Content and Music Licensing for Podcasters: Using Music, Media, and Video Content in a Podcast
By Justin M. Jacobson, Esq.
Adding “Podcast Host” to your resume? There has been a growth in podcasting, including a large increase in overall podcast “listenership.” This expansion includes podcasts hosted by individuals and celebrities as well as those created by businesses who are either launching or purchasing a single show or an entire podcasting network. As a result of the increased audience, different entertainment and media companies have taken their own approach to monetizing podcasting. For example, some entities are spending millions of dollars to acquire existing successful podcast shows and networks; while, other media businesses are launching their own podcast shows or networks. In fact, digital streaming service Spotify reportedly spent a total of “$400 million” in a series of large content acquisitions for a variety of existing podcast shows and networks. These purchases included acquiring the Joe Rogan Show and the Bill Simmons Podcast as well as purchasing podcast networks Gimlet Media and Parcast. Conversely, Amazon created its own new podcast network, “Audible Originals” to provide its own exclusive original content, including works from entertainers such as “Carrie Coon, Christian Slater, Kevin Bacon and Yvette Nicole Brown.” In addition to well-known celebrities, journalists, and other on-air talent hosting their own podcasts, there has also been a rise in individuals, industry professionals, and businesses hosting, creating, and distributing their own podcasts. In all of these cases, it is crucial that a podcast operator is aware of their various legal rights in any of the broadcasted material, especially if they incorporate or use any music, sounds, videos, animations, text or any other protected third-party intellectual property in their recorded and publicly distributed podcast.
Podcast Usage of Music, Images, Photographs, Videos and Other Third-Party Media
One of the most important considerations for many podcasters is the usage of media content during their broadcast, especially the inclusion of another party’s sound or video clip. There are several specific legal principles applicable to a podcast that incorporates an existing song, sound effect, video, photograph, animation, or any other recorded sound in a live or taped episode. A guiding concept for these situations is that in cases where the podcast host is utilizing and playing any pre-existing material or any works that are created by another individual, the podcaster must obtain prior written authorization or consent from the appropriate owner(s) of the work, typically in the form of a written contract called a “license.” This means that prior approval is required for any material that the host did not independently create on their own or purchase outright from a third-party. This legal requirement specifically applies to a podcaster’s use of any original or pre-recorded music, sound effects, images, videos or even the incorporation of another person’s recorded voice.
Podcast Usage of Licensed Popular Music, Royalty-Free Music, Sounds, and Audio Clips
The proper and legal usage of music and other pre-recorded sound clips in a podcast is a particularly unique situation as there exists two copyrights in every recorded track. These two copyrights include the sound recording (SR) copyright as well as the underlying musical composition (PA) copyright. Since these two distinct rights in a song exist, a podcast wishing to incorporate licensed music into their content must receive prior written permission from both owners of a copyright in a song. While some musicians possess the full copyrights in their work, a podcast show trying to fully license a popular or well-known song for an episode may be required to deal with several business entities for proper clearance, including working with a recording label and/or a music publishing company.
As a result of U.S. copyright law, there are a variety of potential licenses that must be obtained to properly incorporate a third-party song into a recorded podcast, including ones needed for the legal use of an existing mainstream or “popular” musical track. These required clearances could include a combination of a mechanical license, a public performance license, a digital transmission license and potentially a synchronization or “synch.”
What is a Mechanical License? Why a Podcast Operator Needs One (or Two)?
First, a mechanical license may be needed for the distribution of a podcast, because the copyright owner’s mechanical right in a song is triggered when a copy of the podcast is made and publicly transmitted. This licensable transaction occurs when a digital copy of a copyrighted audio recording is made and commercially distributed to the consuming public. The creation of the digital file mandates that the podcaster obtains the proper clearance to play the third-party audio on their podcast, including by potentially paying a licensing fee and/or royalty to the appropriate rightsholder. To effectuate this payment, a podcast operator might utilize a music licensing company that administers mechanical rights on behalf of musicians and other entertainment companies, such as the Harry Fox Agency. Furthermore, if a podcaster is playing their own “cover” song of an existing third-party work during an episode, then the host might also be required to obtain a separate mechanical license to legally play the “cover” song on their podcast. This additional mechanical license could be retrieved by using an online licensing system such as Harry Fox Agency’s digital licensing software, “Songfile.”
What is a Public Performance License? Who Issues Public Performance Licenses?
