Can I play music in my podcast under the fair use rule?
Previously, I covered the question. “Why can’t I play music on my podcast?”
Today, I just want to clear up another misnomer I hear often, which is “fair use.” It is usually in the form of “It’s okay if I only play 15 or 20 seconds of a song, right?”
Now again, before I get into this trick question, let me begin this answer with this legally important statement.
I am not a lawyer. I do not offer legal advice. The information I provide here should not be construed as legal advice. I only offer this as my perspective on this subject. If you really want to know the legal aspect of this problem, I recommend that you find a qualified attorney in your area.
OK, now that it’s covered, let me get back to the question, “Can I play music under the fair use rules?”
This is a term where you are allowed to play a limited amount of copyrighted music without specific permissions from the copyright holders. However, this is a vague rule and is often interpreted on an individual basis. You won’t know for sure if what you are doing is legal or not until AFTER you are taken to court and a judge rules on your individual case.
Yes, it’s that wave…
Simply put, there are a few factors that will work in your favor…
One, is if you’re doing a review of some kind. Let’s say your podcast reviews the latest music releases or something. You’re probably okay with playing a short (and I mean very short) piece of music for discussion. Let’s say a drum solo in the middle of the song. Something like that “might be okay”. Notice: I said “could”. It’s not that it’s okay.
When they take you to court, if this is all the copyright holder has on you, you’ll probably be fine. But then you have to consider the cost involved just to get approved to play that little 20-30 second clip of music. It probably would have been cheaper to buy the copyright. I mean, attorney and legal fees, time involved. Trips, declarations, etc.
“Well brother Bob, I’m just a little podcaster and I don’t have that many people following me. Surely they won’t waste time chasing me, right?”
When you start out, you may only have a handful of followers. But I don’t know of any podcaster who doesn’t follow their download numbers and always expect more. What happens if, six months from now, your podcast goes viral?
Every subscriber has access to all of its episodes. If it turns out that one of them is one of the artists on your podcast’s music, they may decide to see if he’s really paying their royalty fee. They earned it. It is part of your income. You are legally required to pay it.
In this example, due to the number of downloads you have received, the court “could” hold you liable for damages. How much? (Again, in my best lawyer voice… that depends…).
If you are a private, non-commercial podcaster who actually acted in good faith and did not try to market the song, flag the song, etc. He could only be found for around $500. But – go up from there!
If you were using it for business purposes, as part of your training program, etc., the fines could be up to $150,000 or more.
And let me add, that’s $150,000 PER SONG!
In some cases the courts have determined that there is a fine PER EPISODE in which the song was played!
Now, I’ll just use my podcast, “The Kingdom Cross Roads Podcast” as an example. For the record, I use music to which I own the rights. But let’s say I chose a song from one of my favorite bands and used a short 30 second clip at the beginning and end. There are two uses in each episode. I have over 900 episodes. That’s 1,800 uses.
Even with a $500 per use fine (the low end of the fine spectrum), I would find myself facing $900,000 in fines if found guilty of willfully violating copyright and royalty laws. I’m not saying this is the fine you would receive. But this is the amount I could face if I were taken to court and found guilty of willfully breaking the law.
That’s why, for my podcast training clients, I stress how important it is to purchase the rights to use the music when creating your intro and outro. Or to use “Royalty Free Music” which is doing the same thing through the platforms that provide that music. KEEP YOUR LICENSES come on! Just in case.
My best advice is just follow the law, spend the money to buy the rights upfront and you’ll be fine.