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Old Dec 23rd, 2004, 12:17 PM   #1
 
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I've been asked frequently by other podcasters who are interested in playing licensed music in their podcasts about my arrangements with ASCAP and BMI. I thought I'd create a topic here on PodcastAlley where I could share what I've done and encourage others to provide input as well.

Before I go into any of this, I want to make sure that it's clear that this is not the definitive word on the legality of playing licensed music in your podcasts. I've dome some research, but it's a starting point, and I hope that others will chime in with information that they've gotten from other sources. Please post to this topic anything you can offer about the legalities of playing licensed music in your podcasts, and hopefully as a group we can identify the rules that we need to follow, and the agencies we need to pay.

First off, ASCAP. The woman I work with there is named Julie Peng, and she's the Senior Account Executive for the New Media & Technology devision. I spent about an hour with her on the phone (during a drive from Pleasanton, CA to San Francisco) explaining the whole background of podcasting. I think she gets it. Basically, as long as you're not making more than $12,000 a year on podcasting, you'll be paying the minimum annual cost of $288 (2004's price was $264; it's gone up a bit). It's not a prorated amount. If you sign a license agreement in November, you'll pay your $288, and when January 1st rolls around, you'll pay again. However, if you've been playing licensed music in your podcast for a while, you may want to pay that amount to keep your 2004 podcasts legal (unless you take them offline in 2005)

Julie was tremendously helpful. She got all my information dueing the call, and filled out the contract for me, which she then mailed to me for me to sign and return with a check.

ASCAP's license agreement can be viewed online at the folling link:
http://www.ascap.com/weblicense/

BMI is pretty much the same. I worked with Christine Iglesias, who is the Director of Internet Licensing. Their minimum annual rate is $274 for 2004, and the criteria are pretty much the same.

BMI's license can be found here:
http://www.bmi.com/licensing/webcaster/index.asp

In both cases, you must document everything you play (Artist, Song Title and Album). These are done quarterly, and I haven't filled out Q4 2004 yet, but in preparation, I've been keeping track of all the music I've played. (I'm using a FileMaker Pro database, but you can use Excel, Note Pad, whatever.)

I don't have any agreemenets yet with SESAC or the RIAA, but I understand that they have some regulations as well. Here's a good page on The RIAA's rules:

http://www.riaa.com/issues/licensing/webcasting_faq.asp

OK - that's all I've got. Please jump in with your own intel.
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Old Dec 23rd, 2004, 05:43 PM   #2
 
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You are my podcast god. Thanks for the excellent shows and for sharing your information. You are a true jewel to the podcasting/podcatching world.

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Old Dec 27th, 2004, 02:12 PM   #3
 
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Good tips there all around!

Thanks Brian.
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Old Dec 27th, 2004, 02:36 PM   #4
 
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Brian, unless I read the the RIAA FAQ wrong the RIAA doesn't offer licensing other than helping to administer the DMCA statutory license (which only applies to Internet radio, not podcasting). For podcasting you're stuck with ASCAP, BMI, and SESAC.

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Old Dec 29th, 2004, 09:28 PM   #5
 
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Brian,

I have a friend that works at a television station and part of her job is to make sure that they are covered on all music used in their programming. I was asking her about licensing a few weeks ago. They were recently purchased by Journal Broadcast Group and she went to a conference on licensing with the Journal folks in radio, web, and television divisions. At the conference they told the web folks that even with the licenses (BMI, ASCAP, SESAC) they had to follow certain rules or they could break the Digital Millennium Copyright Act. She was not interested in the web stuff and glazed over during this discussion. Are there any "rules" or is that Journal just spooking the employees?
I can't seem to find anything on-line.

When I told my friend about podcasting and trying to get something licensed, she told me she could not see any of the copyright holders being happy with a radio show that is downloaded to your computer, could be edited and can be traded. Did the folks at ASCAP and BMI have any reservations in this area, or did you feel that maybe they didn't get it yet?
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Old Dec 30th, 2004, 06:04 AM   #6
 
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ASCAP and BMI didn't have any concerns about it being a downloaded file. I did tell them that I talk and segue over the intros and outros of the songs to further inhibit extracting desired songs and trading them. Neither expressed any concern over that, but I believe that they're more concerned with royalties than copyright violation. That's more the RIAA's jurisdiction.
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Old Dec 31st, 2004, 09:01 AM   #7
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Thanks for the info Brian! You are quite a "Trailblazer" for the rest of us.

