Today, let’s talk about using legal music in your podcast. The legal stuff might sound boring, but knowing about this aspect of podcasting is important to keep you out of any legal trouble.

Let me start by saying that the following discussion only covers U.S. laws. Different countries have different laws.

Can you use any song you want whenever you want?

The general rule is no. You need to get permission to use legal music in your podcast. This rule would apply even if:

  • You give credit to the artist.
  • You’re using the music for non-profit or educational purposes.
  • You’re just using it as a background music.

What if you’re just playing 5 seconds of the song? Is this okay?

It depends. However, it is important to just err on the safe side, and always assume that is it not okay. No matter how short or long the music you’re playing is, you can still get into trouble for copyright infringement. However, one can use the “fair use” defense in limited cases.

When can you use the “fair use” defense? 

“Fair use” is using any copyrighted material for purposes of criticizing, commenting, parodying, news reporting, and teaching the copyrighted work.

However, “fair use” is not a license, but ONLY a defense against claims of copyright infringement. The judge would still have to determine whether the use of the copyrighted work is fair, by looking at four different factors:

  1. The nature of the original work
  2. The nature and purpose of the alleged infringement
  3. The amount of the original work used
  4. The impact of the alleged infringement on the original work.

When can you NOT use the “fair use” defense?

If you’ve repeatedly been using the music every week for your intro music, theme or segues, that definitely does not fall under the “fair use” defense.

How do you get permission to use legal music in your podcast?

  • Option 1: By buying a license to play the music.
    • Buy a license from ASCAP, BMPI, or SESAC. This can cost you a couple of thousand dollars a year. Some might require you to report quarterly on how the music was used. There’s also such a thing as royalty-free music where you just have to pay the fee once and you won’t have to pay more royalties or licensing fees.
  • Option 2: By using Creative Commons music exclusively.
    • Creative Commons’ licenses implicitly give you permission to use the music. However, just because you’re using Creative Commons’ music in your podcast doesn’t mean that you can use the music any way you want. You still have to carefully check what’s covered by the license.
    • The best Creative Commons’ license for a podcast is to use CC -BY, which only requires you to provide attribution. If you don’t know how the artist wants to be credited, contact him/her directly. Avoid non-commercial CC licenses so you can retain as much money as possible from your podcast.
  • Option 3: By asking permission from the rights holder.
    • This is when you contact independent artists directly and obtain written permission from them. This only becomes an available option when music license is not covered by a company like ASCAP (Option 1).

Where can you get podcast intro music?

Check out our other article on where to find the best resources for podcast intro music.