Questions about Podcasts
Podcasts are digital audio files that a user can typically download or stream. Often, podcasters incorporate music into their podcasts.
If podcasters use music in their podcasts, podcasters should make sure they have all of the authorizations (i.e., permissions) necessary to incorporate the music into their podcasts.
Those authorizations should include obtaining rights to both (1) the sound recording (i.e., the specific recorded version of the song) and (2) the underlying musical composition (i.e., the lyrics and melody). In addition, the authorizations, for both the sound recording and the underlying musical composition, should cover rights to (a) copy, (b) distribute and (c) digitally transmit the podcast, depending upon whether the podcast is available for downloading and/or streaming.
While some statutory or blanket licenses provide authorizations for some of the rights noted above, typically those licenses do not provide all of the authorizations required in connection with a podcast that incorporates music. For example:
- ASCAP/BMI/SESAC License. An ASCAP/BMI/SESAC public performance license may cover the performance of a musical composition in the podcast when it is streamed, but it does not cover the digital transmission of the accompanying sound recording when that podcast is streamed, nor does it cover the copying or distribution of either the musical composition or the sound recording (i.e., when the podcast is downloaded).
- Statutory Webcasting or Simulcasting License. While certain digital transmissions of sound recordings are covered by the Section 114 statutory webcasting license administered by SoundExchange, with very limited exceptions, that license does not cover the distribution of a recording of a webcast or simulcast in the form of an on-demand podcast. In most cases, that authorization must be obtained from the record label that released the sound recording.
- Licenses for Use Outside of the United States. Having the necessary authorizations (whether via statutory or voluntary licenses or otherwise) in other jurisdictions to stream or download the podcast may provide the proper authorizations in that jurisdiction, but those authorizations for other jurisdictions do not confer the authorizations required to copy, distribute or digitally transmit the podcast in the United States.
*The information provided here does not, and is not intended to, constitute legal advice. Readers should contact their own counsel to obtain advice with respect to this or any other legal matter.