The price of using copyrighted music in your podcast

US comedian Dave Chappelle hosts a new podcast that’s like nothing you’ve heard before.

He shares The Midnight Miracle with rappers Yasiin Bey and Talib Kweli. I write “share” and not “co-host” because there’s no hosting you’d typically expect from a podcast.

There’s no story arc, there’s no tennis-like Q&A interview, there’s no apparent start and finish. It’s like you’ve been dropped into the back room of a club, well after hours, absorbing the riff between people you can’t quite make out in the haze and darkness. Then you leave.

It’s an experiment. A mix of chatter, stand-up comedy, thought bubbles, and voices distorted with reverb.

The first episode is ‘How to Inspire (Side A)’ and begins with Chappelle asking ‘How do you keep a despondent person alive?’

In parts it’s funny, in others it’s sombre.

He says ‘I had a friend that I went to high school with and served in Afghanistan. He was a mine clearer. It was a stressful job…And I remember talking to him once when he was home on leave and he said whenever you hear the news that someone got killed by a landmine in Afghanistan and as bad as that feels for you, you’ll never imagine how that feels.’

It’s a podcast you want to listen to, NOT while you’re walking the dog, or doing the dishes. But, sitting down on the sofa with a whiskey in one hand and with your eyes shut.

The magic of each episode is braced with music; episode 1 includes music from Amy Winehouse, Aretha Franklin, Robert Glasper, The Roots, and Stevie Wonder.

You might wonder how they managed to get the rights to use the music. Well, that’s a good question, because it ain’t that easy.

Deborah-Mannis Gardner worked on the music clearances for The Midnight Miracle. Deborah’s the go-to expert for global music rights clearances and president of DMG Clearances. Her ridiculously long list of clients includes 20th Century Fox, Apple, and Harley Davidson, as well as artists, Beyonce, Eminem and Snoop Dog.

In an episode of Podcasting Essentials, SoundCartel’s Nick Schildberger and Nicole Goodman asked Deborah to clarify the rules around music copyright in podcasts.

Is there a lot of demand for copyrighted music in podcasts?

“It’s growing. It really is. The Midnight Miracle was really filled with a lot of music as well as audio clips or snippets from video footage, which was really weird for me to do. I don’t usually do clips, but they asked me to, and it’s a lot more detailed. So, if you’re using a snippet of Muhammad Ali, you obviously need to get consent from the estate, but you also need to get consent from whoever produced or recorded it, and usually, it’s a sports network. So, it was pretty intense.”

What penalties could podcasters expect with using uncopyrighted music?

“When you look at penalties, I think you would probably look at either pull down notices. The platforms might not allow your stuff to go up. It’s kind of like in the world of samples. If you have a sample and you haven’t cleared it, those platforms are not going to allow the song to go up and they sometimes rely on AI to identify that stuff. I think that’s going to start moving into podcasts as well.”

How do you clear music for publication in a podcast?

“Well, the first thing I’m going to say to you is, you’re not going to reach out to the artist and you’re not going to reach out to the artist’s attorney and you’re not going to reach out to the artist’s manager. If you’re utilising music, there’s two sides to a song. You’ve got the publishing side and you have the master or label side. We look at the publishing side first. The publishing consists of the writers that have written the lyrics in the song or the music; that’s the publishing side of the copyright. So, we’re going to approach the publishers, and the publishers approach the writers. There’s a reason that a writer has signed with a publisher so that they don’t incur costs for their attorneys or whomever to deal with these things. Their publisher’s job is to oversee the approval, to facilitate the paperwork, to collect the revenue, and then take their cut.

“The same thing on the master side. Most artists are in a contract with a record label, and so you’re going to the record label to get consent for this side of the master.

“We send out letters of requests. We explain to the copyright holders what’s being used. We’re using 15 seconds background while someone discussed how Pop Smoke influenced their… I don’t know, their education. And with that information, the copyright holders reach out to their approval parties and help facilitate all of the clearances.”

How can you be 100% sure then that no single party connected to a song can just pop up down the track?

“You can never be 100% sure. This is the music industry. It’s kind of like when you go to buy a house, you look at it, you go to contract, you own that house. You’re done. In the world of music clearances, you do a deal and two years down the road your deal’s not in place. So, I mean, our industry is nothing like anything else that exists in reality.”

Podcasts are usually available internationally – do we need different licenses for each region?

 “We always get worldwide rights because podcasts are digital. So, anything that’s digital, even when you’re clearing… advertising has moved from broadcast to the internet. And so, when you talked about the internet, you immediately will say worldwide, or you’ll say geoblock. So, when I’m doing podcasts, I would never want to geoblock it. I always go straight for worldwide rights. It doesn’t matter where you’re located.”

What might we expect to pay for a music license?

 “I think if we even look at the world of films, those rates have really come down, especially like Pronouns are not going into theatre. They’re going straight to TV due to COVID. So, with podcasts, like I said, we try to do it like at $250, $500. Then the question becomes if you’ve got a huge budget, do you offer a huge amount of money to get those broader rights? I don’t know if that’s necessarily going to work with the answer, but that’s what we’re going to try to figure out over the next couple of years.”

Listen to the full interview with Deborah Mannis-Gardner on Season 5 Episode 15 of Podcasting Essentials.


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