Getting legal with your licensed-music podcasts

[Brian]

I've been asked frequently by other podcasters who are interested in playing licensed music in their podcasts about my arrangements with ASCAP and BMI. I thought I'd create a topic here on PodcastAlley where I could share what I've done and encourage others to provide input as well.

Before I go into any of this, I want to make sure that it's clear that this is not the definitive word on the legality of playing licensed music in your podcasts. I've dome some research, but it's a starting point, and I hope that others will chime in with information that they've gotten from other sources. Please post to this topic anything you can offer about the legalities of playing licensed music in your podcasts, and hopefully as a group we can identify the rules that we need to follow, and the agencies we need to pay.

First off, ASCAP. The woman I work with there is named Julie Peng, and she's the Senior Account Executive for the New Media & Technology devision. I spent about an hour with her on the phone (during a drive from Pleasanton, CA to San Francisco) explaining the whole background of podcasting. I think she gets it. Basically, as long as you're not making more than $12,000 a year on podcasting, you'll be paying the minimum annual cost of $288 (2004's price was $264; it's gone up a bit). It's not a prorated amount. If you sign a license agreement in November, you'll pay your $288, and when January 1st rolls around, you'll pay again. However, if you've been playing licensed music in your podcast for a while, you may want to pay that amount to keep your 2004 podcasts legal (unless you take them offline in 2005)

Julie was tremendously helpful. She got all my information dueing the call, and filled out the contract for me, which she then mailed to me for me to sign and return with a check.

ASCAP's license agreement can be viewed online at the folling link:
http://www.ascap.com/weblicense/

BMI is pretty much the same. I worked with Christine Iglesias, who is the Director of Internet Licensing. Their minimum annual rate is $274 for 2004, and the criteria are pretty much the same.

BMI's license can be found here:
http://www.bmi.com/licensing/webcaster/index.asp

In both cases, you must document everything you play (Artist, Song Title and Album). These are done quarterly, and I haven't filled out Q4 2004 yet, but in preparation, I've been keeping track of all the music I've played. (I'm using a FileMaker Pro database, but you can use Excel, Note Pad, whatever.)

I don't have any agreemenets yet with SESAC or the RIAA, but I understand that they have some regulations as well. Here's a good page on The RIAA's rules:

http://www.riaa.com/issues/licensing/webcasting_faq.asp

OK - that's all I've got. Please jump in with your own intel.

[Funtime Ben]

Good tips there all around!

Thanks Brian.

[Craig]

Brian, unless I read the the RIAA FAQ wrong the RIAA doesn't offer licensing other than helping to administer the DMCA statutory license (which only applies to Internet radio, not podcasting). For podcasting you're stuck with ASCAP, BMI, and SESAC.

Craig

[camilian]

Brian,

I have a friend that works at a television station and part of her job is to make sure that they are covered on all music used in their programming. I was asking her about licensing a few weeks ago. They were recently purchased by Journal Broadcast Group and she went to a conference on licensing with the Journal folks in radio, web, and television divisions. At the conference they told the web folks that even with the licenses (BMI, ASCAP, SESAC) they had to follow certain rules or they could break the Digital Millennium Copyright Act. She was not interested in the web stuff and glazed over during this discussion. Are there any "rules" or is that Journal just spooking the employees?
I can't seem to find anything on-line.

When I told my friend about podcasting and trying to get something licensed, she told me she could not see any of the copyright holders being happy with a radio show that is downloaded to your computer, could be edited and can be traded. Did the folks at ASCAP and BMI have any reservations in this area, or did you feel that maybe they didn't get it yet?

[Brian]

ASCAP and BMI didn't have any concerns about it being a downloaded file. I did tell them that I talk and segue over the intros and outros of the songs to further inhibit extracting desired songs and trading them. Neither expressed any concern over that, but I believe that they're more concerned with royalties than copyright violation. That's more the RIAA's jurisdiction.

[DjTweed]

Thanks for the info Brian! You are quite a "Trailblazer" for the rest of us.

I have contacted ASACAP, and I will report back here, when I'm finished.

The part that scares me is... how will the RIAA see a podcast differently from a file-shared mp3? If both can be downloaded, traded, etc, then are they both not illeagal?

So, even if ASCAP/BMI says "no problem here" (and takes our ~$600) I'm worried that the RIAA will hunt us down. :shock: And we know what happens then....

Thanks,
George

[ej]

I'm worried that the RIAA will hunt us down. :shock: And we know what happens then....

I think the RIAA would have a hard time suing someone who has paid for the music and not delivering it at 128k. That would be a PR nightmare for the industry when they start suing folks who have actually purchased the music legally.

Brings back the Lars Ulrich Napster days huh? I've lost all respect for Mettallica, quite a shame because I was listening to them from the "Ride The Lightning" days. I wrote a rather caustic email to their site about their crappy selection of downloadable music.

The reply was "well you can get most of the bands stuff online..."

Right, in the same sorry format as a CD and the same price to boot. Basically you have to buy the whole album, you can't purchase the individual tracks, which is the point of iTunes and downloadable music in general. I don't want all of the crap music with the good stuff.

Sorry, had to add my $.02 on this one..

Respectfully,
EJ Lear

[radioclash]

A few things to remember:

This is a US list - I think for the UK you'd need to talk to people like the MCPS... http://www.mcps.co.uk who are PRS also now I think, amongst others. I think this varies from country to country.

Licensing organisations, at least here don't cover independents like XL (White Stripes) or some others like Universal - they are with their own or other licensing organisations...there isn't just one or two - you need to check for each track! :shock: I think some indies don't have any licensing org looking after them either...you'd need to deal direct I suppose (?)

Do you have to sign up with say your local licensing services plus the US ones? I'd expect most US music has seperate publishing deals outside the US with local firms? Anyone know?

