David: There is concept of what's called “fair use” where you can use a limited amount of a copyrighted work without specific permission of the copyright holder. However, fair use comes with all sorts of caveats, and there are no simple formulas like “20 seconds is OK.” There simply are no hard and fast rules as to what constitutes fair use. Every time I talk about digital music rights, I make clear that there is no fair use exception for a use that constitutes only thirty seconds of a song (or even five seconds, ten seconds or twenty seconds). It is a myth that if you use only one of those limited amounts of a song you cannot get in trouble.

There are no simple formulas like “20 seconds is OK.”

Instead, a fair use analysis depends on a number of different factors. One factor is the amount of the work used, but that is just one factor. Another factor is the type of use. If the clip is used in a commercial message, it is unlikely to ever be fair use. But if it is used in a news report or in an educational program, there may be a better argument depending on the other factors. Another factor to consider is whether the claimed “fair use” interferes with the ability of the copyright holder to monetize the work - for instance, if you are using the song as part of a produced intro that airs each week at the start of your podcast, that is the kind of music that an artist can be paid to produce, so it is unlikely to be seen as a fair use.

All of these factors are weighed on a case-by-case basis to see if it is a fair use, and you may not know for sure until you are sued and a judge makes the decision. But some uses are more likely to be seen as a fair use. Commentary and criticism is a traditional area where fair use is often found. If, for instance, you're doing a concert review or a review of a new album and you play short snippet of a song and talk about the guitar riff or the texture of the vocals or the meaning of particular lyrics, and you're just using enough of their song to illustrate the point that you're making, that is more likely to be fair use. But I’ve seen cases where a podcaster in a music review uses too much of the song, and the copyright holder has complained. There simply are no bright line tests as to when a use is a “fair use” and when it can get you into trouble.

Steve: There are hundreds of thousands of smaller podcasts that average just a couple of hundred downloads and there is a notion that they are so small that no one is going to listen or find that they are playing music.

David: In connection with any sort of copyright violation you always hear that argument. You may think “If I do it, no one is ever going to notice and I'm never going to get caught.” But, while your podcast may only have a few people listening at first, if it goes viral and is heard by thousands of people - which presumably is what every podcaster is hoping for - a rights holder can find out about the unauthorized use. And even if you just have a small audience, if the wrong person hears it, you may get a demand letter or some other claim for compensation.

Steve: What type of money are we talking about here?

David: There is this concept under the Copyright Act called “Statutory Damages.” That means that the copyright holder does not need to be able to prove that they were actually damaged by your use of their music. All they have to prove is that you infringed on their rights, and they can be entitled to collect damages. A court looks at the infringement and can assess damages of anywhere from $500 to $150,000 per infringed song. Noncommercial users who were acting in good faith end up at the lower end of the scale. Commercial companies, who knew that they needed rights and just didn’t bother to obtain them, end up owing higher damages.

Steve: I haven't read a lot about podcast infringement but I assume that as podcasting becomes more of a thing, infringement would become more of the thing.

David: I think that's exactly right. As you get more big name podcasters and big name players doing podcasts, you're more likely to see these kinds of lawsuit develop. We’ve recently seen a rash of cases where photographers have come after broadcasters for use of photographs on broadcasters’ webpages without permission. There are a number of lawyers who specialize in these photography cases, and they troll the Internet looking for infringement. While we have not seen that yet for music in podcasts, it certainly could happen – and no podcaster wants to be the test case.

If you are considering taking your morning show and putting it into a podcast format, take the comedy bits - don't take the music.

Steve: What about radio stations repurposing their broadcast content to podcasts?

David: None of the traditional licensing fees for broadcasting (like ASCAP, BMI and SESAC) cover podcasting. If you are considering taking your morning show and putting it into a podcast format, take the comedy bits - don't take the music.

Steve: And I would assume the same thing is true if a radio station is doing original podcast content.

David: That's correct. Most of the more established podcasters are commissioning original music specifically written and recorded for the podcast. Find a local band or musician, have them record their own music for your podcast, and pay them some money. Get an agreement in writing where the musician agrees to license their rights to your podcast, just so that no questions arise down the road. And make sure that the local musician is playing their own songs – no covers of songs written by someone else – as even the rights to the musical composition must be cleared.

Steve: What makes sense going forward?

David: I would like to see a platform created where a company that wants to do a podcast can come to one place and easily buy the rights that it needs to include specific songs in its programming. I have talked to a couple of companies that are looking at creating platforms where at least some songs are available at set prices. I hope that this kind of platform develops in a big way to ease licensing. It would benefit both the podcaster who can eliminate the licensing risks and the music rights holders who can get a new stream of revenue.

Steve: David, really helpful. So for now, there is no easy path to having general music in podcasts.

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You can follow David's excellent posts at Broadcast Law Blog.