By: David Oxenford, Wilkinson Barker Knauer LLP
The use of music has long been an issue for those looking to provide music-oriented podcasts to the public. As we have written before (see, for example, our articles here and here), clearing rights to use music in podcasts is not as simple as signing up with ASCAP, BMI and SESAC (or even adding GMR or SoundExchange to the mix). These organizations simply cover public performance rights for music when, as our prior articles make clear, podcasts require additional rights to use music in ways not fully covered by the licenses that are offered by these organizations. The rights to the use both the underlying musical composition and the actual recording of that composition by a band or singer must be obtained on an individual basis from the copyright holders. That can often mean a search for both the publisher and record company who usually own those copyright in the musical composition and the sound recording, respectively. This can often be a difficult search, especially if there are multiple songwriters of a composition (and hence multiple publishing companies which likely own the copyrights) or where the rights to the songs have been assigned over time from their original owners. Plus, as we have written before, there is no easily accessible universal database yet in existence that provides up-to-date and complete records of who owns those copyrights. All this combines to make the clearance of music for use in podcasts an arduous process – and almost prohibitive for any small podcaster who wants to use more than one or two pieces of music in connection with their show.
In an article in the radio industry newsletter Inside Radio this week, it appears that at least two music-oriented podcasts have attracted the attention of the music industry, receiving demands from the RIAA which has led to their ceasing of operations. It appears that these cases demonstrate both the difficulty of clearing music for podcasts, and perhaps that, as podcasting is growing in attention, the legal issues associated with the use of music in those podcasts is coming to the forefront of the attention of the music industry.
The two podcasts mentioned in the Inside Radio article have each posted explanations of their shutdowns on their websites (here and here), and both indicate that they were surprised by the take down notices as they had secured permission from the artists whose music they were playing in their podcasts. The podcasters both indicate that the notices came from the RIAA, so it is likely that the issues dealt not with the clearance of the underlying musical works (the words and music in the songs being used), but instead were based on concerns over the use of the actual recordings themselves. While we have not seen the takedown notices and have no direct knowledge of the permissions that these podcasters received, it may be that while they received some permission from the artists involved, they did not receive permission from the actual copyright holders in the recordings. A band or singer may tell a podcaster that the podcaster has permission to use an old recording in their program. But if the artist has assigned the copyright in that recording to the record label, the artist may not have the right to grant the podcaster the necessary authority to use their own music. In the music industry, you see several instances where artists re-record classic albums or songs so that they “own the master” in the recording so that they can exploit that recording, when the original may well be owned by the record label or some other party who controls its use.
In other cases, take-down notices can be generated by mistake, as various “bots” may be scouring the Internet for music uses without permission, and services like podcasters may be identified as infringing on the copyright holders rights even where they have permission, simply because that permission was granted outside the normal channels that may have been inputted into some Internet search program. Finding the right person to clear up such a mix-up may not be easy, but hopefully it is something that can be done with some persistence by even individual podcasters.
These issues are only growing in today’s virtual world. I recently participated on a panel hosted by the Copyright Society talking about pandemic-related copyright issues. We discussed how, as more and more of our normal activities have gone virtual, and as music that accompanies those activities follows along, rights issues can be implicated. Instead of a public performance license from the performing rights organizations that may be needed for a live event, online videos available on demand, in the same way as podcasts, need to clear their music use from the copyright holders. The same issues described above come up with music in videos, so be careful about clearing the necessary rights (see our post here for more on this issue).
As time goes on, hopefully there will be more online exchanges where rights to such uses can be cleared by a few clicks of a mouse, and there will be databases where the identity of the appropriate parties from whom to obtain those rights is universally available. Until then, be careful using music in these productions, and expect to encounter some bumps along the way.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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