I have contacted ASACAP, and I will report back here, when I'm finished.

The part that scares me is... how will the RIAA see a podcast differently from a file-shared mp3? If both can be downloaded, traded, etc, then are they both not illeagal?

So, even if ASCAP/BMI says "no problem here" (and takes our ~$600) I'm worried that the RIAA will hunt us down. And we know what happens then....

Thanks,
George
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Old Jan 2nd, 2005, 05:25 PM   #8
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Quote:
Originally Posted by DjTweed
I'm worried that the RIAA will hunt us down. And we know what happens then....
I think the RIAA would have a hard time suing someone who has paid for the music and not delivering it at 128k. That would be a PR nightmare for the industry when they start suing folks who have actually purchased the music legally.

Brings back the Lars Ulrich Napster days huh? I've lost all respect for Mettallica, quite a shame because I was listening to them from the "Ride The Lightning" days. I wrote a rather caustic email to their site about their crappy selection of downloadable music.

The reply was "well you can get most of the bands stuff online..."

Right, in the same sorry format as a CD and the same price to boot. Basically you have to buy the whole album, you can't purchase the individual tracks, which is the point of iTunes and downloadable music in general. I don't want all of the crap music with the good stuff.

Sorry, had to add my $.02 on this one..

Respectfully,
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Old Jan 3rd, 2005, 03:42 PM   #9
 
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A few things to remember:

This is a US list - I think for the UK you'd need to talk to people like the MCPS... http://www.mcps.co.uk who are PRS also now I think, amongst others. I think this varies from country to country.

Licensing organisations, at least here don't cover independents like XL (White Stripes) or some others like Universal - they are with their own or other licensing organisations...there isn't just one or two - you need to check for each track! I think some indies don't have any licensing org looking after them either...you'd need to deal direct I suppose (?)

Do you have to sign up with say your local licensing services plus the US ones? I'd expect most US music has seperate publishing deals outside the US with local firms? Anyone know?

It's a minefield....
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Old Jan 3rd, 2005, 04:37 PM   #10
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I've been reading allot on this today and it looks like getting a license from ASCAP and BMI are not enough.

According to the RIAA's site the copyright is divided into two parts.

“The first is the underlying musical composition, comprised of the written notes and lyrics (for purposes of copyright law, the musical composition is referred to as a "musical work"). The second copyrighted work is the actual recording itself - the sounds, including the recording artist's interpretation of the musical composition, and the creative efforts of the producer, sound engineers and background musicians. (This is referred to in copyright law as a "sound recording.") The copyrighted recording brings to life the written notes and lyrics of the musical work.”

In order to broadcast a recording it appears that you have to obtain rights for both parts. Unfortunately the ASCAP site says their license only covers one of the two. (I’m assuming it’s the same for BMI as well) Here is what ASCAP says.

“Every Internet transmission of a musical work constitutes a public performance of that work. The ASCAP license authorizes these performances for works in the ASCAP repertory.
Internet transmissions also involve the reproduction and distribution rights in musical works.
ASCAP licenses do not authorize the reproduction, or distribution of music or sound recordings, or the public performance of sound recordings (as distinguished from the music contained in the sound recordings). To obtain these rights you should contact the Harry Fox Agency, Inc. (the wholly-owned licensing subsidiary of the National Music Publishers' Association, Inc.) or the copyright owner for authorization to copy and distribute the music, and the copyright owner of the sound recording (usually the record label) for authorization to copy, distribute and perform sound recordings. Information on these important rights may be obtained from the Harry Fox Agency, and the RIAA, the record labels' trade association.”

What’s more, there are clauses in the DMCA that cover the specific royalties for ‘each performance’ that are due. I won’t get into the exact formula but it does say that in the case of something that is downloaded instead of streamed every instance of a download constitutes a performance. It also says that in the case of ‘archived’ performances they have to be over 5 hours in length, not available for more then 2 weeks, and must still follow all the rules related to multiple tracks from single artists etc.

Basically, what I got from all this is that buying a license from ASCAP and BMI is only half the license that is required fro web broadcasting. I haven’t figured out exactly what the easiest way for the second license is. The DMCA is a little confusing. I think a layer could figure it out, but I’m not a layer.
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