Podcasting is a crowded space, and creators want their shows to stand out. But with few exceptions adding others’ music to enhance a podcast is a dangerous way to achieve that.
There’s a common misconception among podcasters that there’s a “fair use law,” which allows some leeway in the inclusion of copyrighted audio. Podcaster Cassandre Dunbar, host of the Be Well, Sis podcast shared this confusion. “I’ve found the fair use laws to be difficult to navigate,” she says. “For the first two seasons, I had a 30-second music break where I played [from] a song whose theme was relevant to the episode, while citing the artist verbally and again in the show notes with a clickable link to their site.” She then learned that she was potentially opening herself up to litigation so cut the clips. Dunbar laments that “the removal of the music break takes something away from the overall vibe of the podcast.” But based on attorneys’ explanations of fair use, it was probably the right move.
“It would be difficult to imagine a situation where a 30-second clip from a song could be deemed a fair use,” Douglas Mirell, an attorney at Greenberg Glusker and expert in first amendment issues, says. “Song clips in particular have significant market value, especially for use in television commercials and other ad campaigns.”
Anne Kennedy McGuire, the head of Loeb & Loeb’s podcasting division, says the idea that podcasters can safely use short snippets of others’ audio is a “rule” she frequently hears about from clients. “I have to dispel this myth at least every other week,” she says. “There is no hard and fast ‘rule’ that will make a podcaster ‘safe.’” In her assessment, adding others’ music is dicey. “Using 30 seconds of a song is often very risky,” she says. “Songs are typically not that long to begin with and courts have considered the ‘substantial’ portion of a song to be only one or two lines in some cases, especially if it’s a particularly iconic song.”
Attorney Clarissa Harvey also finds herself having to clear up confusion about fair use with her clients. “The biggest misunderstanding is thinking that fair use is a right,” she says. “Instead, fair use is a defense that you use in court after you have been sued and named in a copyright infringement lawsuit. This means a podcast host must be hauled into court in order for a judge to provide a definitive answer on whether a particular use is fair use or not.”
And if the court decides that there is copyright infringement, the penalties are significant. “In the U.S., unauthorized use of music can expose the infringer to up to $150,000 in statutory damages, plus additional damages such as attorneys’ fees,” attorney Michael Poster, Michelman & Robinson’s Music Acquisitions & Financing Chair, says.
So what are risk-averse podcasters in need of music to do? Mirell recommends that professional podcasters have errors and omissions insurance and that they expand their audio searches beyond today’s Billboard charts. “Search out material that has fallen into the public domain (e.g., ‘Happy Birthday To You’) or utilize, with appropriate attribution, content that has been licensed through Creative Commons,” he says. Another way to avoid copyright infringement risk is to pay a fee for a music library (the audio version of Adobe Stock for images), or creators with a bigger budget could find an up-and-coming musician and commission an original score. But if podcasters are set on venturing into the (unlicensed) copyrighted material territory, Kennedy McGuire cautions “less is more is always best.”