April 9, 2006

Is that a Podcast in your pocket or are you just happy to hear me?

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Ok, not the snappiest title for this posting…

Lots of controversy over Podcasts these days.  First you have public performance organizations like ASCAP and BMI saying they need to charge you in order to grant you a license for them.  Next you have some record labels getting mad about them.  Then there are the publishers who demand a license be granted for the use of the copyright protected music ( a mechanical license) and payment.  Finally you have the people that make them.

(Some claim Adam Curry is the grandfather of Podcasting ( yes, the old MTV VeeJay).  His Podcasts can be found at lots and lots of places.  He’s been making them for years. His Curry.com is loaded with info and tips.

Others claim Podcast is a combination of of Apple’s "iPod" and "broadcasting" and was a genius marketing ploy created by Steve Jobs.)

So what is a Podcast.  My opinion, when you get to the bottom line, it’s a big audio file for download.  A Podcast can also allow you to subscribe to a feed and receive new podcasts automatically – usually for free.  the iTunes store has a ton of Podcasts, and there are many many many many more out there.

Basically, record something, about anything you want, and make it available for people to download.

So what’s the problem?  Well, to begin, ASCAP and BMI claim that if you use music in your Podcast, and the songwriters in your Podcast are members of their organization, you need to pay for the public performance use of the music.  ASCAP and BMI, among other things, go out into the world and collect money for their members each time their member’s music is publicly performed (for example,  played on the radio, played on TV, played in a bar etc).  If you are a member of their organization, then they collect for you.  Pretty cool.

The part I don’t get is how in the world is downloading a large file a public performance?  It’s just downloading.  Hell, you might download it and never play it.  If you do play it, how is that different than downloading just one song for free from an MP3 Blog or from iTunes?  In the end, it’s still just downloading a file.  I support and like BMI and ASCAP very much, and I realize they are just trying to create ways to make more money for their members ( that’s their job),  but claiming that the downloading of a Podcast is a public performance seems like a stretch to me.

FYI – there is no federal or state law requiring anyone to get a license from BMI or ASCAP to use music in a podcast.  As far as I am aware, you are not breaking any laws by making a podcast without paying them.

Then there are the publishers.  And this gets even more confusing.  Please take a moment to read about mechanical licenses in our FAQ - no need to retype the entire thing here.  The bottom line is, each time someone’s song is reproduced, the owner of the copyright to that song needs to get paid.  This is a U.S. federal copyright law ( Section 115 of the Copyright act. In the 1976 Copyright Act things got revised even more creating the standard used today – pretending I am a lawyer here).

When you download a Podcast the material in the Podcast is being reproduced to appear on your computer ( or more simply, a copy is being made).  Under the copyright act, when a copy is being made money has to be paid to the owner of the copyright ( a rate set by the US government – currently 9.1 cents for a song under five minutes).

Now let’s say you make a podcast with a song by The Beatles in it, you are required by law to pay the owner of the Beatles’ copyrights (oddly enough – The publishing to The Beatles’ songs are jointly owned by Jackson and Sony Corp. through Sony/ATV Music Publishing company )

So this is why Publishers are annoyed by Podcasts, simply put, publishers are not getting paid for the reproduction of their work.

And as far as record labels…. traditionally record labels make money in only ONE way. By selling the music.  Pure record Labels make no money from gigs, publishing, merchandise, performance royalties or anything else.  So, when the only thing they have to sell is being used or given away for free they get annoyed.  Some Podcasters with music in their Podcasts make money from their Podcasts.  In other words they take the thing that has value ( music) and give it away for free and them make money in some other way.

Also, Labels get concerned that someone might decide to Podcast and entire album.  Get the entire Revolver album by The Beatles for free as an MP3 download via a Podcast.

So what’s my opinion… things need to change.  Publishing laws in particular.  Labels need to find new ways to make money and stay in business and the download of a Podcast is not a public performance.

And when you use music in a Podcast, the least you can do is name the band, the song, the album and the record label.  On your homepage, provide links to places where people can go to buy it if they choose.

Now on to solving the crisis in the Middle East…

April 9, 2006 · 5 comments in The Industry

  • Aubrey

    Go Jeff!

  • daryl

    So if a download equates to a copy, and a podcast contains 15 songs and gets downloaded 5,000 times, the podcaster would owe $6,825 for publishing? How many people do you think do this?
    How would this apply to emusic? If a download there costs $.25 (40 song downloads a month for $10) & $.091 goes to the copyright holder per song, how can they make money?

  • http://www.tunecore.com Jeff Price

    Good point Daryl. And yes, under the letter of the law if the publisher has not waived the mechanical license income and a podcast contains 15 songs and gets downloaded 5,000 times, the podcaster would owe $6,825 ( provided the songs are under 5 minutes. Over 5 minutes and even more money is owed to them).
    This the problem with the current publishing laws – or is it? And that’s the great debate. Should someone or something else have the right to just take something you created and just give it away without your permission and without compensating you?
    With eMusic, the same concept applies – each time a song is copied, the publisher is owed money ( unless they got the publisher to waive the mechanical royalty owed).
    Some points to note: you can negotiate a “reduced” mechanical. This means instead of paying the full $0.091 per song, you pay a lower % – usually labels try to negotiate a 75% rate ( i.e. 75% of $0.091 ).
    Publishers really control things, more so than labels due the the fact under US federal law they MUST be paid a minimum required rate.
    They actually have even more power than you might realize. For example, when a song appears in a TV show, movie etc there are TWO license fees paid. One goes to the entity that controls the master recording ( usually the label) – this is the recording of the song.
    The other license fee goes to the entity that controls the publishing – this license lets the music get synchronized to a moving picture.
    Now, if the publisher says yes to the license but the master controller says no, you can always get someone to “cover” the song.
    However, if the publisher says no to the license but the master controllers says yes, does not matter, the song can not be used.
    In other words, the publisher has the upper hand.
    For me, the worst part is when spinART does all the work, the publisher does nothing, we generate money for them but we end up losing money.
    Kind of sucks…

  • http://www.myspace.com/lettersburning Gabriel Kubanda

    Jeff, the solution to the above dilemma is “podsafe music”. You may want your artists to know about this, go to http://www.podshow.com, and also http://www.creativecommons.com to know how to legally podcast music. My band “LETTERS BURNING” has been getting TONS of exposure on podcasts lately, and after all, isn’t “exposure” really the name of the game? also, record lables are jumping on the “podsafe” bandwagon. Epitaph and Eagle Vision Records are just two of the ones that are starting to offer their artists music to podcasters for free.
    thanks!
    Gabriel from http://www.lettersburning.com

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