The popularity of podcasting has skyrocketed. Statistics from Edison Research and Triton Digital showed that 55% of Americans age 12 and older listened to a podcast in 2020. According to 2021 Global Podcast Statistics, there are currently 1,750,000 active podcasts around the world. It seems that everyone and their cousin started a podcast during quarantine, and why not? You grab a couple of friends and some microphones and come up with an interesting topic, and you are good to go.
But there are key elements that could grind your podcast to a halt before it even begins. One of them is music: Podcast intros, segment transitions, and outros are crucial components for an enjoyable listening experience. But unapproved use of songs or music in your podcast can run the risk of copyright infringement, potentially getting you kicked off a hosting platform or preventing you from uploading to it in the first place. Here are some things to consider when sourcing music for your (soon-to-be) successful podcast.
There are a lot of misconceptions when it comes to fair use of music, and what you can and cannot do with a song. The parameters around sampling are confusing, and copyright-free listings can be misleading. The government defines fair use as “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” The key component here is “certain circumstances.”
Criticism, commentary, news reporting, teaching, scholarship, and research are provided as a few examples of circumstances of fair use, but that doesn’t necessarily mean you can play an entire song in your music review podcast. In the end, if a claim is taken to court for copyright infringement, it would be up to the courts to decide if the circumstance fits within the statutes of fair use. The Stanford University Libraries page on Copyright & Fair Use explains that the definition of fair use was intended to be vague, general, and open to interpretation. And if you use music without permission, even with honest intentions, you could wind up spending thousands of dollars on legal fees and still lose a case claiming fair use.
Entertainment lawyer Sean Mendez-Catlin, who represents ventures for music artists, gamers, and content creators in Florida, deals with copyright infringement cases daily. Catlin says the common misconception is that a music sample of 10 seconds or less constitutes fair use. There is no section of the law that indicates this as fair use, however, and doing so could result in serious infringement claims. According to Catlin, you should, “assume that any use is infringing.”
You may see YouTubers offering music that is “free to use” or copyright-free, but this is not a guarantee. For example, a producer could create a beat and upload it as copyright-free, meaning they allow anyone to use their beat, but a sample included in that song may not belong to them. Your podcast could be flagged for someone else’s misstep. The best way to avoid any possibility of infringement is to obtain permission from the song’s owner. Catlin suggests a licensing agreement, utilizing a royalty-free license, or buying the copyright outright. You can also wait until a song enters the public domain—but figuring out if that has happened isn’t always easy. (A general rule is that a work enters the public domain 70 years after the death of its creator, so this isn’t going to be a great option if you want something contemporary).
Sites like Premium Beat and Incompetech come recommended by Catlin, offering music licensing on a per song basis or with a monthly membership for continued commercial use. Premium Beat offers a library of royalty-free music for licensing, pay per song, or monthly. For $12.99 a month, you have access to five new licenses each month. With a valid subscription, music licenses can be used as much as you like in perpetuity. If you only need one or a few tracks, you can pay $49 per song for non-commercial use (on your website or for other personal use) in perpetuity, or $199 for commercial ventures. The latter amount is what you would want for your podcast—a commercial use license allows you to include music during any portion of your episodes and release them without fear of copyright infringement. Incompetech offers free and paid-to-license, meaning some songs are available for use free of charge, while others require you to pay a fee.
The important thing is to read the fine print. No matter if the license is free or purchased, it could come with specific terms and requirements you must follow. Some may require the site or owner to be credited appropriately. “If you do not copy it exactly, then you may face legal repercussions,” says Catlin.