Christopher S. Penn – Marketing AI Keynote Speaker

Cover Music on the Podsafe Music Network

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Christopher S Penn
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There was a great discussion on Twitter today about cover songs and the Podsafe Music Network. Disclosure: I am not a lawyer. My understanding of copyright and intellectual property law is based solely on all the stuff I’ve read to be in compliance with the law and what ASCAP/BMI sent me when I applied for licenses for my show, the Financial Aid Podcast.

There are three basic rights when a song is created by a musician:

  1. Composition rights. This is the sheet music, the notes themselves.
  2. Performance rights. This is the expression of the music out loud.
  3. Mechanical rights. This is the recording of the music. Sometimes called reproduction rights.

In the United States, performance rights and mechanical rights are often lumped together, while composition rights are kept separate, thus necessitating clearinghouses like ASCAP and BMI for composition rights, and labels and Harry Fox Agency for mechanical rights. As I learned at Podcasters Across Borders this summer, Canada separates all three and has three distinct licensing agencies to deal with the varying rights.

When it comes to cover music on the Podsafe Music Network, an artist who uploads a cover has rights only to the performance and the mechanical; the MP3 file is both performance and recording in one. The artist does NOT have rights to the composition itself, and uploading a cover to the PMN is a violation of the terms of service, because they’re essentially misrepresenting someone else’s composition rights as their own. This also means the composer is NOT getting paid for use of their work.

When it comes to playing music on your podcast, play it safe. Only play original podsafe music uploaded by the artists or their legal representation (labels), unless you have an ASCAP/BMI license. If you’re not sure whether a song is original or not, Google the title and a lyric or two, and you’ll soon find out.

Comments

23 responses to “Cover Music on the Podsafe Music Network”

  1. Daniel Johnson, Jr. Avatar
    Daniel Johnson, Jr.

    Thanks for your thoughts!

    Listening to this episode of the Musician’s Cooler podcast prompted me to ask the question: http://urltea.com/1imd

    Reply
  2. Daniel Johnson, Jr. Avatar
    Daniel Johnson, Jr.

    Thanks for your thoughts!

    Listening to this episode of the Musician’s Cooler podcast prompted me to ask the question: http://urltea.com/1imd

    Reply
  3. Jersey Todd Avatar
    Jersey Todd

    Here’s the free legal advice for the day….

    Like everything else, caveat emptor. In every case where there is a cover on the PMN, I usually try to find out whether it is, in fact, ok to play from either Michael Butler or someone else at Podshow. Unfortunately, some times things sneak on to the network that are not cool to play. Othertimes, like the recent cover of the Howard Jones song up there, it is 100% cool.

    However, just remember, nowhere in the TOS does it say that Podshow will idemnify you if you are sued by an artist for a violation of their copyright. This leaves you with the unfortunate situation of having to sue an artist who violated someone else’s copyright that led you to believe everything is fine. This is an unenviable position to be in.

    My advice – if it feels wrong, it probably is. More importantly, with so much fantastic stuff on the PMN, why would you want to hear something that you’ve heard a 100-times before anyway?

    Reply
  4. Jersey Todd Avatar
    Jersey Todd

    Here’s the free legal advice for the day….

    Like everything else, caveat emptor. In every case where there is a cover on the PMN, I usually try to find out whether it is, in fact, ok to play from either Michael Butler or someone else at Podshow. Unfortunately, some times things sneak on to the network that are not cool to play. Othertimes, like the recent cover of the Howard Jones song up there, it is 100% cool.

    However, just remember, nowhere in the TOS does it say that Podshow will idemnify you if you are sued by an artist for a violation of their copyright. This leaves you with the unfortunate situation of having to sue an artist who violated someone else’s copyright that led you to believe everything is fine. This is an unenviable position to be in.

    My advice – if it feels wrong, it probably is. More importantly, with so much fantastic stuff on the PMN, why would you want to hear something that you’ve heard a 100-times before anyway?

    Reply
  5. maurice zondag Avatar
    maurice zondag

    interesting issue. it sure make things very complicated. as a podcaster i have to do research on every song i’d like to play in my music show, but that was one of the advantages of the pmn, where the featured music is ready for use, no additional work attached. guess not, because i can not trust if the songs are rightsfree.

    would it be an idea to embed this as a feature? so an artist or band that upload theire music garantuee all rights are handeled? managed by the artist/record company, or just because they own the stuff themselves. that would bring the original idea of the pmn i guess.

