Podcasting — a guide to Podcasting legally (not to be used as actual legal advice)

“I’m going to make a Podcast!” You cry. You pick your favourite John Denver song for the episode intro because you just love the energy and enthusiasm he brings to every tune. Uh oh! Angry letter in the mail.

How could you have avoided this? Well, that’s what this guide is for. The legal dos and don’ts of Podcasting!

Most people approach the legalities of Podcasting like this:

Which is fine, until…

This guide is not intended to replace anything a lawyer would say.

I should stress, a lawyer hasn’t even looked at this. However, these are the most common questions I’ve had to answer in my role as Head of Content for a Podcasting platform.

Can I use this song I downloaded in my Podcast?

Look, probably not. But let’s go deeper…

First of all, if you are ripping an MP3 and using it as an introduction for your show, you are almost definitely infringing copyright. Even if you paid $1.69 on iTunes for it. Just because you “own” a piece of music doesn’t mean you can use it.

When you use a song in a Podcast, there are two copyrights you are infringing:

• The Reproduction Right: This is the most obvious breach when you use music in your Podcast. The copyright holder has the right to “make copies of” their work. When you pull music into your Podcast, you are making a new reproduction of the work, and therefore probably infringing this right.
• The Public Performance Right: Anyone who makes music also has the exclusive right to perform it publicly. It is still undecided whether simply making a Podcast available for download violates this right, but do you want to take on Katy Perry’s lawyers just to use “Dark Horse” for your Podcast intro?

What if I made the song myself?

Define “made”?

If you recorded all the instruments, assembled all the pieces and sung all the lyrics into your own microphone — then probably, yes. You own the copyright in this musical composition and the sound recording.

Some pieces of software gives you “royalty free” samples and instruments to use (meaning they assign the copyright into the sound recording of the instrument to you, under certain conditions). For example, if you assemble anything in Garageband — using Apple’s loops — then this is yours to use as you wish.

Diplo. What a legend.

However, this doesn’t mean you can just put “I Have a Dream” to a beat and expect to get away with it. Copyright protection of a recording means you cannot “duplicate or rearrange” any sound you find and didn’t create. In other words, as one court put it, “get a license or do not sample”.

What about karaoke? If you belt over the top of an instrumental, that is definitely dodgy too. Even if you recorded all the instruments and reworked the lyrics slightly there will still be copyright in the underlying work (that is, the musical composition and possibly the lyrics, depending on how many words you changed). Also as Ford found out in 1988 when they got a sound-alike to record Bette Midler’s “Do You Want to Dance” there might also be a claim in “misappropriation of identity”. In short, you don’t wanna mess with the Midler.

OK, can I replay someone else’s interview?

No! Oh Jesus, no. Not only does this offend the person who originally made the recording, but potentially their publicity rights in another person’s “image, likeness or voice”. Again murky area — because you might be able to argue that your Podcast was “news or public affairs” but all the exceptions are deliberately broad so the Judge can have a field day with someone if they choose.

You could create your own recording of something — but if that recording is of a work that itself attracts copyright (for example rolling a U2 concert into your iPhone, or recording stand-up comedy down at the pub) then you’re still in the legal naughty corner.

Also, I should mention if you recorded an interview for your Podcast, then it makes sense that you can use that audio. Here, consent is your best friend — which you can easily prove by getting your interview subject to say on tape that they agree for you to use the interview.

Can I read out an excerpt of something I found?

Ok, based on what I’ve said so far, what do you think?

“oh…. umm…. hmmmmm”

The text you read out, but didn’t write, is definitely a “work” subject to copyright. The text doesn’t even need to be that creative — reading aloud the instruction manual of your dishwasher is bad.

OK, OK I get it — I can’t use stuff that someone else made.

Can you at least give me something to say to the Judge?

First of all, what not to say:

• “But, I only used (smallnumber) % of the original work!”
• “But I acknowledged where it came from!”
• “But I put a disclaimer that said I didn’t own the work!”

None of these are excuses in law and will leave the fancy-wigged figure behind the oak bench shaking her or his head while making sad “tsk” noises.

However, here are some arguments you can make. Don’t forget, the great thing with law is there is no “right” or “wrong” — just arguments you can make on either side. The more you make, the more chance you have of the judgment falling on your side. Unfortunately with copyright if you didn’t make the thing you used, you’re probably on the back foot. But still, try these:

“I made it myself!”

