Hack68.Use Copyrighted Music Legally

Hack 68. Use Copyrighted Music Legally

Keep lawsuits away by making sure that any music you use in your podcasts is properly licensed or is license free.

At some point in the process of putting together a podcast, you'll run into the need (or desire) to use music. Whether it's for an intro [Hack #63], a sound bed (music that plays in the background while you're talking), or a featured part of your show, music can improve the way a podcast sounds significantly. Unfortunately, you face a huge obstacle when it comes time to distribute to your listeners a podcast that includes music. It's known as "the law."

9.9.1. Know Your Rights

Most of us, when we work, expect to get paid for what we do, and artists are no exception. Both composers and musicians have the right to be paid for the songs they create and those rights are protected by copyright law. As someone who wants to use those songs, you need to make sure you understand those rights, because the failure to do so can result in some hefty fines (up to $150,000 per song, as of this writing).

For the sake of keeping things simple, this hack focuses on how song rights are handled in the U.S. Because it can be a full-time job to manage the rights to a song, most composers will assign the responsibility to someone else. In the case of a composer, this would be a performing rights organization. In the case of an artist, this would be a record label. For you, the podcaster, this means that to obtain legal permission to use a song, you must not only obtain the composer rights from the appropriate organization, but also the performer rights from the label.

9.9.2. Composer Rights (ASCAP/BMI/SESAC)

Three primary performing rights organizations in the U.S. handle composer rights (also known as public performance rights): ASCAP (The American Society of Composers, Authors and Publishers at http://www.ascap.com/), BMI (Broadcast Music, Inc. at http://www.bmi.com/), and SESAC (The Society of European Stage Authors and Composers at http://www.sesac.com/). Membership in these organizations is free; the organizations take a percentage of the licensing fees they collect on behalf of the composers.

As a podcaster, you need to apply for an annual license from one or more of these organizations to be able to use songs written by the composers they represent. (Each organization offers a search feature on their web site to help you determine which organization represents a given song.) This license gives you the right to use the organization's songs in your podcasts during the year. When the license expires, you must either renew it or remove any podcasts that use the organization's songs from your server.

While the licensing costs vary from organization to organization and year to year and depend on a variety of factors, for most noncommercial podcasts the 2005 cost is around $300 per year each for ASCAP and BMI and around $170 for SESAC. This means that even if you use one ASCAP song in one podcast, you will have to pay a $300 licensing fee for each year you make that podcast available on your server. On top of that, you also have to report the number of times your podcast is downloaded. If it ended here, you'd be relieved. Read on for the rest of the story.

9.9.3. Performer Rights (RIAA/SoundExchange)

While paying for a license from one or more of the performance rights organizations might make the composers happy, it does nothing for the performers if you're using a recording of a song instead of performing the song yourself. As mentioned previously, the performer's rights are handled by the record labels, which are represented by the RIAA (http://www.riaa.com/). The licensing arm of the RIAA is called SoundExchange (http://www. soundexchange.com/), and SoundExchange is where the podcast licensing story hits the proverbial dead end.

There are actually two different types of performer rights: mechanical rights and master use rights. Mechanical rights cover the right to record and distribute a song for private use. Master use rights are the rights to use previously recorded material. Mechanical rights (and the digital equivalent) are handled by the Harry Fox Agency (http://www.harryfox.com/) and master use rights are handled by the individual record companies. So, how does SoundExchange fit into the picture?

Obtaining mechanical and master use rights is done on a per-song basis and is expensive, time consuming, and in some cases impossible. (Record labels don't have to grant master use licenses, and since they are against file downloading, you can imagine what their attitude is toward podcasts.) So, SoundExchange (at the not-so-gentle nudging of the government) offers what is known as a statutory license that is specifically designed to bypass these potential licensing roadblocks for Internet webcasters and offer blanket performer rights at a reasonable annual rate ($500 for 2005).

Several podcasters have rejoiced upon discovering the statutory license and thought it to be the answer to their licensing woes. Unfortunately, the terms of the license are worded in such a way as to limit the license to streaming media; therefore, podcasts don't qualify, which brings us right back to where we started. In other words, there is currently no way to legally license your podcast to play RIAA music, no matter what you've heard to the contrary.

9.9.4. What About Fair Use?

"But what if I don't play an entire song?" you might ask. "What if I play just a short excerpt? Isn't that covered under fair use?"

In short, no. Urban myths are floating around the podcast community, which say you can play excerpts from songs as long as they are less than 30 seconds long. This is simply not true. The "fair use" aspect of copyright law is very complicated, but generally, it is limited to use for teaching, research, news reporting, comment, criticism, and parody. However, even the context of these uses is limited, and if you're even thinking of trying to get away with something under fair use, you should probably consult a copyright attorney or spend some time studying fair use online (see http://fairuse.stanford.edu/).

9.9.5. The Alternatives

If at this point, the whole situation looks hopeless, you've assessed it properly. Until the RIAA reevaluates its position on downloadable media and comes up with a form of licensing that covers podcasts, there is no way to use RIAA-licensed songs legally in a podcast, unless you are able to negotiate a licensing agreement directly with an individual record label (and even that falls into a gray area).

Fortunately, alternatives are available. The RIAA does not license all music. Plenty of independent record labels and bands produce excellent music and are more than happy to have their songs featured on podcasts. Web sites such as GarageBand (http://www.garageband.com/htdb/index.html) and Indieheaven (http://www.indieheaven.com/) allow you to explore many of these artists and preview their music. In GarageBand's case, a free licensing agreement is available that allows you to use any song in its catalog in your podcast. In the case of Indieheaven and most other independent artist/label web sites, you should contact the artist/label directly for permission. (Even if an artist provides a downloadable MP3 of a song on her web site, you still need permission.) I have yet to be turned down for such a request and usually receive a very enthusiastic and appreciative response.