It's a minefield.... :(

[tdsmith]

I've been reading allot on this today and it looks like getting a license from ASCAP and BMI are not enough.

According to the RIAA's site the copyright is divided into two parts.

“The first is the underlying musical composition, comprised of the written notes and lyrics (for purposes of copyright law, the musical composition is referred to as a "musical work"). The second copyrighted work is the actual recording itself - the sounds, including the recording artist's interpretation of the musical composition, and the creative efforts of the producer, sound engineers and background musicians. (This is referred to in copyright law as a "sound recording.") The copyrighted recording brings to life the written notes and lyrics of the musical work.”

In order to broadcast a recording it appears that you have to obtain rights for both parts. Unfortunately the ASCAP site says their license only covers one of the two. (I’m assuming it’s the same for BMI as well) Here is what ASCAP says.

“Every Internet transmission of a musical work constitutes a public performance of that work. The ASCAP license authorizes these performances for works in the ASCAP repertory.
Internet transmissions also involve the reproduction and distribution rights in musical works.
ASCAP licenses do not authorize the reproduction, or distribution of music or sound recordings, or the public performance of sound recordings (as distinguished from the music contained in the sound recordings). To obtain these rights you should contact the Harry Fox Agency, Inc. (the wholly-owned licensing subsidiary of the National Music Publishers' Association, Inc.) or the copyright owner for authorization to copy and distribute the music, and the copyright owner of the sound recording (usually the record label) for authorization to copy, distribute and perform sound recordings. Information on these important rights may be obtained from the Harry Fox Agency, and the RIAA, the record labels' trade association.”

What’s more, there are clauses in the DMCA that cover the specific royalties for ‘each performance’ that are due. I won’t get into the exact formula but it does say that in the case of something that is downloaded instead of streamed every instance of a download constitutes a performance. It also says that in the case of ‘archived’ performances they have to be over 5 hours in length, not available for more then 2 weeks, and must still follow all the rules related to multiple tracks from single artists etc.

Basically, what I got from all this is that buying a license from ASCAP and BMI is only half the license that is required fro web broadcasting. I haven’t figured out exactly what the easiest way for the second license is. The DMCA is a little confusing. I think a layer could figure it out, but I’m not a layer.

[radioclash]

and just checked out the UK MCPS Joint Online License they are doing for internet radio and download...of course as I thought, any alteration, sampling or rearrangement of the work is not allowed so any mashups are out :(

Couldn't go legal if I wanted to...

I wonder how they cover DJ mixes and XFM, Radio 1 and other radio stations playing mashups and white labels? How do they sort it?

Or live mashups? Performances? :?

Oh the scary thing in the UK is that you have to declare info on every track played in an Excel spreadsheet; like 10-20 boxes of info for each song including number of downloads for each track, composer and artist names, track names, ISRC etc...looks an unworkable audit for most internet radio to me.

Can't they take this information automatically in real time or from XML/ID3 tags? :roll: Of course even legally bought MP3s don't have ISRCs or Media numbers AFAIK....

[camilian]

tdsmith -

I think you are correct. I talked to an BMI rep today, and he said he thought podcasting would be breaking the DMCA but I would need to contact the RIAA or a lawyer to check for sure. He was still willing to let me purchase a license, but said that coved me from being sued by them for using thier music.. not protect me if what I was doing broke the DMCA.

I am going to contact the RIAA, but I want to make sure no one gets in trouble. Any ideas how to handle this without causing problems?

[Brian]

Basically, there's no real good way for us to talk to the RIAA about podcasting, without introducing them to the array of shows that might be breaking the DCMA. Although I can't imagine that they haven't heard of podcasting and are aware of what we're doing. I sent a half-hearted email to them in mid-October to inquire about web music licenses, but never heard back from them.

What would be best would be to get the RIAA to acknowledge that podcasting is a new mdeium, and help jointly create a new license that applies to podcasters. Maybe it requires that we segue over the beginnings and endings of our songs, and never publish higher than a specified bit rate. They had to come up with a new license when streaming music was established.

Since Coverville potentially stands to raise a huge number of red flags with the RIAA, I'll gladly offer to make "first" contact with them, and see if I can get a representative to join this discussion, and potentially establish a new license model.

[Funtime Ben]

Gulp... it seems like whatever we do we're kind of screwed. I'm just afraid that the RIAA is going to think that podcasting is just another way for people to infringe upon copyright. With so much press going to BitTorrent and the like, I'm just afraid that the RIAA will completely miss the possibilities of podcasting, because it doesn't meet any models that are currently in place.

What to do?

[camilian]

Brian, I have no problem with you taking the reins.. I was worried about you getting in trouble more then anyone else, I think if you handle it, you could cover your butt.

I agree Ben, bitTorrent is a good example of what could happen. Really when you think about it, supernova was no different then podcastalley until people started putting up illegal files. Now with a few of the podcasts I have been seeing that say "F**k the RIAA" and include nothing but illegal files. It starts to scare me a little.

[marcdark]

Gulp... it seems like whatever we do we're kind of screwed. I'm just afraid that the RIAA is going to think that podcasting is just another way for people to infringe upon copyright. With so much press going to BitTorrent and the like, I'm just afraid that the RIAA will completely miss the possibilities of podcasting, because it doesn't meet any models that are currently in place.

What to do?

