For years, we have warned about the need to license music in podcasts – and how such licenses need to be obtained directly from copyright holders. We’ve noted demand notices sent to podcasters causing those podcasters to pull their programs from various distribution platforms (see, for instance, our articles here and here). We warned that, as podcasts are on-demand performances and are permanently “fixed” with other audio, the public performance rights given by the licenses that broadcasters and some other services obtain from ASCAP, BMI, SESAC, GMR, and even SoundExchange, are insufficient to cover broad uses of music in podcasts (see, for example, our articles here and here). A Press Release yesterday from NMPA (the National Music Publishers Association that represents publishing companies that generally hold the copyrights in musical works – the musical compositions that provide the word and music in a song) announces that the organization has sent a take-down notice to Spotify asking it to remove from podcasts hosted by Spotify “thousands of unlicensed uses of NMPA members’ works.” The Press Release indicates that over 2,500 notices have been sent, and that more are on the way.
This action should reinforce our concerns about the use of unlicensed music in podcasts. But, contrary to the suggestion that the NMPA letter makes that licensing “is not hard to do,” for many podcasters, it is in fact hard. There is no central organization, like the PROs or SoundExchange, that provides blanket licenses that cover all music uses in podcasts. A podcaster who wants to use a popular song in a podcast has to find the copyright holder (or, more frequently, the copyright holders) to both the sound recording (the artist who recorded the music or their copyright holder, often the record company) and to the musical work (the composer or composers and lyricists or their publishing companies, which normally hold the copyrights) and get their permission to include the song in the podcast – most often at a price. This often involves significant research to find the proper rightsholders.
While certain online clearance tools have arisen over the last few years, many are limited to independent or obscure music and others tend to be geared toward using music in professional video or major professional podcasts. The hobbyist podcaster, or even those producing podcasts for a small broadcasters or other small media company, does not know where to start to get a license (remember, thus far, there is no comprehensive database of copyright holders for music in the US) and, even if the music they want is on one of the online exchanges, it is often not available at a price that the small podcaster, even when affiliated with a broadcaster or other small media company, can afford. That is why many podcasters do without music or commission their own music to be used in their productions.
The action against Spotify highlights the perils of music use in podcasts, and reinforces the need for easy, reasonable music licensing. As the number of podcasts and independent video productions increase (video productions also need to clear their music rights – see our article here), the need for easy licensing mechanisms will only become more acute.