Your other option for legal music, especially for instrumental music and sound effects, is to do a web search for royalty-free music. Royalty-free music can be completely free, but usually it involves paying either a onetime fee or an annual fee for the right to use it, regardless of how many listeners you have. Three examples of web sites that offer this type of service are:

• Freeplay Music (http://www.freeplaymusic.com/), which has a wide variety of themed tracks to pick from on an a la carte basis, with an annual usage fee

• IB Audio (http://www.ibaudio.com/), which offers a library of tracks on an annual "all-you-can-eat" subscription basis

• Sounddogs.com (http://www.sounddogs.com/), which offers music and sound effects tracks on an a la carte basis, with a one-time usage fee

If you decide to go the royalty-free route, make sure you read the fine print to determine exactly what fees are involved.

9.9.6. The Bottom Line

As complicated as all this might seem, the bottom line is simple: make sure you have permission to use any content in your podcast that you haven't created (and written) yourself. In the case of recorded music, the only way to get permission at this point in time is to use songs from independent bands and/or labels. The good news is that the Internet is a rich resource for finding these songs, and they are just as good as or better than the songs that you won't be able to use!

9.9.7. Protecting Your Podcasts

The thought of protecting your podcasts might never occur to you. Until, that is, the day someone figures out a way to make money marketing them, without your permission, and you realize that you can do little or nothing about it. In the short history of podcasting, this scenario has already happened, as people have started scrambling to find a way to make money.

One idea that has shown up several times involves streaming podcasts sequentially in a variation on Internet radio, with commercials playing between them. In an ideal environment, podcasters would receive part of the proceeds from these commercials. If you haven't taken steps to protect your podcast, however, you might not have the right to claim anything. Fortunately, there is an easy and free solution to this potential problem.

9.9.7.1 Creative Commons licenses.

While all creative works have an implicit copyright from their moment of conception, putting a work into public distribution without spelling out terms of use is risky at best. Creative Commons is an organization that was founded in 2001 with the specific intention of offering free copyright tools for those creating and distributing digital works. These tools build on the basic "copyright by default" and allow you, the creator, to have full control over how your creations are used, without sacrificing any of your rights.

Using the legal groundwork Creative Commons has put into place, you can make sure it is easy for others to understand exactly how they can use your podcast, without having to guess or contact you for permission. Just as importantly, the process of doing this is simple and straightforward for you also.

9.9.7.2 License conditions.

In short, Creative Commons licenses allow you to grant blanket permission for your podcasts to be used under certain conditions, while retaining your copyright. You select those conditions from the following list:

Attribution

You let others copy and distribute your podcastand derivative works based on itbut only if they give you credit.

Noncommercial

You let others copy and distribute your podcastand derivative works based on itbut for noncommercial purposes only.

No derivative works

You let others copy and distribute only unedited copies of your podcast, not derivative works.

Share alike

You allow others to distribute derivative works, but only under a license identical to that which governs your podcast.

These descriptions are based on those given at the Creative Commons web site and are used with permission under a Creative Commons license with an attribution condition.

You have 11 Creative Commons licenses to choose from, in addition to a public domain license that releases all your rights to a podcast and makes it freely available for public use.

9.9.7.3 Taking and using a license.

Once you've decided which conditions you want to apply to your podcast, you simply choose a license using the online form at http://creativecommons.org/license/. Submitting this form will generate the appropriate license code that you can then copy and paste into the HTML for your web site. The result will look something like Figure 9-15.

Figure 9-15. The Creative Commons notice

Clicking the icon will take you to a Creative Commons page, also known as the Commons Deed, which spells out the terms of the license. Figure 9-16 is an example.

It's important to note that, because of the license code, your license has been expressed in three ways (these descriptions are again taken from the Creative Commons web site):

Commons deed

A simple, plain-language summary of the license, complete with the relevant icons

Legal code

The fine print that you need, to be sure the license will stand up in court

Digital code

A machine-readable translation of the license that helps search engines and other applications identify your work by its terms of use

Now your podcast is protected.

9.9.7.4 Tagging MP3s.

Having the Creative Commons licensing information on your web site is fine, as long as people visit the web site before subscribing to your podcast. Since that's often not the case, it's obviously useful to have some way to embed the licensing information in the podcast MP3 files themselves [Hack #40]. Creative Commons has developed a method for doing this that includes a verification link back to your web site and the license infopage that includes the license metadata. This link is stored in the copyright ID3 tag. For example:

Figure 9-16. The Creative Commons license for a particular work

 2005 The GodCast Network. Licensed to the public under http:// creativecommons.org/licenses/by-nc-nd/2.0/ verify at http://www.godcast.org/cclicenses.html 

Creative Commons provides two tools, ccLookup and Publisher, that make it easy to tag your MP3s and generate the corresponding verification metadata. You can find these tools, along with more information about the tagging process, at http://creativecommons.org/technology/nonweb.

9.9.8. Tagging RSS files.

You can also tag RSS files to indicate that the contents of the RSS file or the contents of a particular item within the file are covered by a Creative Commons license (or any license, for that matter). Here's an example of the RSS element that allows you to do this:

 <creativeCommons:license> http://www.creativecommons.org/licenses/by-nc/1.0 </creativeCommons:license> 

You can use this as a subelement of <channel> to indicate that the content of the entire RSS file is available under the license referred to by the specified URL. You can also use it as a subelement of <item> to limit the license to the contents of that particular item.

9.9.9. See Also

• "Tag Your MP3 Files" [Hack #40]

• "Add Top, Bottom, and Bumper Music" [Hack #63]

Craig Patchett