Earlier, I covered the question. “Why can’t I play music on my podcast?”

Today, I just want to clear up another misnomer I often hear, which is “fair use.” It is usually in the form of “It’s okay if I only play 15 or 20 seconds of a song, right?”

Now again, before I get into this tricky question, let me start this answer with this legally important statement.

I am not a lawyer. I do not offer legal advice. The information I provide here should not be considered legal advice. I only offer this as my perspective on this topic. If you really want to know the legal aspect of this problem, I recommend that you find a qualified attorney in your area.

OK, now that’s covered, let me get back to the question, “Can I play music under fair use rules?”

This is a term where you are allowed to play a limited amount of copyrighted music without specific permissions from the copyright owners. However, this is a vague rule and is often interpreted on an individual basis. You will not know for sure whether or not what you are doing is legal until AFTER you are taken to court and a judge rules on your individual case.

Yes, it’s that wave…

In a nutshell, there are a few factors that will work in your favor…

One is if you are doing a review of some kind. Let’s say your podcast reviews the latest music releases or something. You’re probably fine with playing a short (and I mean very short) piece of music for discussion. Let’s say a drum solo in the middle of the song. Something like this “could be fine”. Notice: I said “could”. It’s not that it’s okay.

When you go to court, if this is all the copyright holder has on you, you’ll probably be fine. But then you have to consider the cost involved just to get approved to play that little 20-30 second clip of music. It probably would have been cheaper to buy the copyright. I mean, attorney and legal fees, time involved. Trips, declarations, etc.

“Well, brother Bob, I’m just a little podcaster and I don’t have that many people following me. Surely, they won’t waste their time chasing me, right?”

When you start out, you may only have a handful of followers. But I don’t know of any podcaster who doesn’t follow their download numbers and always expect more. What if, six months from now, your podcast goes viral?

Each subscriber has access to all your episodes. If one of them happens to be one of the music artists on your podcast, they might decide to see if he’s actually paying your royalty fee. They earned it. It is part of your income. You are legally obligated to pay it.

In this example, because of the number of downloads you have received, the court “could” hold you liable for damages. How much? (Again, in my best lawyer voice… that depends…).

If you are a private, non-commercial podcaster who actually acted in good faith and did not try to commercialize the song, brand the song, etc. Only about $500 could be found for him. But – go up from there!

If you were using it for business purposes, as part of your training program, etc., the fines could be up to $150,000 or more.

And let me add, that’s $150,000 PER SONG!

In some cases, the courts have determined that there is a fine PER EPISODE in which the song was played!

Now, I’ll just use my podcast, “The Kingdom Cross Roads Podcast” as an example. For the record, I use music that I own the rights to. But let’s say I chose a song by one of my favorite bands and used a short 30-second clip at the beginning and end. There are two uses in each episode. I have over 900 episodes. That’s 1,800 uses.

Even with a $500 fine per use (the lower end of the fine spectrum), I would find myself facing $900,000 in fines if I was found guilty of knowingly violating copyright and royalty laws. I’m not saying this is the fine you would receive. But this is the amount I could face if I were taken to court and found guilty of knowingly breaking the law.

That’s why, for my podcast training clients, I stress how important it is to purchase the rights to use the music when creating your intros and outros. Or to use “Royalty Free Music”, which is doing the same thing across the platforms that provide that music. KEEP THE LICENSES come on! Just in case.

My best advice is to just follow the law, spend the money to buy the rights up front and you’ll be fine.