Will Your Podcast Get Your Pants Sued Off?

It is exciting to hear more local television and radio stations producing podcasts. But I often find myself waving a yellow caution flag to our podcast coaching clients about copyrighted music.

Music copyright infringement is potentially a huge problem for podcasters. Many folks are surprised when I bring it up. I created a game called Will Your Podcast Get Your Pants Sued Off? People start out laughing — until we discuss damages at the end.

Take this quiz, then find a good lawyer and review your podcast so you are safe and successful for years to come.

Are you ready to play? Here we go:

Q: True or false: If you pay ASCAP, BMI, SoundExchange etc. for rights to stream music on the internet and to broadcast it on AM/FM/TV, then it is OK to podcast music too.

Answer: False. May get your pants sued off.

Radio and TV stations pay for “public performance” rights. The music flows by and is not kept. A podcast is a download. Remember how upset music companies were about Napster music downloads? It is the same thing. Your podcast is a recording that can be downloaded, kept and edited.

Q: How many seconds of a copyrighted song are you allowed to play on your podcast?

  1. 20 seconds
  2. 10 seconds
  3. Zero seconds

Answer: 3.

You invite legal issues for using any part of a copyrighted song in a podcast.

Q: Which use of copyrighted music on your podcast is OK?

  1. As an opening theme to start my podcast
  2. Song clips in a Name That Tune-style game
  3. Background music bed
  4. All are OK
  5. None are OK

Answer: 5. May get your pants sued off.

In addition to the right to grant permission for use of the music, copyright holders have the right to say how their music is used.

Q: True or false: It is OK to use music on my podcast if I credit the artist and songwriter.

Answer: False. May get your pants sued off.

You must get permission, which can be done. It involves complicated legal issues with a lot of involved parties – and will likely involve you writing a check.

Q: I want to use Tell Me Something Good as the theme to my “Good News” segment, but since I cannot use the original version by Rufus, I’m hiring a musician to record an original version. To be legal, I have to pay the musician at least:

  1. $500
  2. $5000
  3. $500,000
  4. Might get pants sued off no matter what you pay

Answer: 4.

The copyright holder owns the melody and lyrics no matter who sings it. You need to obtain permission from them before using it.

Q: It is considered “Fair Use” if I use a song clip on my podcast for a:

  1. News report
  2. Concert review
  3. Album review
  4. Unsure — It’s a gray area
  5. None of the above

Answer: 4

My guess is that most of the time, short clips in a news report or critique would not ruffle feathers depending on how it is used. But there have been instances where “fair use” podcasters have heard from lawyers. It is a gray area.

It is possible to play entire copyrighted songs in a podcast — once you go through the process of getting permission. Some of my favorite shows, like All Songs Considered and KEXP Seattle’s The Weekly Mix are a great place to hear new artists and songs. There are also free or low-cost sources for “podsafe” theme music and songs.

It does not matter that your fledgling podcast is not as big as Joe Rogan’s, and it does not matter if you are a non-profit. If you use copyrighted music on your podcast, you are asking for legal trouble.

“Statutory Damages” means all the copyright holder needs to prove is that you infringed on their rights and a judge will order you to pay. “Statutory Damages” sounds expensive, doesn’t it? It is. You pay for each infringed song.

Disclaimer: I am not a lawyer. I just appreciate staying on the right side of the law. I wrote this from notes taken at Podcast Movement and from articles linked. Laws outside of the USA may vary. Call your favorite lawyer and review your podcast today.