    Reply
  6. maurice zondag Avatar
    maurice zondag

    interesting issue. it sure make things very complicated. as a podcaster i have to do research on every song i’d like to play in my music show, but that was one of the advantages of the pmn, where the featured music is ready for use, no additional work attached. guess not, because i can not trust if the songs are rightsfree.

    would it be an idea to embed this as a feature? so an artist or band that upload theire music garantuee all rights are handeled? managed by the artist/record company, or just because they own the stuff themselves. that would bring the original idea of the pmn i guess.

    Reply
  7. Michael Butler Avatar
    Michael Butler

    Hey, If something gets added to the PMN that you think should not be up there, feel free to contact me directly.

    In the case of record labels uploading cover songs to the PMN, they have worked out the legalities with the composers of the songs and are paying the artists.

    I hope this clears things up but if they don’t, feel free to reach out.

    Michael Butler

    Reply
  8. Michael Butler Avatar
    Michael Butler

    Hey, If something gets added to the PMN that you think should not be up there, feel free to contact me directly.

    In the case of record labels uploading cover songs to the PMN, they have worked out the legalities with the composers of the songs and are paying the artists.

    I hope this clears things up but if they don’t, feel free to reach out.

    Michael Butler

    Reply
  9. MYN Avatar
    MYN

    Chris,
    You are partially correct. An artist who obtains a Mechanical license for a cover version of a song from the Harry Fox Agency has already paid the composer via that license. The stipulations of such a license allow for the artist to distribute, sell, stream or make available for sale on a physical medium such as a CD or vinyl.
    The Performance Rights belong to the composer/lyricist of such music and are generally split (50/50) with the publisher and are limited only to mediums (TV/Radio/Film, etc) that BMI, ASCAP, SESAC or any other Perf Rights organization has jursidiction over.
    Performance rights do not cover the physical performance or recording of a piece of music (copyright does). It doesn’t matter who records a version of Piano Man, but if it gets played on TV or Film then Billy Joel gets his Performance Royalty as writer (split with the publisher).

    Best,
    MYN

    Reply
  10. MYN Avatar
    MYN

    Chris,
    You are partially correct. An artist who obtains a Mechanical license for a cover version of a song from the Harry Fox Agency has already paid the composer via that license. The stipulations of such a license allow for the artist to distribute, sell, stream or make available for sale on a physical medium such as a CD or vinyl.
    The Performance Rights belong to the composer/lyricist of such music and are generally split (50/50) with the publisher and are limited only to mediums (TV/Radio/Film, etc) that BMI, ASCAP, SESAC or any other Perf Rights organization has jursidiction over.
    Performance rights do not cover the physical performance or recording of a piece of music (copyright does). It doesn’t matter who records a version of Piano Man, but if it gets played on TV or Film then Billy Joel gets his Performance Royalty as writer (split with the publisher).

    Best,
    MYN

    Reply
  11. Christopher S. Penn Avatar
    Christopher S. Penn

    @MYN: So, Harry Fox covers mechanical royalties, and perf. rights are covered by the agencies. Let’s say Matthew Ebel uploads his cover of Landed onto the PMN. (which, btw, is a damn good cover) Because of the perf. right split, an ASCAP/BMI license is still needed?

    Or, if Landed has been published on a CD and Harry Fox has been paid – does that mean it’s then podsafe generally, or even in that situation, do you still need a BMI license (since Ben Folds is BMI)?

    Reply
  12. Christopher S. Penn Avatar
    Christopher S. Penn

    @MYN: So, Harry Fox covers mechanical royalties, and perf. rights are covered by the agencies. Let’s say Matthew Ebel uploads his cover of Landed onto the PMN. (which, btw, is a damn good cover) Because of the perf. right split, an ASCAP/BMI license is still needed?

    Or, if Landed has been published on a CD and Harry Fox has been paid – does that mean it’s then podsafe generally, or even in that situation, do you still need a BMI license (since Ben Folds is BMI)?

    Reply
  13. Matt Searles Avatar
    Matt Searles

    I think the problem is mostly educational.. both for the artists putting stuff into the PMN and for the podcasters who use it. It might be good if this was explained when you sign up? The fact that you often do hear cover songs on podcasts can lead to the impression of this being something like a gray area.. particularly with the feeling that playing covers somehow promotes the original version, and in a way that seems one more step away from playing of the original version. On Youtube it’s it seems to be a growing feeling that if user’s create material with your content, this somehow promotes your content and so the powers that be are less likely to send a pull down notice.. Which is basically the same thing as someone playing a cover of your composition. And so it is that the zeitgeist of social media pushes back at our inherited system of copyrights. And to the extent to which copyright has a purpose to serve a common good.. and that common good is conceptualized inside of a mass market centric world view.. it seems sorta inevitable that these sort of infringements are, at least in a kind of Hegelian dialectical sense.. forcing an evolution…

