Podcasting Music Clearance

July 22, 2005 3:21 PM

This is a question on podcasting music rights -- largely because my phone calls to ASCAP and BMI have gone unreturned and, after reading this (and getting inconsistent answers from this and remaining unsure about whether a downloaded podcast counts as "webcasting" (Doc Searls says a podcast isn't radio, for example), my head hurts. Let's say you have a blanket license. If you are using copyrighted background music, do you then have to clear each and every song through the record companies even if you are only using the song as background music (as the above ASCAP link suggests)? I know this is the way it works in film (and in many ways, film is easier). But does there exist an ASCAP-style agreement that works for podcasting in much the same way that it works for radio. And if this is the case, has anyone had any specific experiences dealing with record companies? Any leads that clear this up would be greatly appreciated. (From my interpretation, it seems that an ASCAP license would be utterly useless unless I had a karaoke podcasting show due to the "mechanical rights" issue.) Thanks again, folks.
posted by ed to computers & internet (11 comments total)

I don't mean at all to be rude, but I'm just wondering if maybe you could get a more experienced pool of question-answerers on a podcasting message board?
posted by matildaben at 3:25 PM on July 22, 2005

For ASCAP purposes, internet transmissions are all the same, regardless of if it's listened to immediately (shoutcast) or stored and listened to later (podcasting).

In short, you almost certainly require an ASCAP Non-Interactive license to do whatever it is you want to do.
posted by Jairus at 3:38 PM on July 22, 2005

...and yes, you'll still have to contact Harry Fox (or whoever) to licence the individual songs.

Might I suggest contacting artists that aren't ASCAP members to ask them to use their songs in your podcasts?
posted by Jairus at 3:40 PM on July 22, 2005

Jairus: I understand that aspect and that goes without saying. I'm just wondering if it's more than an ASCAP license that's at stake here (i.e., one agreement with a record company or the RIAA; a blanket agreement from ASCAP and/or BMI) for a clip that goes beyond 30 seconds of fair use. To respond to matildaben's comment (which is a fair criticism I don't take offense to at all), there seems to be no conclusive opinion on this subject -- and I suspect that other MeFites were hoping to get a conclusive answer on this subject.
posted by ed at 3:44 PM on July 22, 2005

Perhaps I don't understand the question, then. Could you rephrase?
posted by Jairus at 3:49 PM on July 22, 2005

Okay:

Let's say I'm a guy who wants to use background music in my podcasts -- music for longer than the 30 second fair use period. Will a blanket ASCAP license allow me to use these songs in this context? Or must I get an additional license for each song (say, a specifically performed tune) from the record company and/or the Harry Fox Agency?

This Podcast Alley thread would seem to indicate that getting an ASCAP or BMI license alone does the trick, so long as you document all songs that you play. But I'm just wondering if there's a clear-cut precedent that takes the DMCA into account.
posted by ed at 3:57 PM on July 22, 2005

This issue was brought up at this year's MUTEK festival. In the case of labels that publish under Creative Commons licensing you would contact the label directly as the license demands — depending on your audience size you would or would not be charged a license fee: it's down to the label.

As for major labels, the copyright lawyers discussing the issue basically boiled it down to how technically difficult it is to guage access by a listening audience. Though the podcast format is like taking radio playlists with you, technically it does not work on the per-play format that radio stations use — the audience can play and replay podcasts without measurement.

My understanding from this explanation was that the ASCAP and equivalent Canadian licensers had not figured out a way to charge people properly for this clearance service. IANAL, so I could be wrong about much of this, however.
posted by Rothko at 4:02 PM on July 22, 2005

That is a fantastic question. I would imagine you'd need the additional license, simply because the internet licensing schemes don't take into account the possibility that the music will be used in that fashion.

I would hope that ASCAP would eventually create a license for use of that kind, but in the meantime, I think you'll probably need to get the license for each song.

Man, I hate the industry.
posted by Jairus at 4:04 PM on July 22, 2005

We need to make a distinction between the different kinds of rights involved in a digital music transmission.

These are split into two: the composition right (also known as music publishing), which represents the songwriter's creation; and the recording right, which represents the record label and/or the recording artist. And each of these is further split in two - a performing right and a mechanical right.

--

So, starting with the composition right, representing songwriters:

The performing right (ASCAP or BMI) - this is taken from the notion that a digital music transmission is akin to a broadcast. ASCAP and BMI collect for radio, and in a similar way they offer licences for digital services.

The second part is the mechanical right - this is taken from the notion that every time a song is delivered or pressed, a fee should be paid. Originally it was associated with record pressing plants but it now applies to downloads. Look to Harry Fox for these kinds of licences.

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Next, let's move on to the recording right.

If you want to licence downloadable music to sell digitally (let's say you're iTunes or Rhapsody), then you'll need to negotiate with record labels to get the recording right. This is what is required to get permission to sell the recorded product.

On top of this there's the performing right for recordings, which in the digital realm is administered by SoundExchange (in the analogue world I believe there is no performing right for recordings, or at least none is collected.) This is the recorded music equivalent of ASCAP - ie a broadcast. But this doesn't give you permission to sell podcasts featuring major recorded music, because podcasts are arguably also downloads.

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Now, with regard to podcast licences, I know that ASCAP has already created a licence for podcasts. But whether Harry Fox has one is doubtful. And record labels certainly don't have a blanket structure to deal with podcast licensing. So if you wanted to make a show with ten well-known songs on it, you'd have to negotiate directly with the record labels for each song, which would be expensive and long-winded.

As for the other issues (whether a podcast is a broadcast and therefore doesn't require a mechanical right, or whether it's a download and therefore requires both a mechanical and a performing)... I think these are still up in the air and will take months or years to resolve.

So in short:

1. There are a lot of different rights for you to deal with. Even the rightsholders haven't fully established which rights are required for a podcast.

2. No-one yet (to my knowledge) has managed to create a podcast using mainstream, major label music with anything other than 30 second clips (this is what the iTunes New Music Tuesday podcast uses.)

3. The easiest way to use music in a podcast is to use unsigned, unpublished music or music with specific permission via a Creative Commons-type licence. Actually, this is what BMI is doing on its own podcasts: giving a waiver for each track which skirts around the problem by saying that, for now, people wishing to podcast minor or unpublished acts needn't worry about paying a licence.
posted by skylar at 6:45 PM on July 22, 2005

BTW, I'm sorry I posted such a lame reply above. I should give people a chance to weigh in with their real expertise before I jump to such conclusions. Sorry.
posted by matildaben at 12:00 PM on July 23, 2005

The whole licensing issue is a mess, it's seemingly impossible to produce a legal podcast at the moment featuring mainstream recorded music.

Luckily that's forced people to be more creative, and helped prompt initiatives such as the Podsafe Music Network.
posted by malevolent at 1:12 PM on July 23, 2005