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Using Music In Your Podcast: Fair Use Or Wise Choice?
Episode 1027th July 2021 • Podcast Pontifications • Evo Terra
00:00:00 00:11:40

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Evo Terra:

Can you use commercial music in your podcast?

Evo Terra:

Few questions will shut up most podcasting pundits more quickly.

Evo Terra:

But the better questions are "What's the worst that can happen?"

Evo Terra:

and "Will this ever change?"

Evo Terra:

Today's episode is brought to you by the Advancing Podcasting

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community at advancingpodcasting.xyz.

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Because why would I do anything?

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It's a special community just for listeners and readers of

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Podcast Pontifications and it's populated by like-minded working

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podcasters just like you who also want to make podcasting better.

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You're already listening to the show.

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So why not extend the conversation and your influence

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Join us today at advancingpodcasting.xyz

Evo Terra:

. Hello, and welcome to another Podcast

Evo Terra:

Today, I'm wading into a topic that many other podcasting pundits

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avoid, and that is copyright.

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Specifically, using licensed music on your podcast.

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But staying true to the spirit of Podcast Pontifications, my main focus will be

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whether or not this is a good idea.

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Let's talk legal, just for a second here, where I must remind

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you that I am not a lawyer.

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Which is a dumb disclaimer to make, in my honest opinion, for

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those of us that are not attorneys.

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I mean, if someone asks me if it's legal to grow weed in Arizona, I

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don't have to preface my answer with, "I am not an attorney."

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I can just say, "Yes, up to six plants."

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So, what's the big deal about someone answering a question on the legality of

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playing copyrighted music on a podcast?

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Yes!

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It's legal to play copyrighted music on a podcast so long as you've cleared

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the rights or are following Fair use.

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Ah.

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There lies the stickiness.

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But again, I think the more interesting question here is

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whether or not playing licensed music in a podcast is a good idea.

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This topic was inspired, actually asked, by my most recent

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coffee supporting member, Mr.

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Palle Bo.

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Palle has a podcast called The Radio Vagabond, and it's amazing.

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You should totally listen to it.

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Here's what Polly's question was, I'm just gonna read it to you:

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"Lately, I've been dreaming about it being possible to use copyrighted music

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on podcasts sometime in the future.

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Obviously, not now, but things change.

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After that, I started dreaming of what I would choose to make

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my podcast even more interesting.

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Whenever I hear a song, I would think, 'Wow!

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That would be great to play a few seconds of to set the scene on my travel podcast.'

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What are your thoughts?

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Will it ever happen?

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Should I stop dreaming?"

Evo Terra:

Well, thank you very much for the question, Palle.

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Actually, a few questions you have right there.

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So first off, yes, again, podcasters can and do use copyrighted music

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in their podcasts every single day.

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They employ the "Fair use" doctrine.

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I've linked to a great, and more importantly, podcast-specific,

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opinion by professors of law, Patricia Aufderheide and Peter Jaszi, authors

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of the book Reclaiming Fair Use.

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It's linked in the episode notes.

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But let's deal with that more interesting question of, "What's

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the worst that can happen?"

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Well, there are two worst-case scenarios I see.

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First, if your use of copyrighted music in your podcast is challenged by the rights

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capitulate and remove the music, which, by the way,

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that's a giant pain in the butt if you've done it for a lot of your episodes.

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Or, you'll wind up in court.

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You'll wind up in court, either paying expensive lawyers to defend your position

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or losing and then paying a gigantic fine.

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Second, perhaps more reality-based here, is you could get booted from

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platforms like Spotify and YouTube and probably others coming very soon.

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Especially as more provisions to the laws that govern the liability of

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these big tech firms are challenged - think Section 230, the Digital

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Millennium Copyright Act, others.

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They are now utilizing algorithms to detect the use of licensed copyrighted

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music in the content that they don't think should have that in there.

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And if those algorithms change, when those algorithms discover the music

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that you have used in your podcast, that you felt you were using under the

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Fair use doctrine, those algorithms might say, well, we know nothing about

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this Fair use thing, all we know was you've used licensed music in there,

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and therefore we're de-platforming you.

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We're removing the content.

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We're abandoning your account.

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There's lots of other things that they can do to you, that robots will do to

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you, and you have little or no recourse.

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So, is it worth it?

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I'll let you answer that question while we talk about Palle's other

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question, do I think this is going to change in the future?

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Now, when I was chatting with Palle about this on texts, I was rather

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pessimistic, but I've changed my tune.

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Upon reflection, I've remembered that the moral arc of the universe

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tends to bend towards justice.

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It may take a very long time, but I think that the work done by the Electronic

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Frontier Foundation, E.F.F., and other copyleft organizations, these people

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are all trying to make fundamental changes to the draconian copyright

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system here in America, as well as the international treaties that govern it.

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And I think their efforts will eventually bear fruit.

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Now, whether or not that happens soon enough for you, Palle, to play

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commercial music in your travel podcast without fear of de-platforming or

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court summonses remains to be seen.

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Neither you nor I are getting any younger.

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So you never know when that's going to happen, but I do

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think eventually that it will.

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So again, the link to that article on Fair use specifically for podcasts - this

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was an article written for podcasters - is linked in the episode notes.

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I highly recommend that you give it a read, and then you make your own decisions

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on what you should or should not do.

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That's up to you.

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Palle's question was asked because, well, we're friends, and also,

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Palle signed up for a membership at BuyMeACoffee.com/EvoTerra.

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Membership has its privileges, and this is just one of them.

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If you have a question you want to ask me directly, I do treat the members

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a little better than everybody else.

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So up to you, what you want to do.

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Regardless, I know this.

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I shall be back tomorrow with yet another Podcast Pontifications.

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Cheers!

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Podcast Pontifications is written and narrated by Evo Terra.

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He's on a mission to make podcasting better.

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Links to everything mentioned in today's episode are in the notes

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section of your podcast listening app.

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A written-to-be-read article based on today's episode is available at

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podcastpontifications.com where you'll also find a video version and a corrected

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transcript, both created by Allie Press.

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Podcast Pontifications is a production of Simpler Media.