I've been lurking and listening around podcasts for about a month and half right now. Some of you might know me, for those who don't. I work in the music industry, I'm an artist manager and own a label. I am currently putting together my own podcast and this is how i am approaching playing music.

a) I will be getting licenses from ASCAP and BMI. This is important, as performers should be paid for you playing or performing their recorded work.
TV/Radio/Bars/Restuarants/Stores all pay these fees, even jukeboxes do. And performers all get paid the same standard rate, multiplied by number of plays.

b) when it comes to the RIAA, and the Digital Copyright Law, which I have lots of issues on (we will get to that on my first cast, hopefully in the next week). You must obtain a license from the owner of the Master Recording when it comes to playing the song. BTW, Over the Air Radio has been grandfathered from getting this license. (score one for Big Radio), if you get permission from the label of the group you are playing you will be fine.

I've sent out a track by a group I am releasing to a few podcasts, and though you can't waive the performance fee-ASCAP/BMI (it being podcasted) I can waive the right to a fee for the license of the master copyright. I can do this because I own the master copyright along with the band.

What I am saying is, if you ask the label and I'm sure indie labels are more apt to agree to waiving their master copyright license than major labels. You should be fine.

I hope this explains some of this to you all. I'm a big believer in Podcasting, the internet and fair and reasonable sharing of music , as that is how people discover music.

If you have questions please don't hesitate to contact me.
marc@addisonrecords.com

Marc

[lumpy]

get the ASCAP and BMI if you want to play the mainstream music. but DO NOT if you play only indie and non-signed bands.

there are so many radio stations that making a podcast of what is already out there is pretty silly, so paying ASCAP and BMI fees is a waste of time if you plan on never playing ASCAP and BMI music.

I get written permission from the artists, typically at the open air concerts I record them at , or they sign it and hand me their cd for podcastplay.

Avoiding artists that have "record contracts" and certianly anyone on a label typically will get you a better diversity of music and artists that have not sold their soul in hopes of selling their music.

podcasting is about NOT doing what the local top40 station is doing, and that typically means avoiding artists signed with a label and certianly avoiding ASCAP and BMI.

I am one of the few that run a LPFM station as we do not allow any music ieven in the station that does not have signed releases from the copyright holder and we certianly do not pay ASCAP and BMI anything as we refuse to play anything they they have or represent.

The great part is that this SCARES record labels quite a bit. as artists now have a free outlet to get their music played and they can easily avoid losing control of their property to a record label while still getting airplay and becoming popular. and anyone can build their own recording studio for a few thousand dollars now. (Note the premiere album for the blockbuster band "poison" was of horribly quality taken off cassette masters and still sold millions of copies, ignore what the lavel exec's tell you about having to master your music in a multi-million dollar studio. Many bands record their own stuff in their homes with the low end cool-edit pro and a consumer audi ocard, and produce stuff that soulds as good as a 20 billion dollar studio)

If you want your podcasts to sound like all other clearchannel radio stations then please go and get ASCAP and BMI licenses and certianly follow what the poster above reccomends. but if you want to be origional and on the cutting edge, avoid any music that is signed with a label.... do those artist a favor.

[Craig]

When I told my friend about podcasting and trying to get something licensed, she told me she could not see any of the copyright holders being happy with a radio show that is downloaded to your computer, could be edited and can be traded. Did the folks at ASCAP and BMI have any reservations in this area, or did you feel that maybe they didn't get it yet?How is this different than people being able to record radio broadcasts, digitize them (assuming there isn't a digital feed available), and then edit and trade those? Doesn't it come down to the quality of the sound in the broadcast/podcast?

Craig

[Brian]

I have to disagree with one point:

"podcasting is about NOT doing what the local top40 station is doing," (I do agree with that) "and that typically means avoiding artists signed with a label and certianly avoiding ASCAP and BMI." (I have to disagree with that last point)

There are a lot of talented bands and artists ot there that are signed with a label. To lump all signed bands with the garbage that passes for corporate mainstream radio is a disservice to those talented artists.

[marcdark]

I have to disagree with one point:

"podcasting is about NOT doing what the local top40 station is doing," (I do agree with that) "and that typically means avoiding artists signed with a label and certianly avoiding ASCAP and BMI." (I have to disagree with that last point)

There are a lot of talented bands and artists ot there that are signed with a label. To lump all signed bands with the garbage that passes for corporate mainstream radio is a disservice to those talented artists.

ASCAP and BMI have nothing to do with Major or Indie Labels, and the indie label I run, the master copyrights are owned by the band and myself. ASCAP and BMI collect fees for the performance of songs, the broadcast. And the funny thing about Podcasting, is I have yet to hear a TOP 40 Clear Channel type podcast. Most songwriters and artists should seek out ASCAP and BMI help because they do lots of good things and always have for new artists, like workshops on doing it DIY, or putting together showcases for record companies, movie companies, etc. All things that can help an artist continue making their art. And unlike many Record Labels, ASCAP or BMI don't OWN anything of an artists, all they do is collect the performance fee.

marc

[DjTweed]

Any idea why they want this information?

From ASCAP....

Thank you for your interest in ASCAP Internet licensing. So that we may
better assist you with your licensing needs, please confirm whether you
will have a playlist to accompany your podcast, so users would know exactly
what songs, in what order, they will be listening to. Or, in the case that
you will only feature one song in your podcast, would you make it known to
the users that they will hear the particular featured song?

[Brian]

I believe that it is for piracy concerns. Having a published playlist allows internet searchers to find out what songs are available in your podcast, and in what order, without listening to it, giving them the ability to download your podcast, strip out the songs they want, and file-share them freely. (That was the explanation that Julie gave me for that question)

It's the same reason radio stations don't pre-announce the songs they're going to be playing. It gives listeners a chance to hook up a recording device, knowing that they'll be able to get the song they want.

I feel like this assumption is a bit dated, and was more relevant in the time of 60-minute cassette tapes. These days, using a computer with sufficient hard disk space, you can easily record a three-hour time period of a top 40 radio station, and in effect, get their entire playlist.

