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Can I Play Music On My Podcast Under the Fair Use Rule?

Previously, I answered the question “Why Can’t I Play Music on My Podcast?”

Now, I just want to clear up another misnomer I hear a lot, which is about “Fair Use.” It is usually in the form of “It’s OK if I only play 15 or 20 seconds of a song, right?”

Now, again, before I get into this difficult question, let me start this answer with this legally important statement.

I am not a lawyer. I do not give legal advice. The information I provide here should not be considered legal advice. I am simply offering this as my perspective on the subject. If you want to know the legal side of this issue, I encourage you to find a qualified lawyer in your area.

OK, now that that’s covered, let me get back to the question, “Can I Play Music Under Fair Use Rules?”

This is a term where you are allowed to play a limited amount of copyrighted music without the specific permission of the copyright holders. However, this is a vague rule and is often interpreted on an individual basis. You won’t know if what you are doing is legal or not until AFTER you are taken to court and a judge rules on your individual case.

Yes it’s vague…

In short, there are a few factors that work in your favor…

One, if you are doing a review of some kind. Let’s say your podcast reviews the latest music release or something like that. You may be OK to play a short (and I mean very short) snippet of music to talk about. Let’s say a drum solo about halfway through the song. Something like that “maybe OK.” Notice – I said “could.” It’s not that it’s OK.

If taken to court, if this is all you have with the copyright owner, it may work out well for you. But then, you have to look at the cost involved to get that little 20-30 second music clip approved to play. It might be cheaper to just buy the copyright. I mean, lawyers and legal fees, time involved. Travel, deposit, etc.

“Well, bro Bob, I’m just a small podcaster and I don’t have a lot of people following me. Surely, they’re not going to waste their time chasing me, are they?”

When you first start, you may have a few followers. But there isn’t a podcaster I know who doesn’t track their download numbers and is always hoping for more. What will happen if, six months from now, your podcast goes viral?

Every subscriber has access to all your episodes. If one of them happens to be one of the music artists on your podcast, they may decide to see if you’re paying them a royalty fee. They got it. It is part of their income. You must legally pay for it.

In this example, due to the number of downloads you are currently receiving, the court will “hold” you liable for damages. How many? (Again, in my best lawyer voice… it depends… ).

If you are a private, non-commercial podcaster who is truly acting in good faith and is not trying to market the song, trademark the song, etc. You can only be fined about $500. But – it went up from there!

If you use it as a commercial endeavor, such as part of your teaching program, etc., the fines can be up to $150,000 or more.

And let me add, that’s $150,000 PER SONG!

In some cases, the courts have decided that there is a good PER EPISODE the song is played!

Now, I’m just going to use my podcast, “The Kingdom Cross Roads Podcast,” as an example. For the record, I’m using music that I own the rights to. But, let’s say I choose a song from one of my favorite groups and use a short 30 second clip in the open and close. That has two uses in each stage. I have over 900 episodes. That’s 1,800 uses.

Even with a $500 fine per use, (the low end of the fine spectrum) I’m looking at a $900,000 fine if I’m found guilty of willfully violating copyright and royalty laws. I am not saying that this is the fine I will receive. But this is the amount I will face if I am brought to court and found guilty of willfully breaking the law.

This is why, for my podcast training clients, I emphasize how important it is to purchase the rights to use the music to create their intro and outro’s. Or to use “Royalty Free Music” you do the same thing through platforms that provide music. KEEP LICENSES on file! Just in case.

My best advice is to follow the law, spend the money to buy the rights up front, and you’ll be OK.

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