There’s a lot of legal mumbo jumbo that goes along with obtaining the rights to get music in a podcast. Dealing with mechanical licenses, public performance licenses, direct licenses, on and on. Oh and if you overlay the music with talking, it’s a SEPARATE license!
Way too confusing. That’s the music industry for you.
I’m a big fan of podcasts. Been rocking Gimlet’s Startup and Marc Maron’s WTF as of late. In Startup, the hosts always credit the music used in each episode. Maron doesn’t do that. But he only uses occasional janky guitar to transition from his intro ramblings to the featured guest (which I assume he played for this purpose).
I was just hit up by Nathan Lively, who runs podcastmarketing.biz and the podcast Sound Design Live, with a question about how podcasters can get legal music for their shows. Well, since this is intended for musicians, I’m going to go about this the other way.
“For me, my clients, and colleagues, music is usually an afterthought. But as podcasts become more and more common, production quality is becoming more important. Some people just want a high-energy theme song to start and end the show, but others, like me, use different music in every episode. There is already so much involved in producing a high-quality podcast (I have over 60 steps in my production process!) that looking for the perfect music, contacting the artist, and working out a win-win arrangement is not very appealing. I deal with this problem by keeping of short list of artists who have already agreed to let me use their tracks. That way, when I’m in editorial deadline mode I can find something fast. I’m sure there are lots of artists out there that would like to be featured in podcasts in exchange for evergreen promotion, but there is no easy way to find them.” –Nathan Lively, podcastmarketing.biz
Unlike radio, podcasters must get a direct license to use a piece of music.
AM/FM radio pays performing rights organizations (PROs), ASCAP, BMI and SESAC (in the US) for a “blanket license” to play all the songs in their catalogs. Terrestrial (AM/FM) radio doesn’t have to pay sound recording royalties (for the artist/label), which is complete BS and the US Copyright board has recommended this law be changed for years, but alas, congress and special interests. It’s a non-starter.
Digital radio (Pandora, Sirius/XM), though, pays BOTH composition performance royalties (to ASCAP, BMI and SESAC) AND sound recording performance royalties (to SoundExchange). As clarification, composition performance royalties go to the writers (and publishers) of the song and sound recording performance royalties go to the artists (and labels) of the recording. So if you recorded Alabama Shakes “Don’t Wanna Fight” and it played on Pandora, you would get the sound recording royalties (from SoundExchange) because you’re the artist on the recording and the members of Alabama Shakes would get the composition performance royalties (from BMI – their PRO) because they wrote the song.
Podcasts, however, fall into a completely separate category. Most podcasts are still downloaded (from the iTunes podcast app). So the songs used require a mechanical license (which can be obtained from Harry Fox Agency). And the podcasts which are streamed are considered “interactive” plays which require a DIFFERENT license. “Interactive” means you can choose what you want to hear, when you want to hear it (like Spotify), so they don’t fall under the same category as the above scenarios which are “non-interactive” services. Or, to the layman, radio.
So podcasts (like Spotify and other “interactive” streaming services) have to get a DIRECT license from the rights holders.
Confused yet? The assholes who wrote this system way back in the day intentionally made it this confusing to make sure they made all the money and you were too stupid to figure out even how to make sure you were getting all of it. And as technology advanced, the system kept up with the new realities right? Wrong. Sure, they update it ever so slightly every few years to include new tech, but nothing drastically ever changes and by the time the law finally passes, it’s already outdated. We should burn the entire system to the ground and rewrite it from scratch to make sense in the modern era. But this will never happen. Again, congress and special interests won’t allow it. Go America.
Ok, now that the WHY is out of the way. Let’s get to the HOW.
Long story short, there are three ways to get music in podcasts.
You, the artist, could just hit up podcasters you like and offer to give them your entire catalog of music to use in their podcasts. If it’s a popular podcast (and there are ads in it), ask for a blanket, all-in fee. Like, $5,000 for unlimited use to all of your music (if you have a decent catalog of 50+ songs). If the podcast is new or less popular and isn’t rolling in the ad dough, then getting money out of them will be quite difficult. Offer to give them your music for free, in exchange for credit at the end of every episode and links to you on their website and on the podcast description itself.
2) Music Libraries
The other way (and this is the silver bullet for podcasters) is by obtaining royalty-free music from services like FreePlayMusic.com. These are libraries of Creative Commons (CC) or Public Domain songs. You can submit music to them if you’re fine allowing everyone and anyone to use your music in their podcasts, YouTube videos, etc, for free. You won’t give up any ownership, though. You still own the song and maintain all rights, but you are allowing people to use your music via the Creative Commons license. They still must give you credit. That’s part of the license.
There are four licenses for Creative Commons: Attribution, NonCommercial (“NC”), NoDerivatives (“ND”), and ShareAlike (“SA”). Attribution is applied to every license (they must credit you). NC means they can’t make money off of whatever they’re using your song in (like they can’t have ads in their podcast). ND means they can’t remix your song. Technically putting music below speaking is remixing it. So you don’t want to set that license if you want your music used in podcasts. SA allows the podcaster to remix the song as long as they share it under the same CC license.
You choose the license you’d like to assign to your song.
