Can I play music on 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 that I hear often, which is “Fair Use.” It will usually be in the form of “It’s okay if I only play 15 or 20 seconds of a song, right?”
Now again, before we get into this delicate question, let me start 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 topic. If you really want to know the legal side of this problem, I urge you to find a qualified attorney in your area.
Okay, now that it’s been covered, let me get back to the question, “Can I play music according to the fair use rules?”
This is a term where you are allowed to play a limited amount of copyrighted music without the specific permissions of the copyright holders. But this is a vague rule and is often interpreted on an individual basis. You won’t know for sure whether or not what you’re doing is legal until AFTER you are taken to court and a judge rules on your individual case.
Yes, it’s that vague …
Simply put, there are a few factors that will work in your favor …
One is if you are doing a review of some kind. Let’s say your podcast reviews the latest music releases or something. It’s probably okay to play 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 this “might be nice.” Look – I said “could.” Not that it’s okay.
When they take you to court, if this is all the copyright holder has, you will probably be fine. But then you have to look at the cost involved just to get approved to play that little 20-30 second clip of music. It would probably have been cheaper to buy the copyright. I mean, attorneys and legal fees, time involved. Travel, bowel movements, etc.
“Well brother Bob, I’m just a little podcaster and I don’t have 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 there isn’t any podcaster that I know of who doesn’t follow their download numbers and is always waiting for more. What if, six months from now, your podcast goes viral?
Each subscriber has access to all of its episodes. If one of them turns out to be one of the music artists on your podcast, they might decide to see if you’re really paying your royalty fee. They earned it. It is part of your income. You are legally obligated to pay it.
In this example, because of the number of shocks you have now received, the court “could” hold you liable for the 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. You could only be fined $ 500. But, go up from there!
If you were using it for a business endeavor, 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 is played.
Now, I’ll just use my podcast “The Kingdom Cross Roads Podcast”, as an example. For the record, I use music that I have rights to. But, let’s say I picked a song from one of my favorite bands and used a short 30 second clip on the blink. 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 lower end of the penalty spectrum), I would be seeking $ 900,000 in fines if I was found guilty of intentionally violating copyright and royalty laws. I am not saying that this is the fine you would receive. But this is the amount I could face if I was taken to court and found guilty of willfully breaking the law.
That is why, for my podcast training clients, I emphasize how important it is to purchase the rights to use the music when creating your intros and outro. Or to use “Royalty Free Music”, which is doing the same through the platforms that provide that music. KEEP LICENSES on file! Just in case.
My best advice is to just follow the law, spend the money to buy the rights up front, and you’ll be fine.