When I speak to audiences of podcasters, I often joke that if you feature licensed music on your podcast, a lawyer will shoot you in the face. Well, this week I got to speak in front of a room full of the people that ordered the hit: music industry executives. I was given the honor of keynoting the Podcasting Track at this year’s MusicBiz 2018 in Nashville. Given how little these two universes intersect in practice, I felt like I was giving a keynote extolling the virtues of beef to VeganCon 2018.
Now, there have always been music podcasts; they’re just difficult. I started listening to music podcasts all the way back in 2005, with Brian Ibbott’s Coverville and my friend Chris McDonald’s Indiefeed . In their cases, they had to individually clear the rights of every song. Today, there are some very popular music podcasts–but they often come directly from labels or artists who can successfully clear and/or monetize licensed music. I listen to Group Therapy and Anjunadeep Editions every single week, which are shows produced by the labels that own much of the music featured. Music podcasts could and should be successful–-according to Edison’s quarterly Share of Ear® research, we spend 77% of our time listening to music, and 23% to spoken word audio. But there is no clear path for the average podcast producer to include licensed music on podcasts.
There is still a lot of confusion out there amongst podcasters about using licensed music. Nearly every day in the various Facebook podcasting groups I belong to, I see someone claiming that it’s OK to include that Imagine Dragons song in their show, because it’s “fair use.” Fair Use is a legal term, not a general sense of fairness, and let me tell you–there is almost NOTHING you can think of in terms of podcasting licensed music that is considered Fair Use. For clarity on these matters, I always rely on the sound legal judgement of my friend David Oxenford, who summarizes the main issues succinctly here. TL;DR–see “Face, Shooting in the.”
Here’s the thing: back when podcasting was a Rube Goldbergian system of pulleys and gears to download a file and sync it with your Shuffle, podcasting music was essentially like printing your own CD’s–which means paying every royalty you could think of. But things have changed, both in music and in podcasting. Spotify Mobile lets you cache songs, which is functionally like downloading them, since you can “keep” them as long as you are a subscriber. More importantly, Both Spotify and Pandora are ramping up their podcast content, and Spotify is already claiming a spot as one of the leading podcast clients after the Apple ecosystem. There’s nothing “downloaded” about a podcast from Pandora and Spotify–it’s functionally streamed, just like the music. There’s not much that makes a show on these streaming services a “podcast” other than saying it is a podcast. Tech has changed, and with it so has the relevance of some of the various rights and licenses surrounding the performance of music.
Given those changes, it’s time for the music industry to change, too. With a simple, blanket license for podcasting that isn’t too onerous, the labels could print free money. If that isn’t impetus enough, consider the stat I posted earlier that we spend 77% of our time listening to music, and 23% spoken word. If the streaming services become more and more important to the podcasting space (and I believe they will), that means the labels will theoretically take a 23% haircut from the royalties the streaming services pay them, as some of the time formerly spent listening to licensed music shifts to podcasts. And that is if we believe that 77/23 is static. In four years, Podcasting has doubled its Share of Ear from 2% of all audio consumed to 4%. That is remarkable growth. To date, that growth has come from a shifting of the spoken word pie, but it’s not hard to see time spent with podcasts encroaching on music as well.
What all of this means is that figuring out a simple way to license music for podcasts is a win-win for everyone involved. Lowering the barriers here will result in more music, more royalties, and better podcasts! I can tell you from experience–doing a music podcast without actually being able to play music is like ordering the tasting menu at Gotham and spending the rest of the night having the dishes described to you in detail but not actually served.
And for my fellow podcasters, you want this to happen. Being legally impaired against frictionless use of music in podcasts locks you out of the earbuds of millions of Americans. Fix this, and watch podcasting explode. I was encouraged by the reception I got at MusicBiz on the topic. Let’s find a way in the next few years to stop the shootings.
