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(By Shawn Yesner) You’ve got your equipment, you know your topic, you have your format, your logo is perfect, and your first five shows are recorded and ready to be engineered for posting on all the podcast players. Now you need to pick out the perfect music for your intro and outro, without violating someone’s copyright and being sued!
According to the United States Patent & Trademark Office (USPTO), a copyright is “a form of protection provided by U.S. law to the authors of “original works of authorship fixed in any tangible medium of expression,” including words, numbers, notes, sounds, pictures, graphic or symbolic media, covering a wide array of subjects, including literary, dramatic, musical, artistic, audiovisual, and architectural works.
The creator’s copyright is secured automatically upon creation – meaning when the work is fixed in a “copy or phonorecord for the first time.” Therefore, your podcast is automatically copyrighted when you record it, or if you use a script, as soon as your script is created (although if you ad-lib from your script, then both the written script and the recorded podcast would have separate copyright protection). There is also a process to register your copyright with the USPTO, which provides your work with additional protections, establishes proof that you created the work, and establishes the date of creation of the work.
Although the length of copyright protection varies depending on whether the work has multiple authors and when or if the copyright was registered, typically the copyright lasts for 70 years after the author’s death.
Under the Copyright Act, you may use copyrighted material without permission when quoting, excerpting, summarizing, or making educational copies for purposes of criticism, comment, news reporting, teaching, research, or parody. These are called “fair use” exceptions to the copyright law. Be careful, however, of the myth that if you use just a small portion of a work, or if you change one word or one chord, that you will be protected from copyright infringement. Any unauthorized use that does not fall within the “fair use” exception could create liability to you for copyright infringement. Before using anyone’s copyrighted work, you want to get written permission from the copyright owner.
If you use someone’s music without permission to open or close your podcast, you could be subject to any of the following penalties:
- Actual damages to the copyright owner;
- Statutory damages to the copyright owner;
- Any profits earned from your work could be paid to the copyright owner;
- Attorneys’ fees and costs to the copyright owner;
- An injunction against using the work; and
- De-listing by podcast players (your podcast could disappear from Apple Podcasts, Spotify, etc.).
How do you protect yourself? You could obtain permission from the copyright holder to use their work; they could give you a license to use their work, or they could give you outright ownership of the work, preventing anyone else from using that music for their podcast too. For example, if you use Fiverr.com to have someone create your intro or outro music, make sure you have written confirmation from them to use their work, or that you have written confirmation that they are transferring to you the copyrighted material to use for your podcast.
You can also use work from a royalty-free website. You can find “free” music doing a simple Google search — just make sure that you are visiting a legitimate website that is licensing or selling the work. You can also attend a podcast conference in your area as many royalty-free sites are sponsoring local and national podcast conferences, and you can also find a local podcast meet-up in your area. Finally, consult with a local intellectual property attorney in your area to ensure that you are protected from infringing another’s copyright.
Shawn M. Yesner is the founder and owner of Yesner Law, P.L., and an attorney in Tampa, FL. Shawn hosts The Crushing Debt podcast, which supports the purpose of the law firm — to eliminate financial bullies from your life.
Thanks for your insight, Shawn! I’ve recently started working with a long-time radio personality in St. Louis, who would like to do a music show. I am under the impression that a music review show, talking about the artists, their songs, shows, personalities, lyrics, tours, etc would make for great program. Including short snippets of music in those efforts however = I’m under the impression that unless you pay, you can’t use the music at all. Any further insight on that for me?
#### [Shawn M Yesner](http://www.yesnerlaw.com "firstname.lastname@example.org") -
Thanks Mike! Good to talk to you today. Look forward to meeting you at Podfest or Podcast Movement.