[DjTweed]

What is the "fair use" of 30 second clips? If I were to limit the music that I review to a single 30 second clip, do I still need to worry about all of this licensing? :roll:

[Funtime Ben]

Playlists are kind of moot if the listener has already downloaded the podcast. Playlist or not, they wouldn't have to record anything they would already have the audio file.

These are radio/internet radio paradigms developed over years.

This is where my fear of "the industry" not understanding the podcast format grows with each passing day. They are still thinking of it like radio which is going to be bad once they realize it is not like radio at all. Once the guys with the suits get a whiff of podcasting and realize that their revenue models aren't going to work with it, I'm just afraid that anyone playing music connected with the RIAA is going to get hosed. :(

[jacscul]

Hey folks...

Excuse my ignorance, I know very little about the music industry. Thanks for the previous posts, I have learned a good bit already.

I guess it doesn't matter if we make money off the podcasts or not, we still have to pay BMI and ASCAP, is that correct?

If we pay them the yearly fee do we also have to pay a per song fee when the songs are in the podcast?

If the artist is signed do we have to get the permission from the record company or whoever owns the song? Do we have to pay them a fee ?

If we talk over the intro and the end of the song do we still have to pay?

What if we only play a segment of the song, similar to the samples on iTunes, do we still have to pay?

For some of what I want to do I think I can get permission from the artist to play some stuff but it seems that makes no difference. The record company owns the songs and BMI and ASCAP gets the fee for ability to broadcast. Is this correct?

So for a guy with no extra cash starting a podcast that includes music is probably not such a great idea.

Thanks for leading the way in this new medium.

Jack Scully

[marcdark]

Hey folks...

Excuse my ignorance, I know very little about the music industry. Thanks for the previous posts, I have learned a good bit already.

I guess it doesn't matter if we make money off the podcasts or not, we still have to pay BMI and ASCAP, is that correct?

If we pay them the yearly fee do we also have to pay a per song fee when the songs are in the podcast?

If the artist is signed do we have to get the permission from the record company or whoever owns the song? Do we have to pay them a fee ?

If we talk over the intro and the end of the song do we still have to pay?

What if we only play a segment of the song, similar to the samples on iTunes, do we still have to pay?

For some of what I want to do I think I can get permission from the artist to play some stuff but it seems that makes no difference. The record company owns the songs and BMI and ASCAP gets the fee for ability to broadcast. Is this correct?

So for a guy with no extra cash starting a podcast that includes music is probably not such a great idea.

Thanks for leading the way in this new medium.

Jack Scully


Jack and everyone
Brian's first post has links that give you the links to ASCAP/BMI and I believe a link to RIAA law stuff.

First off, RIAA is owned by the major record labels and is their lobby group.
ASCAP/BMI are performance royalty collection agencies.

From what I gather, if you make less than 12,000 dollars a year from your broadcast, you pay one fee to each agency, which allows the performance of the song. You don't pay extra fees for songs played.

The main reason they might want playlists is simple they might want to credit the performers account with their share of a performance fee.

I don't know if I'm correct but I that is my understanding.

Once I get my cast up and running I will have my friend from ASCAP on to discuss.

Marc

[radioclash]

what I was trying to say (not very well) in my previous posts is that looking at the MCPS-PRS site (the UK's performance collection agency, or one of them but AFAIK PRS - Peforming Rights Society control all rights for all work played live, and MCPS do all the mechanical stuff) the nasty thing here is that they don't seem to haven't sorted out the under 12,000 dollars / non-profit issue and charge you royalties regardless per *song*?

The rate charged may be lower I don't know, but it's all the paperwork and messing around, and of course no mashups...

I may be wrong but I wish there was a simpler way because I can't see how unless you are exempt like a hospital radio station that it's workable unless you are a big commercial station... :( I would love to know someone in the UK that knows the score with the MCPS-PRS and BPI (same as RIAA here) as regards online broadcasting...but they seems to be stuck in 1997.

Tim

[notyourusualbollocks]

Ah look. I'm running a show which is up and coming alternative music e.g bright eyes, mercury rev (http://marenco.libsyn.org/). I'm not going to bother getting a license etc - I'm just going to put it out in the open. Stuff that will work in my favour:

Less than 128kbps
Tracks have commentary before them so their not clean
I'm not making any money out of it
Small labels, low profile bands.

I'm just going to take a punt.

MK

[camilian]

I don't know if I would call Mercury Rev, The Cure and the Chemical Brothers low profile bands. I hate to be a prick MK, and I feel you should be free to do whatever you want, but podcasts like this are what will bring the RIAA snooping around.

[radioclash]

I don't know if I would call Mercury Rev, The Cure and the Chemical Brothers low profile bands. I hate to be a prick MK, and I feel you should be free to do whatever you want, but podcasts like this are what will bring the RIAA snooping around.

No what will bring the RIAA around will be the smell of money being made without them getting a slice; or the latest 'statistics' saying they are losing money/jobs/etc. - and will have to have job cuts - and then 60 seconds later posting press releases that say it's a record bumper year (as happened in 2004)

They generally won't bother with a bunch of kids or people making no money, they might issue C&D's but sueing people with no money as they've found with filesharing *costs* them money and results in bad press and feeling...so they might scape-goat people but generally they'll only attack if they can win something.

If you're making money from it then you should be wary...

It's the same debate with illegal white labels vs CDs/CD-rs - record companies encourage, sometimes produce/fund or turn a blind eye to white labels as they are played by DJs and promote their artist/music.

But EMI did a Cease&Desist on the Grey Album. Why? Cos it was issued on 3,000 CDs...they see CDs as being more saleable and mass-market, and affecting their bottom line - also EMI is waaaaay touchy about stuff like this, but it does depend on the artists involved.

