastable after all.

But then I read about the ASCAP license that you paid (“for the cost of an iPod…”). I’d be more than willing to do that to create my own podcast, but then I see that not all the music I like is under ASCAP. For instance, if I wanted to play a Shins song on my podcast, I couldn’t do that because they are not under the ASCAP license.

So are you not able to play a Shins song? Or do you pay multiple licenses (to BMI and ASCAP)? Is this just something you pay out of your own pocket? How much did the whole venture cost you to start?

I’m trying to find out this information through research, but nothing’s clear.

I want to do this, but I’m not a rich man, nor am I an IP attorney.

Any advice?

Matt

Dear Matt,

Let me first start off and say that I am not a lawyer and everything I say is not intended for business models or as gospel. I am a dude, who loves music and finds connecting with people over music to be one of the most rewarding things I have ever done with my life.

(Pretty strong stuff huh? Hope I don’t start crying.)

Since podcasting is such an unbelievably new medium, it’s sometimes difficult to understand what you can or cannot do. ASCAP and BMI licensing for podcasters is really half of the puzzle. Just because you are licensed by them to play their music, you still technically have no right to play an individual recording. The only person who can give you that right, is the owner of the actual recording rights.

Hey Jude is owned by Michael Jackson.

This would mean the time it would take and the money it would cost to put a podcast together would be outrageous: Tracking down owners of music, securing rights, filling out forms, paying fees, and doing things which make you break out in a cold sweat in the middle of the night.

The other worry was, if I play music on my show and I distribute it to listeners, could I be charged with file trading? Those are big fines, and courts seem to love big corporations with lots and lots of money who can afford lawyers in fine silk suits.

So, I adopted the unique stance of saying “Hey, there are artists online, like the shins, who put their music online as promotional material and if I play these MP3s on my show… would the artist care? Or since they are online as promotional material, could I just assume I am using them for the bands promotion and is that covered under fair use?”

Hence I came up with the philosophy of only playing music that bands make available directly as MP3. Since then (October 2004) I haven’t received a letter from a band or label complaining about my use. In fact many of the bands I play write me thanking me and asking where I first heard their music. It also helps that I talk over the intro and outros of songs to further dissuade record companies from thinking I am distributing their music unaltered.

What I’m really saying is, you might have to go out on a limb my friend and see if it breaks. If it does, well, we’ve all got to adapt. Hell Matador started their own podcast so my well of available tunes could dry up if they pull their individual songs… but then again we’re pretty savvy folks and I’m sure we’ll find new ways to express ourselves.

Until record companies really grasp what podcasting can do for them – they aren’t going to create podcasting agreements with us, so we kind of have to break the rules until they do say “Hey that’s f-ing fantastic! Use our music!”

But hell, so I’ve heard, is still very hot.

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