In addition to a mechanical license, a public performance license is also required for a podcaster to publicly play another party’s song or recorded sound clip. The internet broadcast of the podcast initiates the song owner’s exclusive right to the public performance of their musical work. As a result, a podcast host or content network is required to obtain a license from the appropriate rights holders. In many of these cases, a podcaster can receive the mandatory license from a performing rights organization (PRO), including licensing societies such as ASCAP or BMI (in the U.S.). In fact, to expedite the licensing process, many of these rights management organizations issue “blanket” licenses that authorize the podcaster to publicly perform any of the musical works contained in their respective catalogue.
What is a Digital Performance License of Sound Recording? What is SoundExchange?
In addition to a public performance and a mechanical license, written authorization is also required for the digital distribution of a podcast containing another party’s sound recording. Specifically, the broadcasting of the sound clip in a digital transmission triggers another one of an owner’s rights in an audio recording. This is because the activity of distributing the recorded podcast on the internet prompts the need for a podcaster to obtain the rights to publicly perform, reproduce and distribute copies of the copyrighted sound recording (as distinguished from musical composition (PA)). This requirement exists because the public performance license available from a performing rights society, such as BMI, only permits the podcaster to publicly perform a “cover” of an existing song on their podcast. As a result, the obtained rights authorization only includes the right to use the musical composition (PA), which contains the track’s lyrics. However, if the host or network desires to play an existing sound recording (i.e., an existing MP3 or WAV file) during a podcast, then the podcast host is required to directly obtain a license from the sound recording’s owner or from a third-party rights organization on behalf of its holder.
When determining the appropriate licensing avenue, a podcaster must first determine whether the podcast is available for “on-demand” listening or not. (17 USC §114) If a podcast is unavailable for “on-demand” listening and it just airs live without the existence or creation of any recorded or publicly accessible copy of the finished podcast, then the required digital performance license can potentially be obtained from a third-party rights management company such as SoundExchange. In these cases, the licensing organization issues the appropriate licenses in exchange for a fee paid by a podcast network. The amounts paid differs based on a variety of factors, including the podcast’s listenership as well as whether the podcast is a commercial or a non-commercial one. However, if a podcast incorporating another’s existing sound recording is recorded and available for “on-demand” consumption, then a license cannot be obtained by using a third-party entity such as SoundExchange. Instead, in these instances, the appropriate authorization must be obtained directly from the sound recording’s owner which in many cases is a record label.
What is a Synch License? Video Podcast Needs a Synchronization License
Furthermore, and in addition to the above licenses, if a podcaster plays a musical track in an audio-visual or other recorded video format, then the podcast host must obtain a synchronization license, referred to as a “synch” license, from the owners of the song. Synch licenses apply to the use of music by any party in any audio-visual work, including in a television show, a motion picture, a video game or a commercial.
Another related consideration for a podcast operator to be aware of is that even if a podcast host is a major artist or musician or is credited on a track, the talent might not necessarily possess any or all the rights in a song (including their own) as well as, the individual might not have the ability or right to license the work. As a result, if a show or network plays a host, a guest or non-host’s music live on the air, the podcast network is still required to properly license the audio prior to playing it. Therefore, even if a musician is appearing on a podcast to promote their own music, the podcast operator must still obtain all proper clearances for both copyrights in the music, even when the artist plays their own recorded song or if they are performing the music live. These facts further reiterate the benefits and need for a proper written agreement with any podcast hosts and/or guests to ensure that the podcast network possesses the rights and licenses that it requires to operate legally, including any rights to incorporate and play the music in a podcast episode.
Alternatives To Paid and Licensed Podcast Music – Commissioned, Royalty-Free Music and Libraries
If podcaster does not desire to incorporate existing mainstream or popular sound recordings, there are several alternatives to obtain legal music for podcast usage. One option is by paying for original music from a third-party musician, including from an upcoming or even an established musical creator. This artist would then either license or assign their rights in the audio work to the content distributor in exchange for some form of payment, residual royalty payment, author credit, or a combination of all of these. This transaction could be in the form of the podcaster purchasing or directly licensing the commissioned original audio from the creative by executing a written contract that provides a full written copyright assignment or license of the created work from the creator to the podcaster. This arrangement might be fashioned as a “work for hire” or an independent contractor relationship. In fact, it is prudent for a podcast host to contract for and acquire rights in and to any third-party contributions. This requirement applies to works made by any other person involved in a recorded podcast, including securing rights from the creator of the show’s anthem as well as from the individual responsible for the creation of any “intro” and “outro” music.