Podcasting just needs to be more white label underground and prove it's promoting artists and not taking the piss, and less CD supermarket like, that's all.

If you want podcasting to go mainstream and big guns, then be prepared for the likes of RIAA and BPI and FCC and others to be involved. It's a matter of money and business. They'll all want a slice of the pie, or to control it.

For example, I just bought a CD from an indie today at HMV *purely* because it was played on Yeast radio and I liked that track - *that's* the message we need to get across. We're GOOD for business, not bad.

[notyourusualbollocks]

Yip Radioclash. I wholeheartedly agree. Okay, camilian, yes Cure, Mercury Rev and Chems may not be as low key as I made it out to be but they will be the exception in the future. I have several contacts in the UK music licensing business who have told me the following:

1. Technically I would be breaking the law
2. ..but they wouldn't sue as they don't see my show eating into any CD sales and begrudgingly admitted that I may be doing them a favour if I played low key stuff.

As mentioned by Radioclash. It's the kiddies burning 50 copies of the latest eminem CD and flogging them off on the playground for 2 pounds each which are the main concern.

Let's stop with the conservatism and push the boundaries a bit. Anyway, the main reason I'm kick starting my show is because I'm so frustrated with the lack of ANY London radio show which packages new alternative releases in a nice digestable format.

Here's the feed:

http://marenco.libsyn.org/rss

MK

[camilian]

No what will bring the RIAA around will be the smell of money being made without them getting a slice; or the latest 'statistics' saying they are losing money/jobs/etc. - and will have to have job cuts - and then 60 seconds later posting press releases that say it's a record bumper year (as happened in 2004)


Yes, and if there are enough podcasts giving away free music, RIAA will target podcasting. I really liked the music that he is playing on his show and I am sure others do also. But if more people put out podcasts that give away music, the RIAA will see us as a threat and make all our lives hell. They could care less about the technology or what makes it so great, if they think podcasting is a way to share their content, they will attack. Ask anyone who ran a bittorrent site. Even though they were not hosting any illegal content, they were taken down.

I don't think the RIAA has learned that going after filesharing has hurt them at all, or they wouldn't still be doing it. -http://www.riaa.com/news/newsletter/121604.asp

I agree with what you say about supporting artists through podcasts, get bands out that don't have a following, give them a place to be heard and a place to sell their music.... isn't that what this new medium should be about?

[notyourusualbollocks]

I regard the bittorrent phenomena as something quite distinct from podcasting. It''s a mechanism to deliver VAST amounts of information efficiently. Podcasting is not about that. We're not about to see a 4GB copy of Napoleon Dynamite transferred to your movie playing iPod in 2008 just yet. That's the stuff that makes the copyright companies freak out.

Anyway, we'll see. I'm not going to be drawn into a poo fight about all this and I do become frustrated when people start claiming that a new medium such as podcasting isn't about 'this' and 'that'.

MK

[camilian]

MK,

I am not worried that they will go after you, I am afraid they they will go after podcasting in general. Filesharing, bittorrent, are great technologies, but the people in power see them as a threat. Podcasting could also be seen as a threat and that could hurt the whole idea of podcasting.

The reason we are having this conversation is to discuss ways to make our technology legit. What Coverville has done by trying to get legal is show that we understand and care about what is fair. (even if we don't agree with the RIAA and the DMCA) I would hate a bunch of podcasts that don't give a **** ruin it for people like Coverville.

Pushing the boundaries is not about giving away illegal music, it's about giving people a show they want to hear. Why are Dawn and Drew so popular? Because you can't get that show any place else. THAT is pushing the boundaries.

[camilian]

I regard the bittorrent phenomena as something quite distinct from podcasting. It''s a mechanism to deliver VAST amounts of information efficiently. Podcasting is not about that. We're not about to see a 4GB copy of Napoleon Dynamite transferred to your movie playing iPod in 2008 just yet. That's the stuff that makes the copyright companies freak out.


MK

But you are doing that. You are giving people a cds worth of free music, that they can not control the price of, or insert ads into.

The collection of music in your podcast is killer, I love everyone of those songs. Why are record companies not giving us the geat stuff that is on your podcast? I don't know. But they will see you as a person that shares files illegaly.. no matter how good your intention

[radioclash]

Let's stop with the conservatism and push the boundaries a bit. Anyway, the main reason I'm kick starting my show is because I'm so frustrated with the lack of ANY London radio show which packages new alternative releases in a nice digestable format.

MK

hello!

I'm from London, and OK maybe not alternative, but what's more alternative than mashups that are now on XFM nowadays.... :D

Nice selection, the Nouvelle Vague I heard earlier in 2004 and was tempted to play, but their version of Love Will Tear Us Apart is just sick...I like the dub version I played on my show but samba-style Ian Curtis? err...

Yeah some of those are major signings but I'd guess the likes of Low, GLC and LCD and Mylo are on indies not going to be majorly bothered - specially as that's how GLC got started, distributing MP3s...and some of those are happy to be mashed/remixed too...(Low and Mylo...)..and the Annie track is produced by Richard X.

[cowboy2710]

I talked to both BMI and ASCAP and my agreements are in the works. However, since both these organizations pay the creator (writer, composer) and not the performer of the record been played it was pointed out to me that a license agreement with Soundexchange.com is also required because they pay the actual performer. That's where it seems to get sticky, though. Their agreement DOES NOT cover MP3's or other forms of user downloadable, tradeable etc. podcasts. A flash stream however would be since it is not user downloadable.

Bernard

[cowboy2710]

I talked to both BMI and ASCAP and my agreements are in the works. However, since both these organizations pay the creator (writer, composer) and not the performer of the record been played it was pointed out to me that a license agreement with Soundexchange.com is also required because they pay the actual performer. That's where it seems to get sticky, though. Their agreement DOES NOT cover MP3's or other forms of user downloadable, tradeable etc. podcasts. A flash stream however would be since it is not user downloadable.

