One of the most frustrating things about my Ongoing History of New Music podcasts is our inability to use full songs. The most we can do without getting into any kind of trouble is offering short clips to illustrate points made by the narrative.
Even this is officially verboten. There’s a myth that it’s permissible to use 30 seconds of a song in a podcast without incurring the wrath of rightsholders. The truth is that you’re not supposed to use any amount of any song in a podcast. Here’s why.
When an artist signs a deal with a record label, it is granted the sole and exclusive right to distribute that artist’s music. When a podcaster includes a song in a production, the podcaster becomes a de facto distributor of a digital file of that song. That breaches the rights owned by the label and also opens the podcaster to charges of unauthorized duplication of a copyrighted work.
In other words, piracy.
Yes, there are podcasters who flout the rules and include songs in their shows anyway. But this is a Very Bad Idea and does open them to all kinds of legal action.
And yet, here’s the crazy thing: There is no legal mechanism for us to secure permission to include music in podcasts — any podcasts — even though you might be willing to pay some kind of licensing fee.
[Caveat: There’s something known as music that is “podcast-safe.” This tends to be material from up-and-coming indie artists who are looking for any kind of exposure to what they do. Since they own the rights to their music, they’re free to grant podcasters permission to use it.]
I’ve spent the last number of years speaking with various industry groups and record labels about the problem, hoping to find some way of making full versions of the Ongoing History radio show available as an on-demand download, complete with all the music. “Don’t you realize how much money you’re leaving on the table? Can’t we figure something out? Are you listening? WE. WANT. TO. PAY. YOU!”
Their reaction? “Oh, yeah. I guess that’s true. Good point.” And then… crickets.
Meanwhile, the podcasting world continues to grow exponentially and is now a multi-billion-dollar business. Can you imagine how much artists would love this new source of revenue?
It’s a mess. However, change finally seems to be in the air. Maybe.
An American rights fees collection organization called SoundExchange, along with a company called PodcastMusic and other known as SourceAudio, announced last week a new service that will “provide a new solution to the rapidly growing podcast industry to secure music with full integrated global licenses.”
So legal music in podcasts? Great!
Let’s start with the good news:
- There’s an agreement between SoundExchange and Podcast Music that will handle things like billing podcasters for using music, letting everyone know what songs are available, and all legal agreements with record labels.
- Er, that’s it.
The bad news:
- Podcast Music has no agreements in place with any labels. None. Zero. This is pretty much just a proposal.
- There’s as yet no user interface that would be used for billing or exploring the available catalogue.
- There’s no solution to the thorny situation of reporting and tracking the actual use of music by podcasters. In other words, there’s no way to police the situation.
- Or maybe there is. It could be that podcasts will be monitored for the use of music as is done on YouTube using AI music identification technology and song fingerprinting. That’s the plan for America, anyway. Still, it’s unclear what will happen to podcasters who run afoul of the new agreements.
- These will be global licences, meaning that all the music rightsholders on the planet will be invited to particulate. However, the songs cleared through these companies will only be available to U.S.-based podcasters. Boo.
- It’s very, very, very unlikely that anyone will have permission to play full songs. So much for podcasts featuring music mixes (unless, of course, the podcast comes from a DJ who is just presenting his/her own music to which they own the rights.
- There are a bunch of other possible wrinkles over things like theme music, especially political shows. An example would be Rush Limbaugh’s use of The Pretenders’ My City Was Gone, something that annoys Chrissie Hynde to no end. Limbaugh can use the song for his radio show regardless of what Chrissie thinks because of the blanket licenses that apply to radio. Should he want to use the song for a podcast, the chances of him getting permission are less than zero.
This is a hugely complicated issue over which many battles still need to be waged. This is but a baby step towards something better than what we have now. Which is nothing at all.
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