When a podcast host is unable or unwilling to license or commission original music or audio for a show, the operator has some other alternatives to receive usable music. One of the available options is utilizing a work under a “Creative Commons” license. However, a Creative Commons-licensed work is subject to several restrictions, including specifically prohibited from being utilized for a “commercial” purpose. Therefore, this route is potentially unavailable to many podcast networks, especially those desiring to generate revenues from their show. (Justin M. Jacobson, Esq., The Essential Guide to the Business & Law of Esports & Professional Video Gaming, 160-162 (CRC Press 2021)) If a podcast does not produce income from its podcast, then the host’s incorporation of Creative Commons-licensed work in a podcast must also comply with the credit requirements specified by the author as well as include any required copyright notices that accompany the licensed work.
Since the “Creative Commons” license is only available for non-monetized podcasts, another option for a paid podcast operator might be to utilize “royalty-free” sounds. If a podcaster is unable to purchase royalty-free music, there are musical creations that are completely “copyright free” or “no copyright” ones. (Justin M. Jacobson, Esq., The Essential Guide to the Business & Law of Esports & Professional Video Gaming, 160-162 (CRC Press 2021)) This description means that the work is completely free to use because no creator has asserted any copyright in the sound recording or attempts to claim any rights in the audio clip at all. (Justin M. Jacobson, Esq., The Essential Guide to the Business & Law of Esports & Professional Video Gaming, 160-162 (CRC Press 2021)) As mentioned, there are also “royalty free” sound clips that can be purchased for use in a podcaster’s video or audio episode. In many cases, a “royalty free” track might have an initial payment or license fee to use the audio work for a specific purpose, such as in a commercial podcast. The podcast network’s use would be considered “royalty free” because their operator would not be required to make any additional or subsequent payments known as a residual or “royalty” payments to the original creator to continue to utilize the originally licensed audio clip.
In addition to “copyright free” and “royalty-free” licensed music, a podcaster can also acquire rights to licensed sounds from a music library or other licensed music catalogue. Many of these music licensing services provide “blanket” licenses for podcasters that permit the usage of any media contained in their “library” in exchange for a one-time payment or a monthly or annual subscription fee.
Using Artwork, Text, Trademarks, Photographs, Images and Video Clip In a Podcast
Similar to the usage of a pre-recorded or original sound clip in a podcast, any artwork, video, or photography that a podcaster utilizes to market or that are incorporated into a podcast, such as any cover or intro artwork, must be either an original work of the host or it must be licensed for use from the creator or other proper copyright owner. Thus, a podcaster might commission original images, animations, logos, podcast cover artwork, or audio-visual works that would be owned by the network. These creative works would be used subject to any existing rights agreements entered with the original creator of the work. This rights transfer should ideally be memorialized in a signed document that provides any and all rights to the podcast network, including the authorization to use the work as the podcast network desires, including for any and all commercial, marketing and promotional purposes in any medium now existing or invented hereafter.
Furthermore, a podcast host is required to obtain the proper licenses from the various rightsholders of the protected work to incorporate a film or television video clip in a recorded podcast. These works might be licensed by a television network or production company or by a film studio or distributor or sometimes by the director or original filmmaker. Similarly, for a podcast to incorporate any written text authored by someone else, the podcast network must secure the express permission of the copyright owner of the material. This requirement applies to the usage of any written words that appear in a blog post, a book, a journal entry, a magazine, or a newspaper article. These types of work may be licensed by the original author or from a third-party business such as a book publisher, a newspaper, or a magazine distributor. Finally, if a podcast uses another company’s trademark or trade name in a commercial context, it is beneficial for the host to include a reference to the existence of registered trademarks of the other company in the podcast show notes as well as incorporating an “on-air” mention and acknowledgment of the company’s existing rights in the protected mark during the podcast itself.
In conclusion, it is apparent that the public use of another party’s copyrighted material invokes a series of licensable transactions that every podcaster must be aware of. In fact, in response to the arduous music licensing process, licensing organization SoundExchange partnered with a third-party service to connect podcasters with labels and rights holders to create a more streamlined music licensing process and to better facilitate a podcast host or content network’s acquisition of proper licenses. This new partnership reportedly enables all podcasters to receive “a global license for all rights needed to use feature music in a podcast, including master use, performance, synchronization, and mechanical rights.” Therefore, due to the complex nature and potential monetary liability and other copyright infringement issues, it is crucial that any publicly shared or distributed podcast, containing another party’s audio is properly licensed, especially those podcasts that are created and operated for profit.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
© 2022 Justin Jacobson Law, P.C.