Using commercial music in a podcast

One of the things many podcasts have is a theme tune or signature tune, which sets the tone for the show. Others centre around discussing music from any genre, which usually means presenting a quick clip.

But can you use commercial music in your podcast?

If you have cleared worldwide commercial rights from the artist, publishers, and any other rights holders, yes.

If you have purchased and/or agreed it with a Royalty Free licence, yes.

If neither of the above applies, you may not use that music in your podcast.

• It may cause you legal issues.
• It may get you barred from certain streaming services.
• It is contrary to the Terms And Conditions of Use for Audioboom, and we may well suspend you until you correct the issues.

What about "fair use"?
"Fair use" and "fair dealing" - at least in the form discussed on internet forums - are largely a myth.

The US Copyright Act (1976) enshrines four basic use cases where Fair Use can be proven. But they mostly work in practice as a legal doctrine in a defence. They don't actively stop a rights holder from suing you in the first place, and incurring a substantial amount of expense and trouble. 

For a more detailed guide to what is or is not Fair Use, visit:
https://schoolofpodcasting.com/fair-use/

Secondly, podcasts are distributed worldwide, not just in the USA: and under the Berne Convention, local laws apply wherever the material is made available, not where it was published.

So if your podcast was created in the USA, but can be heard in, say, the UK, France or Australia, a rights holder can simply take action in their most legally favourable territory, regardless of where the podcast was made.

For the absence of doubt:  there are no lengths of sample, circumstances, or conditions for which you can legally use someone else's copyright music in a globally-distributed podcast without the correct permissions.

What about sampling or remixing?
No, sorry. According to the letter of the law in the US and other countries, in order to create "derivative works" like these, you still need permission from rights holders. (Not just the artists: whoever owns the master recordings and other local and worldwide rights). For more guidance: 
https://djtechtools.com/2012/03/25/legal-concerns-for-digital-djs-should-i-worry-about-copyright/

Can I get a licence?
Various national licences are available from organisations like PRS and APRA. But having one licence in one territory does not cover global use of content.

What if my podcast isn't monetised?
Whether you're making money from your show or not, publishing and distribution is still a problem. (Making money off the back of it might just make it that little bit worse in the rights holders' eyes.)

What happens if I go ahead anyway?
There are a number of services that search the Internet to look for unlicensed music, using recognition technologies like GraceNote. They check it against approved sources, and issue semi-automated legal takedown notices to violators. If we receive one of these and verify it, your podcast may be suspended until you resolve the issue.

Services like Spotify are also now automatically scanning new submissions for music. This may result in your podcast being blocked by those services without warning or appeal.

Finally, if we discover an account is being used for delivering music including copyrighted music, we reserve the right to suspend or remove that account without warning or appeal. 

What should I do instead?
We cannot legally advise you to use music - even short clips for discussion purposes - without clearances.

• Write to the owner or artist, setting out what you want to do and why. If you get a positive response, save it carefully. But please bear in mind that many artists don't manage their own music rights, and may not be legally able to grant you permission.
• If you want to discuss music extensively - for example, for a podcast about a particular style of music - consider composing a public Spotify playlist or Apple Music playlist so that users can listen to the full length tracks at their leisure.
• If you just need to find a good tune to add colour to your podcast, why not support one of the many artists who make Royalty Free collections available to purchase. Licences generally cost around $10-$30 per track: but some artists have entire libraries across dozens of genres available under one licence.

I'm an artist (or their legally appointed representative) and copyrighted music was used without my permission
If the podcast is hosted by Audioboom, please file a DMCA claim with us and we will investigate.