Bernard

[Brian]

We've got a couple of different forum topics discussing roughly the same things - can I suggest that we don't post any more replies in this topic, and keep all discussion about ASCAP, BMI, SESAC, the RIAA, SoundExchange and the Harry Fox Agency in the following forum topic?

http://www.podcastalley.com/phpBB2/viewtopic.php?t=249

Just so everyone is looking in the same place. Questions raised in one may be answered in the other.

[noodlejook]

I found a couple bands on Garageband and CD Baby and I emailed them and they sent me an email saying I could use their songs for my podcasts. If you find an indie band you like, just email them. If you do one a day, you could get lots of material in a couple weeks. The band I used was www.acrosstheroom.com. they gave me 6 tracks from one CD and 3 tracks from a new cd that's coming out next month. So, if you find a band, just email them and ask. Indie bands appreciate the fact you are doing your own indie thing.

[thinkbrink]

Hello,
Im new to the world of podcasting and do not have one of my own as of yet. I work at an independent record store in AZ and was hoping I could create a podcast for my store and the music that we stock. Most of the music we carry is on independent labels so I don't know how much I have to worry about but any advice would be greatly appreciated.
Thanks.

[ozone333]

I'm ozone333 Electronic musician and I do my own podcast of my own music, so I don't have to get licensing from BMI because I am the songwriter, the performer, the publishing company, and the band... hehehe

But I AM registered with BMI to collect my royalties from others using my music in their shows... and podcasts.. etc

If you like ozone333 Electronic music and wish to podcast any of my music, I will waive the license fee from My publishing company, but you must setup a deal with BMI so I can get my royalties. simple..

You can listen to previews of my music at http://www.ozone333.com/llisten.html
or check out a few tracks at http://www.acidplanet.com/ozone333
or http://www.myspace.com/ozone333

[chaeseco]

Brian, or anyone who knows the answer to this...

I'm considering having a guest on my podcast that is an accapella group who does covers of songs. Does the ASCAP and the BMI licenses cover this for me? or do I also have to also seek licensing from RIAA and SESAC as well? Because I will want to have them perform live, and/or play a track or two from their CDs.

Does anyone have any ideas on this subject?

I'm also considering approaching someone I know of, that has their own record company. If I interview their one of their artists or bands, with their permission... knowing that it will be in my podcast. Am I still subject to having to pay RIAA and the other licenses?

Does anyone have any information on that subject, as well?

Any information or direction that could be provided would help.

Thanks in advance.

[Brian]

Chaeseco:

The ASCAP, BMI and/or SESAC licenses will cover you - but knowing which to get is going to be important. You'll need to know which agency holds the license that the original songwriter licensed the song with.

For instance, if the a capella group cover's Sting's "Set Them Free", you'll need to find out which of the three agencies (ASCAP, BMI or SESAC) Sting licensed his songs with. Same goes for each of the songs you intend to play, or have the group perform. The a capella group themselves will probably be able to tell you the agencies, as they probably had to get the same licenses themselves in order to play the song.

[JesusGeek]

this thread sucks. not because it's not helpful and full of good info, but because it HAS to be here. It makes me sad.

I've been thinking about this lately and all I can come up with is that there's no way for an average music enthusiast to understand all this lawyer/politician talk. And that confusion is by design.

The huge media companies bought up a ton of music rights back in the 80's and 90's when these companies had money to burn. Some individuals also had the foresight to buy music rights (which is why McCartney hates Jacko... and why MJ can still afford to burn $8 million on living expenses every year without actually producing anything worth buying). But I digress.

So what I'm saying is, this stranglehold on music... this intangible, wonderful, artistic medium... was the intention of the big media companies all along. Now, through lawyers and lobbying, breaking the law and being labeled a "thief" is incredibly easy to do (and I'm not talking about deliberately uploading gigabytes of cd's from your computer with some misguided idea about "fighting the man").

The downside is that now that this incredible medium of podcasting has come along, the majority of the music that we'd like to play and turn other people on to is off limits. Even if podcasters volunteer to pay for a license, there's no guarantee the music industry lawyers won't come after them in the future.

The music industry argues that putting a song out on the internet in .mp3 format hurts their bottom line and causes them to fire people. Interestingly, many people in many industries have also lost their jobs since the internet bubble burst and the "war on terror" began. Tourism is down. Airlines need government handouts. Geeks across the country find different careers as their jobs get outsourced. But somehow the shift in the entertainment industry from a music focus to a dvd/video game focus gets ignored... time to play the blame game and start suing people to send a message. It's all about the return on the investment.

What's next? To use an often over used, passe phrase that the corporate marketers will understand... paradigm shift. People who love good music and want to share through podcasts it will move forward. If the media companies don't want to join in and be part of it, they will be left behind. Musicians who "get it" and allow their art to be shared will float to the top. Threatening and criminalizing people who are still spending money on music and just want to share their favorite music with the world is tragically stupid (but completely in the character of the RIAA).

It may take a while, but popular music will rise up and thrive. It has for thousands of years and isn't going away just because a corporation bought a copyright. The soul of great music is never for sale.

[jeffoest]

The reason that it is complex is the same reason that a lot of busines systems have gotten complex over the years - lots of legacy (and still vibrant) businesses and a music industry that has evolved over 60+years. As a result we still have a ton of legacy processes and legacy players. Many of these proceses and players have been very useful until now and perhaps they still are.

Nevertheless, it IS very complex to figure out when and how and how much to pay to get full rights to play music on your podcast. But you can't really blame one business or one 'guy' or 'the man'. It's just the way music business processes have evolved.

