Dear Doc:

During this social isolation, I’ve started a new hobby…I’m a podcaster! I record myself saying fascinating things and then I publish the audio files on the Internet. Lately, I’ve learned that podcasts are more interesting if you use music to mark “intros”, “outros” and transitions. Please tell me that I’m not going to get in trouble by using music that I download from the Internet.

The Phantom Podcaster

Dear Phantom:

There are a lot of myths out there in pod-land about what you’re legally permitted to do with music on your podcasts. The Doc is here to set the digital record straight about three of them.

Myth 1: You may have heard that giving credit to the songwriter makes it OK to use her song in your podcast. WRONG! Although it’s nice to give credit where it’s due, plagiarism (use of someone’s content as if it’s your own) and infringement (unauthorized use of someone’s content) are different. Plagiarism is an ethical concept, while infringement is a legal one. You can have one without the other. (See below for how expensive it can be if you infringe.)

Myth 2: You may also have heard that you’re allowed to use music, as long as you don’t take more than 10 seconds of it. WRONG! In order to include someone else’s music in your podcast, you need permission from the holder of the intellectual property rights. This permission is called a “license” and when we are talking about commercial music, things get complicated in a big hurry. You see, most songwriters don’t own the rights to the song they write – they give those rights to a record label, and it, in turn, uses a rights management agency. There is no rule like the old food-on-the-floor five second rule for copyrights. Even using a little bit is not permitted. In most cases, getting a license to use a song is terribly expensive so most podcasters do not try. Be warned, though, getting caught is even more expensive — potential damages may be up to $150,000 per infringement!

Myth 3: Finally, you may think that if you’re not making any money with your podcast, then you can use all the music you want. WRONG! While not making money may reduce the actual damages you might have to pay when you lose an infringement law suit, the commercial nature of your use is only one factor for determining “fair use.” A “fair use” determination involves a complex analysis of many factors by a judge during a trial.  If you’re too cheap to pay for music, you won’t be happy paying your attorney to defend you in court!

So, PP, how can you use music in your podcasts? The simple answer is to write the music yourself! Then you can use it any way you want. Not talented enough? Another way is to license music. Check out SoundStrip if you’re interested.  If you’re too cheap for that, then search the Internet for music that is under a Creative Commons license. That way, you will have a good podcast, and you won’t get in trouble.

Are you developing new hobbies while you’re isolating and social distancing? Do you need good advice about intellectual property? Contact one of the attorneys at LW&H. They’ve been socially isolated since the 1990s, so they are really good at it by now.

Until next month (when he hopes to be able to go to the store).

The “Doc”

— Lawrence A. Husick, Esq.