(see sections above)

“It was for a ‘transformative’ purpose!”

Aaaah good one! Fair Use! The next question you’ll get is of course, “tell me more about your transformative factor.” This is where you get to trot out arguments such as:

• I was using it for criticising/commentating/parodying/news reporting/teaching!
• I only used (smallnumber) % of the original work! (now it’s OK to argue this because you led with a fancy word like “transformative”)
• The work is of such a nature that is warrants smaller protection! (finally, the dishwasher instruction manual Podcast comes to life!)
• I’m just a tiny Podcast! I made this in my parents’ basement and I only have 100 listens tops! (otherwise known as the use of copyrighted work didn’t really affect the use of that work on a real life grown up business market)
• C’aaaaaaarn. Gimme a go. I’m a good kid! (otherwise known as the “fifth fair use factor” — which really means if the Judge likes you…. they can be swayed).

“It’s Super Old”

Yes, very clever! You can use works that are in the Public Domain! The law in this area is very tedious, and has a lot to do with Disney being able to continue to protect Mickey Mouse.

Steamboat Mickey

However, if you can prove that the work is indeed in the public domain you are allowed to use it. Here’s a very long and complicated chart that gives you some idea of when things enter the Public Domain.

I have a license…

Can you prove it? Yes. OK good! Case dismissed.

Uh huh! I’ve got it — I need a license! Tell me more about these “licenses”…

Errrrgghhh … boring! But OK I’ll give it a go.

There are 3 licenses that you’ll probably need:

1. Reproduction and Distribution of Musical Works
2. Public Performance of Musical Works
3. For Reproduction, Distribution and Public Performance (By Digital Audio Transmission) of Sound Recordings

#1 is what goes to the writers/creators of copyright works. Google “Harry Fox” to get these. #2 changes from country to country — Google Soundexchange. In Australia it’s APRA/AMCOS. Unfortunately, wherever you look it’s expensive and very complicated. #3 has a lot to do with record companies and usually you can only get these licenses by dealing directly with them. Unfortunately it means that for most people, using a Katy Perry track in a Podcast becomes practically impossible.

Oh 30 Rock, how I miss you.

I’m bored….

Sorry! Here’s the good news — there are a few places that make licensing easy.

The most famous is “Creative Commons” licenses. Thankfully, someone invented a word for sound recordings safe to use in Podcasts. That word is “Podsafe” and Googling it will give you some good places to start. There are some rules around Creative Commons licenses — for example, you may have to give credit and attribute it to the author of the original work in a certain way. The license might also be restricted in that you also might have to leave it “as is”, use it non-commercially or “share-alike” by also licensing your own Podcast under Creative Commons.

Also, just because someone steals a Queen album and distributes that copy under “Creative Commons” doesn’t mean you get off scot free. Most CC licenses contain “disclaimer of warranties”. In other words, you need to be fairly certain that the person created the work they are giving to you under this license.

But I’m lazy. I am perfectly willing to pay someone to solve this problem for me…

Great! Thankfully, because of the recent advent of Podcasting, there are a few one-stop-shops with attribution-free, completely licensed music and sound effects to use in your Podcasts.

Woot Woot!

I’ve been scrolling through this article quickly because it was about the law and the law is boring. Just tell me — where can I download legal music for my Podcast?

Ta-da!

• http://audiojungle.net/ — my personal favourite. The songs have Download limits, so if your Podcast gets super popular you might need to revise your license.
• http://www.melodyloops.com/ — smaller selection, but made for Podcasting.
• https://www.stockmusic.net/index.cfm/page/podcasting.home — A page dedicated to Podcasting.
• http://www.pond5.com/royalty-free-music/ — Similar to Audiojungle.
• http://www.gettyimages.com.au/Music/Search/collection/7 — Sound Express on Getty Images puts everything into their licenses.
• https://www.youtube.com/audiolibrary/music — YouTube’s Audio Library.

Thanks for all your helpful legal advice! Where can I send the cheque?

OK once again, I must stress: this wasn’t legal advice. I hope if I use the word “guide” enough I won’t get in trouble. This was a “guide”.

However, if you like Podcasting as much as I do — you can send the cheque to Omny Studio and come Podcast with us. In my biased opinion, Omny Studio is the best one-stop-shop for everything audio management. We’d love to see you there!