In the airline industry I used to be involved with systems that provide the communication and compensation 'true-ups' between airlines on a periodic basis (you know, when you're ticketed on one airline and go on another).. these systems are REALLY complex because every international airline has grown up with their own sets of tools.... If you started this from scratch, this would be an easy problem to solve. This is just one example but it's everywhere you look.

Same with the music business.

There will be some paradigm shifting and industry cooperation going on over time and I'll bet some of this will be designed to help podcasters (and in turn the industry) help market their wares. BUT don't expect the industry 'rules'/processes to change very quickly. Legacy ways of doing business is like the proverbial ocean liner - hard to stop and hard to turn with all that momentum.... And don't blame anyone - it's no one's fault. It's not a conspiracy - no one intended it to be this complex. It happens.

[JesusGeek]

Stanford University Copyright and Fair Use Center (http://fairuse.stanford.edu/)

I highly recommend anyone that cares about this stuff check out the free book Free Culture by Stanford Law Professor Lessig.

Here's an excerpt:

As the Internet has been integrated into ordinary life, it has
changed things. Some of these changes are technical—the Internet has
made communication faster, it has lowered the cost of gathering data,
and so on. These technical changes are not the focus of this book.They
are important. They are not well understood. But they are the sort of
thing that would simply go away if we all just switched the Internet off.
They don’t affect people who don’t use the Internet, or at least they
don’t affect them directly. They are the proper subject of a book about
the Internet. But this is not a book about the Internet.

Instead, this book is about an effect of the Internet beyond the Internet
itself: an effect upon how culture is made. My claim is that the
Internet has induced an important and unrecognized change in that
process. That change will radically transform a tradition that is as old as
the Republic itself. Most, if they recognized this change, would reject
it. Yet most don’t even see the change that the Internet has introduced.

We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law’s regulation of each. By “commercial culture� I mean that part of our culture
that is produced and sold or produced to be sold. By “noncommercial
culture� I mean all the rest. When old men sat around parks or on street corners telling stories that kids and others consumed, that was
noncommercial culture.When Noah Webster published his “Reader,�
or Joel Barlow his poetry, that was commercial culture.

At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
course, if your stories were lewd, or if your song disturbed the peace,
then the law might intervene. But the law was never directly concerned
with the creation or spread of this form of culture, and it left this culture
“free.� The ordinary ways in which ordinary individuals shared and
transformed their culture—telling stories, reenacting scenes from plays
or TV, participating in fan clubs, sharing music, making tapes—were
left alone by the law.

The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial marketplace.8 This is also, of
course, an important part of creativity and culture, and it has become
an increasingly important part in America. But in no sense was it dominant
within our tradition. It was instead just one part, a controlled
part, balanced with the free.

This rough divide between the free and the controlled has now
been erased.9 The Internet has set the stage for this erasure and,
pushed by big media, the law has now affected it. For the first time in
our tradition, the ordinary ways in which individuals create and share
culture fall within the reach of the regulation of the law, which has expanded
to draw within its control a vast amount of culture and creativity
that it never reached before. The technology that preserved the
balance of our history—between uses of our culture that were free and
uses of our culture that were only upon permission—has been undone.
The consequence is that we are less and less a free culture, more and
more a permission culture.

This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its motivation. But the
protectionism that justifies the changes that I will describe below is not
the limited and balanced sort that has defined the law in the past. This
is not a protectionism to protect artists. It is instead a protectionism
to protect certain forms of business. Corporations threatened by the
potential of the Internet to change the way both commercial and
noncommercial culture are made and shared have united to induce
lawmakers to use the law to protect them. It is the story of RCA and
Armstrong; it is the dream of the Causbys.

For the Internet has unleashed an extraordinary possibility for many
to participate in the process of building and cultivating a culture that
reaches far beyond local boundaries. That power has changed the marketplace for making and cultivating culture generally, and that change
in turn threatens established content industries. The Internet is thus to
the industries that built and distributed content in the twentieth century
what FM radio was to AM radio, or what the truck was to the
railroad industry of the nineteenth century: the beginning of the end,
or at least a substantial transformation. Digital technologies, tied to the
Internet, could produce a vastly more competitive and vibrant market
for building and cultivating culture; that market could include a much
wider and more diverse range of creators; those creators could produce
and distribute a much more vibrant range of creativity; and depending
upon a few important factors, those creators could earn more on average
from this system than creators do today—all so long as the RCAs of our
day don’t use the law to protect themselves against this competition.

Yet, as I argue in the pages that follow, that is precisely what is happening
in our culture today. These modern-day equivalents of the early
twentieth-century radio or nineteenth-century railroads are using their
power to get the law to protect them against this new, more efficient,
more vibrant technology for building culture. They are succeeding in
their plan to remake the Internet before the Internet remakes them.

sort of makes you think!

[JesusGeek]

BUT don't expect the industry 'rules'/processes to change very quickly. Legacy ways of doing business is like the proverbial ocean liner - hard to stop and hard to turn with all that momentum.... And don't blame anyone - it's no one's fault. It's not a conspiracy - no one intended it to be this complex. It happens.

I'm not so sure about that. Here's another quote from the book:

The two sections set up the core claim of this book: that while the
Internet has indeed produced something fantastic and new, our government,
pushed by big media to respond to this “something new,� is
destroying something very old.Rather than understanding the changes
the Internet might permit, and rather than taking time to let “common
sense� resolve how best to respond, we are allowing those most threatened
by the changes to use their power to change the law—and more
importantly, to use their power to change something fundamental about
who we have always been.

We allow this, I believe, not because it is right, and not because
most of us really believe in these changes.We allow it because the interests
most threatened are among the most powerful players in our
depressingly compromised process of making law. This book is the
story of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.

