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The trouble with tunes – Approaches to using music in podcasts

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Presented at Podcast Movement 2019
by Gordon P. Firemark, Esq. – The Podcast Lawyer

Using music in podcasts is a challenging, 4-stop shopping process of licensing that has long deterred podcasters from incorporating quality musical tracks. This presentation explains why, and calls for a streamlined approach.

Published in: Law
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The trouble with tunes – Approaches to using music in podcasts

  1. 1. The Trouble With Tunes Approaches to Using Music in Podcasts Gordon P. Firemark, Esq. The Podcast Lawyer™
  2. 2. Gordon P. FiremarkThe Podcast Lawyer™ Entertainment, Media, Intellectual Property, Business Law https://firemark.com https://thepodcastlawyer.com https://entertainmentlawupdate.com https://podcastlawforms.com
  3. 3. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Agenda • Types of Music Use in Podcasts • Sources for Music in Podcasts • Music Copyright Fundamentals • Licensing and Permissions • Solutions • Looking Ahead
  4. 4. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Types of Music Use in Podcasts • Intros/outros • Interstitial • Undescore • Primary Content • Countdown Shows • Review shows • Artist Features • Etc.
  5. 5. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Sources for Music in Podcasts • Composed for hire • Production Music libraries • Needledrop • Royalty-free • Buyout • Subscription-based • “Mainstream” music (Commercial, Pop, etc.)
  6. 6. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Music Copyright • What is Copyright? • The exclusive right of the author or owner… • To reproduce the copyrighted work in copies or phonorecords; • To prepare derivative works based upon the copyrighted work; • To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; • In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; • In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and • In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. §106
  7. 7. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Music Copyright – Continued Two (2) copyrights to consider: • Musical Composition - covers the words, music and arrangement and is owned by the songwriter(s) or music publisher 17 USC §102 • Master Recording -- works that result from the fixation of a series of musical, spoken or other sounds…owned by the recording artist or record label
  8. 8. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Music Copyright – Continued • What is infringement? • Use of any exclusive right without permission/license of the author/copyright owner.. • Damages can range from $750-$150,000 per infringement (each episode = an infringement)
  9. 9. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Music Copyright – Continued • What about “Fair Use”? • 4 factor analysis • Purpose & Character of Alleged Infringing Use • Amount & Substantiality of Portion Taken • Nature of Original Work • Impact on Market for the Original • Transformativeness • Risks • Ad Hoc determination - no rules of thumb • Territorial Limitations
  10. 10. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Licensing and Permissions • What Kind of Permission is needed? • Musical Composition: • Streaming = Public Performance (ASCAP, BMI, SESAC, etc.) • Download = reproduction that requires a “mechanical” license, but… • Permanent Digital Download (PDD) • Interactive Stream • Both PDDs and Interactive Streams require mechanical license - usually obtained via Harry Fox Agency (harryfox.com) (but note that HFA does NOT control all songs…)
  11. 11. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Licensing and Permissions • What Kind of Permission is needed? • “Master” Recording • Podcasts using recordings of songs are “digital audio transmissions”, which triggers two different rights • Stream = Digital Public Performance - Direct License (not SoundExchange) because it’s “interactive” • Download = Reproduction (Master Use) - Direct License.
  12. 12. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Licensing and Permissions What Kind of Permission is needed? 1. Public Performance (PRO “blanket” license) (Composition) 2. PDD Mechanical License (Harry Fox) (Composition) 3. DPP (direct license) (Recording) 4. Master Use (direct license) (Recording)
  13. 13. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ How to find the owner(s) and request permission/license • Liner Notes • ASCAP.com • BMI.com • google, wikipedia, etc. -to track down the record label
  14. 14. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Solutions • Stock Music Libraries • Must read the license to make sure it covers your intended use.,.. Don’t rely on the words “royalty free” • Pros -- easy, cheap, one stop shop • Cons - it’s library/production music , not the latest chart toppers... • Hire a composer and musicians to create original music for your show. • Get proper contracts so the results are “works for hire”, or at least licensed properly.. (buy-out?) • Hybrid - Hire musicians to re-record pop songs, and use PRO license and mechanicals via HFA • Hire a person, firm or service to handle clearances for you…
  15. 15. © 2019 by Gordon P. Firemark —The Podcast Lawyer™ Looking Ahead • What’s needed? • Standardized licensing regime - one (or two) stop shopping • A standard royalty structure? • A compulsory license? • Blanket Licenses? • Subscription Music Services • This week’s big announcement from SoundExchange and Source Audio
  16. 16. Gordon P. FiremarkThe Podcast Lawyer™ Entertainment, Media, Intellectual Property, Business Law https://firemark.com https://thepodcastlawyer.com https://entertainmentlawupdate.com https://podcastlawforms.com
  17. 17. The Trouble With Tunes Approaches to Using Music in Podcasts Gordon P. Firemark, Esq. The Podcast Lawyer™

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