Media and music lawyer Tamera Bennett presented Legal Issue of Podcasting with attorney Gordon Firemark. You can watch the CLE at TexasBarCLE. You can listen to the CLE as part of the Entertainment Law Update Podcast. Below is an excerpt from the CLE materials on Music and Podcasting.
Music Issues In Podcasting
Podcasting’s closest relative in the media world is traditional terrestrial radio. A typical podcast may have the feel of a talk radio show. Podcast topics run the gamut from news, sports, health, the law, politics, religion, technology, entertainment and much more. Like talk radio, music can play an integral part in the feel and a presentation of a podcast. The podcast might be solely focused on music such as a “count down” of this week’s hits, or music may be a little “icing on the cake” for transitions during the podcast.
Just like the podcast is protected by copyright, so are any songs or sound recordings that you may include in an episode of the podcast.
Exclusive Rights of Copyright Owner
The owner of a copyright has a bundle of exclusive rights:
- 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.
These rights can be licensed by the copyright owner individually or as a whole; exclusively or non-exclusively.
Song Copyright and Sound Recording Copyright In Podcasts
Whether you’re talking intro and outro bumper music, or a whole podcast dedicated to music, you have to understand the different rights attached to a music copyright along with the different music licenses that may be involved.
When discussing the music and who owns what rights, it's important to note that there are two copyrights involved in each musical recording. 17 U.S.C § 102. The copyright that attaches to the song covers the words, music, and the arrangement. Sound recordings are defined as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” 17 U.S.C. § 101. The song copyright is owned by the songwriter or a music publisher who was assigned the copyright. The copyright in a particular version of a recording is owned by the artist or record label who was assigned the copyright.
As an example of the difference between owning the song copyright and the master/sound recording copyright, recall that Dolly Parton is the songwriter of the hit song “I Will Always Love You.” Neither Dolly Parton nor the music publishing company that owns the song copyright for “I Will Always Love You,” have any ownership in the sound recording copyright for the version of the song recorded by Whitney Houston for the movie “The Bodyguard.” Nor does the record label or Whitney Houston’s estate have any ownership in the song copyright. The song and the sound recording are two distinct copyrights with different owners.
Streaming vs Download For Music In Podcasts
Because podcasts can be delivered to consumers in two different manners - streaming or download – multiple rights are triggered and need to be licensed. These multiple rights and licenses apply separately and distinctly to the song and sound recording.
Songs – Musical Compositions In Podcasts
A song copyright encompasses the words, music, and the arrangement. The copyright owner of a song has an exclusive right to license the public performance of the song as well as the mechanical reproduction of the song. A public performance of a song occurs when it is streamed as part of the podcast. This is analogous to listening to the song on the radio. If the podcast can also be accessed by download, the exclusive right of reproduction – or mechanical right – is also triggered. In traditional media, we think of a mechanical license being needed when a music compact disc or music download is purchased.
What does this mean for the podcaster who wants to include music in her podcast? In short, if the podcast can be consumed by both streaming and download, the podcaster needs both a public performance license and mechanical license whenever a song or a portion of a song is included in the podcast.
Public Performance Right For Songs In Podcasts
A public performance of a song occurs when the song is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.
In the United States, we have three major societies that collect all of the public performance payments for the various different licensees of music. Radio stations, TV networks, and nightclubs are a few of the types of businesses that publicly perform music and need a license. What is nice about the public performance licensing scheme is that you can secure a blanket license which will allow you to publicly perform all songs in the performance right society’s catalog. You don’t have to go back for individual song licenses. If you have a variety of music in your podcast and are unable to limit your music selections to those licensed by one performance rights society, you will need web licenses from ASCAP, BMI and SESAC. While license fees will vary, you can estimate a minimum annual license around $300.00 for each society.
Most podcasts are embedded or streamed from a blogging or website platform. When you go to license the rights for public performance in the United States, the licenses are not typically named a “podcast license.” At www.ascap.com the licenses are labeled for “website and mobile apps.” Search www.bmi.com under the “digital licensing center.” And, search www.sesac.com for “internet licensing.”
Mechanical Reproduction Right of Songs In Podcasts
Potentially two different mechanical uses are triggered when a podcast is accessed. If a podcast that contains music is downloaded, a permanent digital download (PDD) occurs with each individual digital delivery transmission resulting in a reproduction made by or for the recipient which may be retained and played by the recipient on a permanent basis. PDDs are sometimes referred to as full downloads or untethered downloads. Even though the song is part of and incorporated into the podcast, the use is considered a PDD and requires a mechanical license and mechanical royalty.
The second mechanical right is triggered by interactive streaming. Streaming means listening to the podcast (which contains music) in real time, instead of downloading a file to your computer or mobile device and listening to it later. There are two types of streaming: interactive and non-interactive. Streaming of content is considered interactive, or on-demand, when the listener can request the specific recording they wish to hear and the digital file is transmitted electronically to a computer or other device contemporaneously with the user's request. 17 U.S.C. § 114(j)(7). Because the end user can control when they stream the podcast, the action is considered interactive. Other examples of interactive streaming include services such as Spotify, Beats Music, Google Play Music All Access, and Xbox Music.
Both the PDD and interactive streaming of the songs require a mechanical license. Does it matter how much of the song is used? Probably not. Unless the podcaster is able to fit within a fair use exemption for using the song, a mechanical license will be required. (See 17 U.S.C. § 107 for more on fair use). The leading collective for securing mechanical licenses is the Harry Fox Association (HFA). It is very important to realize that HFA does not have the rights to every song that a podcaster might want to include. Unlike a public performance license, there’s no ability to secure a blanket license for the podcast. Individual licenses must be secured for each song. Visit “digital licensing” at harryfox.com for more information on mechanical licenses for songs in podcasts. Because HFA does not have the rights to license every song, the podcaster may have to contact individual music publishers for the rights needed.
The current mechanical rate for a PDD is 9.1 cents per song per download. The rates for interactive streams are determined by a number of factors. These include service offering type, license type, service revenue, recorded content expense, and applicable performance royalty expense.
Keep in mind the rights, licenses and rates are only for the United States. Each country has its own licensing procedures. As an example, in the UK and Australia, podcasters can license the public performance right and mechanical rights from a single organization in each respective country.
Sound Recordings or Master Recordings for Music In Podcasts
If securing the rights for the song wasn’t tough enough, a podcaster must also secure the rights for the version of the song – the recording – she wants to use. Performing the song in the podcast is a “digital audio transmission” of the sound recording. 17 U.S.C. § 106(6). With the master, two different rights are triggered. A digital public performance right and a reproduction right – more commonly known as a master use.
A podcast is considered an interactive stream because the consumer can select when they play the podcast. A podcast is not the same thing as internet radio. Internet radio is non-interactive meaning the user cannot choose the track or artist they wish to hear. The Digital Performance in Sound Recordings Act of 1995 created a statutory license for subscription-based, non-interactive digital audio transmissions. 17 U.S.C. § 114. In 1998, Congress passed the Digital Millennium Copyright Act, which expanded the statutory license to include non-subscription, non-interactive digital audio transmissions. License fees for non-interactive uses are pre-determined by a rate determining body called the Copyright Royalty Board, are non-negotiable and paid by the internet radio stations, webcasters and satellite radio stations to SoundExchange (the entity designated to collect the royalties) as a digital performance royalty. 37 C.F.R. Part 380.
You need to understand that SoundExchange cannot help you license sound recordings for a podcast. In fact, SoundExchange states the following: