Music on podcasts has been, especially in the amateur and semi-pro space, a problem basically since the medium has existed. Podcasts are by default distributed and consumed globally, and therefore there’s a really complicated tangle of different copyright laws and jurisdictions to unravel if you are going to try and correctly licence commercial music for an episode.
I see a lot of questions about this all the time in podcasting support forums, the most common being “can I use part of this hit song for free because I live in the US and it’s ‘fair use’?”. The answer, of course is no, you cannot. Fair use is not a feature of copyright law in all the places around the world where your episode will be available to listen to (we don’t have it in the UK, for instance) and therefore it’s pretty meaningless in this context.
Even if you do manage to find a way to pay the right people for your clip, it won’t come cheap. Podcast publishers (and radio broadcasters) that do use commercial music on the regular set aside big chunks of their annual budgets for it. And then there can still be problems. One of the BBC’s flagship interview programmes, Desert Island Discs, revolves around guests playing segments of favourite songs, but the musical clips are often shorter in the podcast version than on the radio. In addition, some episodes from the archive can only be downloaded without any music at all, because securing the rights for music initially broadcast decades ago for podcast use today is just too complicated and expensive.
Some producers and publishers just choose to take the risk and use the music anyway — smaller podcasts in particular are prone to this way of thinking. But, as podcasting becomes more prominent and better understood in the wider media sphere, that risk just keeps getting riskier. There have been a few cases of record labels belatedly coming after shows that have used their music without proper permission, sometimes waiting until a podcast is a hit before launching the lawsuit (so that there is an actual company to sue, most likely). This case begun last year by Universal Music Group is a good example.
As a result of this apparently intractable problem, many shows big and small have turned to composers to help them out with original music. Paying for your own commissions removes any copyright issues, as well as giving your show a soundtrack that no other podcast will have (a problem that any serious listener knows all about, having heard the same Garageband library stings on dozens of different shows).
But there remains widespread interest in the podcast industry in a proper legal and licence-based solution to the issue of commercial music — many producers I’ve spoken to about this over the years feel like it’s only a matter of time before the music industry catches up to the demand in podcasting and comes up with a solution. This announcement from Podcast Music earlier this month of a deal with SoundExchange was cautiously hailed by some as a possible first step.
However, there doesn’t seem to be any actual deals with record labels yet that might put commercial music in the Podcast Music library, and even if these “global licenses” do appear, they’ll only be available for purchase by US-based podcasters (other territories will have to sort out their own deals based on their local legislation, as I understand it). One person I corresponded with about this — Ian Wheeler, who both runs the Partisan Records label and publishes music podcasts under the Talkhouse banner — was sceptical that a significant number of artists or labels will ever opt into the kind of deals Podcast Music seemed to be promising.
“As a label owner, and especially artist manager, blanket licenses just tend to be really unpalatable. . . The money usually isn’t great and you run the risk of your song being used in a way that doesn’t align with the artist’s ethos,” he told me via email. Permission to use music does sometimes get granted on a case by case basis, of course, as happens for the film industry, but the kind of “all access” deal that would see a song by, say, Beyoncé, placed in a podcast music library is pretty unlikely. “Getting paid very little and not having the ability to vet each use (as is the case with blanket licenses) is a pretty big bummer for the majority of artists, and one really bad song placement can do a lot of damage to morale,” he added.
However he does see one bright spot that gives him hope for a workable solution to the music-on-podcasts conundrum, and that’s the fact that Gimlet has hired music supervisor Liz Fulton, someone in this space who Wheeler really rates. “It tells me that one of the very biggest players is ready to take music licensing seriously, and I hope that labels and music publishers will reciprocate by understanding that podcast budgets, even at the highest levels, aren’t nearly at the same mark as TV or film budgets,” he said.