[jeffoest]

Fair enough - I'll bet that's true - there are probably some goverment forces at work that help to keep the industry the same. The lengths of copyrights would seem to fit in that classification. But I can't really comment on that dynamic without more knowledge or research.

I was just pointing out that when you have a LOT of companies that are involved in different parts of the distribution channel for any industry, every entity along that 'supply chain' has business reasons to resist change to some degree. A lot of times overall industry efficiency (especially with new technology influences) can mean some of those companies would not be needed as they once were. This means that, at least in the short term, those companies will tend to resist the changes at least until they can redefine their business models.

Bottom line, when you have an industry with a complex distribution channel (of which the music/entertainment industry certainly does), changes w/r/t how business is conducted tend to come slowly - goverment influences or not.

In the case of podcast distribution - to get the rights and pay the right people the right amounts to play music legally is extremely complex (and I think Brian would attest to, there are still undefined or gray areas) for your average podcaster. This isn't an outright outcome necessarily of a resistant industry (though from my comments above - yes - there are companies in the chain with short term resistance). It IS a result of a brand new distribution model that the industry hasn't figured out yet. And once the larger industry influencers figure it out, it will still take time to adopt new processes because of the distribution chain complexity.

[jeffoest]

Putting on my 'soothesayer' hat for a second.

I wouldn't be surprised that in the short term, there is a business model out there for some ex-industry folks with connections into record companies to help manage all this for podcasters.

For a set annual fee they would secure and manage all of the appropriate licencing in your name and additionally on a variable cost basis secure the appropriate permissions over and beyond the licensing. This business could ideally get better negotiations through volume dealings with the record companies and artists than an individual podcaster would by themselves and pass on some of that savings resulting in business value for this new company as well as the podcasters. The record companies and artists also gain business value by having a more efficient way to utilize the podcast distribution channel without having to deal with individual podcasters.

(see what we're doing - adding yet ANOTHER player into this complex chain) lol

Let's say this new company does a business plan and shows an ROI in three years. Let's further assume that they have acknowledged in this business plan that a serious threat to the longevity of the business beyond a three year period is changing business practices in the industry. They know this going in but proceed because they have shown a good ROI for the three year period. But does that mean that when the industry does want to change the way podcast distribution is done, that this company (or a few similar companies - there is always competition) and their partners will happily change? No way. Their whole business model revolves around an inefficient method of getting licences and permissions to play music on podcasts. They will resist. Are they short-sighted or awful people? Heck no. They are businessmen defending a business model that did indeed provide value to many in the chain for three years.

And the cycle continues....

[chaeseco]

Chaeseco:

The ASCAP, BMI and/or SESAC licenses will cover you - but knowing which to get is going to be important. You'll need to know which agency holds the license that the original songwriter licensed the song with.

For instance, if the a capella group cover's Sting's "Set Them Free", you'll need to find out which of the three agencies (ASCAP, BMI or SESAC) Sting licensed his songs with. Same goes for each of the songs you intend to play, or have the group perform. The a capella group themselves will probably be able to tell you the agencies, as they probably had to get the same licenses themselves in order to play the song.

Brian, thanks for the feedback. I will look into it. Thanks for getting back so quickly.

[JesusGeek]

Here's a contact for licensing from SESAC:

Thank you for contacting SESAC. We are developing an experimental license for podcasts and I will be happy to work with you. Will you generate the download and streams of the podcast from your server?

Best,

Vincent Peppe
Director and Counsel,
Internet and New Media Licensing
SESAC
55 Music Square East
Nashville, TN 37203

[jbrew22]

What if you have the rights to a song, but it is played by a different performer?

Say I'm using a Beatles song from a Beatles cover band. Do I then have the complete copyright to that music. Say I play John Lennon's Imagine on the piano and record it and put it in my podcast. Am I cool with the law???

My better judgment tells me I don't have the right but I would appreciate any help.

jason

jasonbrewer_@hotmail.com

[jeffoest]

Someone else can contribute the technical reasons, but your instinct is correct.

Basically you can't distribute anything that is not original unless you have permission or have purchased the right to do so.

[dfairch]

There are agreements our there for broadcasting internet music as with LoudCity and SWCast. I think Live365 also has licensing agreements. The problem with those is that you pay a monthly fee based on Total Listening Hours(TLH). Your stream is monitored if you are on a shoutcast server or if not, you have to send in playlist history quarterly.

Obviously this becomes a problem for podcasting as there is no way to measure access listening times of that file or calculate TLH once it is downloaded. Rules would need to be drastically altered from their present form to lend themselves to this type use.

There is so much greed and leaching by that music industry, that I can't imagine those guys changing anything. They'll hang on to the dead horse until the artists go elsewhere. Many have formed their own independent labels to get away from the vultures. Problem is "airplay". They need it. If they can't get viable airplay from internet radio, satellite radio, and yes....podcasts......I think their independence will be short lived.

It's a very brutal industry to say the least.

Just my $.02 for whatever.......

[legalrights]

Determine what kind of music you need. Every project is different, requiring different kinds of music. Ask yourself what you are trying to accomplish with your soundtrack.
Figure out where to find it: There are a lot of good sources for "production music" I'll reference a few later. But maybe you just have to use a piece by your favorite band. That brings us to the next step.
Know your rights. In most cases you do not have the right to pull a song from your favorite CD and use it in your creative work (even if it's just for "personal" use). With the recent increase in strict enforcement of copyright law it's important to make sure your up to date on what you can and can't do. Look at Jamendo.
Get worry free music. There are lots of musicians and composers out there making original music which they can give you the rights to use. Some companies exist just for this purpose; see below.

[baldandbitter]

The 30 second question was never answered...

What licensing is required to play a small snippet of a few seconds of a song, at the beginning or end of a show?