There are also a bunch of (non-free) music libraries that are one-stop-shops for quick licensing for indie films, wedding videos, podcasts and corporate videos. Companies like Music Bed, Music Dealers, Pump Audio, Beat Suite and Revostock primarily license music for synch (film/youtube), but some have podcast options as well. Some platforms approve every music submission and others take everything. You want to make sure that when you submit your music to libraries that it is a “non-exclusive” deal, meaning, that you can still license your music on your own or with other licensing companies. How these libraries work is they tag every song by genre, mood, instrument or theme, and filmmakers can search for their perfect song and purchase a one-time use license for their project (as long as it falls within the library’s guidelines: indie film with a small budget, wedding video for YouTube, corporate training video, etc). With a couple clicks the filmmaker can obtain the license and download the song for their project without having to negotiate anything. Typically prices range from $50 – 5,000 depending on the platform and the project. It’s a great additional revenue stream for independent musicians who own their music.
Podcasters placing lots of filler music, aren’t necessarily in need of the “perfect song” like filmmakers are, and don’t want to pay for each song, so that’s why the creative commons option will be used most by them – until there’s a better option. More on this below.
3) Work For A Podcast
And the best option is to work for a podcast as their in house (or go-to) musician/composer. The podcasts that are more established can afford to bring on a musician (maybe not necessarily full-time) to create music for each episode. If you have a home production studio and can turn around music quickly, it may be worth making a reel of composition snippets and selling your services to podcasters.
Like every creative person, podcasters like to be complemented for their art. So when contacting podcasters, start your email with a compliment about their show. Reference specific moments and episodes. Show that you care and are a fan. You don’t just want something from them (money), you are offering them a great product (music) and you actually CARE about the overall product (the podcast). Podcasters would much rather hire those who are equally passionate about the success of their show, so show them your passion. In the email include a link to your SoundCloud or BandCamp page with your entire catalog.
Unfortunately, like the rest of the music industry, the laws and royalty collection systems have not caught up with technology. I hit up ASCAP to ask how they collect revenue generated from (streamed) podcasts and they kind of gave me a non-answer:
“ASCAP evaluates podcast services on a case-by-case basis. Podcasts have traditionally been made available via downloads and, therefore, would not require a public performance license from ASCAP. Over time, however, podcast technology has evolved to allow for delivery via streaming and other ways that allow for simultaneous playback, creating public performances and requiring permission from copyright owners or their representatives, such as ASCAP. Certain ASCAP licenses include podcasts and we have arrangements with our licensees with respect to tracking and reporting. At this time, because the number of music performances in podcasts is relatively small, those royalties are not broken out separately in our streaming music royalty distribution.”
Well, I’ve been streaming the podcasts in my Podcast app on my iPhone. So technically performance royalties should be earned and should be collected/paid out to the writer. But ASCAP/BMI/SESAC lack transparency. If I had a song in Maron’s WTF, with millions of listeners, this shouldn’t be a trivial amount. Or what if I had songs in 20 different podcasts each with 10,000 listeners? It should, theoretically, generate a hefty amount in royalties. But ASCAP (and most likely BMI and SESAC) don’t (or can’t) break this down and offer true transparency to their members – even though the data is there. Luckily companies like Kobalt, SongTrust and Audiam are working to fix this lack in transparency.
Harry Fox Agency (which collects mechanical royalties for songwriters and publishers earned from downloads – technically every song used in a podcast earns 9.1 cents per download for the songwriter/publisher) when I asked them how they handle podcast royalties, pointed me to an article, written by a lawyer, which would scare the bejeebers out of any average podcaster, overwhelming her with the complexities of music licensing law. The big takeaway from the article is, don’t even think about licensing known music. You most likely won’t do it correctly and will probably get sued. So just use pre-cleared, royalty-free music. Which is part of the reason the music industry is so f’d right now.
If you’re a podcaster and you use an uncleared song in your episode and analyze or discuss it, this use can fall under the Fair Use clause within US Copyright law.
If you use an uncleared song as your theme music or just to enhance the episode, not ok. If you use an uncleared song, but it’s relevant to the discussion, you could claim Fair Use.
What To Do About This?
There needs to be a middle ground between royalty free music libraries and fully-protected music which require individual, direct licenses per each use. There needs to be a better option. Music libraries are a good start, but aren’t feasible for podcasters needing a ton of music for cheap, quickly. And the free music libraries often contain only low-quality options.
Whoever creates a subscription-based podcast-music library will make a killing. There should be a company that allows podcasters to license/use unlimited songs for a monthly rate based on the # of listeners they have – like $50/mo for less than 5,000 listeners, $100/mo for 5,000 – 25,000 listeners, $300/mo for 25,000 – 100,000 listeners, $500 for 100,000+ listeners. This library could be structured like many other music libraries (filter songs by genre, mood, theme, instruments), but would contain only high-quality tracks (all approved, pre-cleared and hand-picked). Podcasters would submit their cue sheets to the library, and the library would pay their artists 85% of all money earned by the library divided by all songs used. So if the library had 500 podcasters each paying an average of $300 a month, total income generated would equal $150,000/mo. If 10,000 songs were used a month, each song would earn $12.75 ($150,000 / 10,000 x 85%). Many artists could have hundreds of their songs used a month, so this could work out to be a decent revenue stream. Indie artists (myself included) would line up to be apart of this service and would tell every podcaster to use it.
In the new digital landscape with so many new revenue streams, yes, it’s nice to think that ASCAP, BMI, SESAC, SoundExchange and Harry Fox Agency will collect all of the royalties you are owed, but unfortunately, they don’t have the infrastructure and their “black box” royalty collections system offers very little transparency or understanding of how royalties are calculated and paid out. And the system is so confusing in general that it’s quite intimidating for any non-music lawyer (let alone podcasters or indie filmmakers) to even attempt to approach the licensing process legally. So, whenever possible, strike direct deals where you know exactly how much you’re being paid. In this instance, and until there’s a better option, work directly with podcasters to create a fair exchange.