Can I Play Music On My Podcast Under the Fair Use Rule?
before, I covered the question “Why Can’t I Play Music on My Podcast?”
Today, I just want to clarify another wrong name I often hear, which is about “Fair Use.” It will usually be in the form of “It’s OK if I only play 15 or 20 seconds of a song, right?”
Now, again, before I get into this tricky 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 am providing here should not be considered as legal advice. I am only offering this as my perspective on this topic. If you truly want to know the legal side of this issue, I urge to seek out a qualified attorney in your locality.
OK, now that has been covered, let me get back to the question, “Can I Play Music Under Fair Use Rules?”
This is a term where you are permitted to play a limited amount of copyrighted music without specific permissions of the copyright holders. But, this is a vague rule and is often interpreted on an individual basis. You will not know for sure if you what you are doing is legal or not until AFTER you are taken to court and a estimate rules on your individual case.
Yes, it is that vague…
In a nutshell, there are a few factors that will work in your favor…
One, is if you are doing a review of some sort. Let’s say your podcast reviews the latest music releases or something like that. You are probably OK to play a short (and I average very short) snippet of music to discuss. Let’s say a drum solo about half way by the song. Something like that “might be OK.” Notice – I said “might.” Not that it IS OK.
When taken to court, if this is all the copyright holder has on you, it will probably go well for you. But then, you must look at the cost involved just to be approved to play that little 20-30 second clip of music. It probably would have been cheaper to just buy the copyright. I average, lawyer and legal fees, time involved. Travel, depositions, etc.
“Well, brother Bob, I’m just a small podcaster and I don’t have that many people following me. Surely, they will not waste their time going after me, right?”
When you first start out, you may just have a handful of followers. But there is no podcaster I am aware of that doesn’t follow their download numbers and is always hoping for more. What happens if, six months from now, your podcast goes viral?
Every subscriber has access to all of your episodes. If one of those just happens to be one of the artists in the music on your podcast, they may decide to see if you are truly paying their royalty fee. They earned it. It is part of their income. You are legally required to pay it.
In this example, because of the number of downloads you have now received, the court “could” keep up you liable for damages. How much? (Again, in my best lawyer voice… that depends… ).
If you are a private, non-commercial podcaster who was truly acting in good faith and not trying to market the song, brand the song, etc. You could only be fined about $500. But – it goes up from there!
If you were using it a commercial endeavor, such as part of your coaching program, etc., the fines could be up to $150,000 or more.
And let me add, that is $150,000 PER SONG!
In some situations, the courts have determined there is a fine PER EPISODE the song played in!
Now, I’ll just use my podcast, “The Kingdom Cross Roads Podcast,” as an example. For the record, I use music that I have the rights to. But, let’s just say I picked a song from one of my favorite groups and used a short 30 second clip in the open and close. That is two uses in each episode. I have over 900 episodes. That is 1,800 uses.
already at $500 fine per use, (the lower end of the fine spectrum) I would be looking at $900,000 in fines if I was found guilty of willfully violating the copyright and royalty laws. I am not saying this is the fine I would receive. But this is the amount I could be facing if I was taken to court and found guilty of willfully violating the law.
This is why, for my podcast training clients, I press how important it is to buy the rights to use the music when creating their intro’s and outro’s. Or to use “Royalty Free Music” which you are doing the same thing by the platforms that provide that music. KEEP THE LICENSES on file! Just in case.
My best advice is to simply follow the law, use the money to buy the rights up front, and you will be OK.