    Reply
  14. Matt Searles Avatar
    Matt Searles

    I think the problem is mostly educational.. both for the artists putting stuff into the PMN and for the podcasters who use it. It might be good if this was explained when you sign up? The fact that you often do hear cover songs on podcasts can lead to the impression of this being something like a gray area.. particularly with the feeling that playing covers somehow promotes the original version, and in a way that seems one more step away from playing of the original version. On Youtube it’s it seems to be a growing feeling that if user’s create material with your content, this somehow promotes your content and so the powers that be are less likely to send a pull down notice.. Which is basically the same thing as someone playing a cover of your composition. And so it is that the zeitgeist of social media pushes back at our inherited system of copyrights. And to the extent to which copyright has a purpose to serve a common good.. and that common good is conceptualized inside of a mass market centric world view.. it seems sorta inevitable that these sort of infringements are, at least in a kind of Hegelian dialectical sense.. forcing an evolution…

    Reply
  15. Brian Ibbott Avatar
    Brian Ibbott

    There has to be some way for the PMN users to be able to identify them as cover songs. A podcaster symbling upon a song titled “Total Eclispe of the Heart” will have a pretty good idea that it’s a cover. But a less known track may not be as readily identifiable, and if the podcaster plays it without the appropriate ASCAP/BMI/SESAC license, they could be in trouble.

    That said, I’d love to see more covers on the PMN, with identification. Ironically, it’s a way for a new band to demonstrate what makes them unique. You just strip out what you know and recognize from the cover, and what you should be left with is that band’s unique sound.

    Reply
  16. Brian Ibbott Avatar
    Brian Ibbott

    There has to be some way for the PMN users to be able to identify them as cover songs. A podcaster symbling upon a song titled “Total Eclispe of the Heart” will have a pretty good idea that it’s a cover. But a less known track may not be as readily identifiable, and if the podcaster plays it without the appropriate ASCAP/BMI/SESAC license, they could be in trouble.

    That said, I’d love to see more covers on the PMN, with identification. Ironically, it’s a way for a new band to demonstrate what makes them unique. You just strip out what you know and recognize from the cover, and what you should be left with is that band’s unique sound.

    Reply
  17. Brian Avatar
    Brian

    If the PMN uploading process for artists had a check box next to the song info, indicating the song is a cover, it could also ask the artist to verify they have the authority to grant PMN license to podcasters for using the track. Not perfect, but perhaps a bit more straight forward.

    Reply
  18. Brian Avatar
    Brian

    If the PMN uploading process for artists had a check box next to the song info, indicating the song is a cover, it could also ask the artist to verify they have the authority to grant PMN license to podcasters for using the track. Not perfect, but perhaps a bit more straight forward.

    Reply
  19. noebie Avatar
    noebie

    Has anybody every actually been sued or sent “cease and desist” communications for playing a song on a Podcast?

    Reply
  20. noebie Avatar
    noebie

    Has anybody every actually been sued or sent “cease and desist” communications for playing a song on a Podcast?

    Reply
  21. Brian Ibbott Avatar
    Brian Ibbott

    From the most recent “Podsafe Music Network” newsletter, promoting their latest podsafe artists:

    “Ann Wilson has sold millions of records as a founding member of the legendary rock group Heart. Her first ever solo album is set for release September 11 on Zoe/Rounder Records. Get her duet with Elton John, “Where to Now St. Peter” and a fantastic authorized cover of Led Zeppelin’s “Immigrant Song”now on the Podsafe Music Network!”

    The link takes you to the Ann Wilson page, where there’s no mention of needing an appropriate license to air the tracks. Does the fact that the “Where To Now, St. Peter” track is a cover of Elton’s original allow this, and is Podshow somehow footing the bill to ASCAP/BMI/SESAC based on how many plays of the “Immigrant Song” appear on its member podcasts?

    Reply
  22. Brian Ibbott Avatar
    Brian Ibbott

    From the most recent “Podsafe Music Network” newsletter, promoting their latest podsafe artists:

    “Ann Wilson has sold millions of records as a founding member of the legendary rock group Heart. Her first ever solo album is set for release September 11 on Zoe/Rounder Records. Get her duet with Elton John, “Where to Now St. Peter” and a fantastic authorized cover of Led Zeppelin’s “Immigrant Song”now on the Podsafe Music Network!”

    The link takes you to the Ann Wilson page, where there’s no mention of needing an appropriate license to air the tracks. Does the fact that the “Where To Now, St. Peter” track is a cover of Elton’s original allow this, and is Podshow somehow footing the bill to ASCAP/BMI/SESAC based on how many plays of the “Immigrant Song” appear on its member podcasts?

    Reply
  23. Muzica Noua Avatar
    Muzica Noua

    My guess is aprox. 20% will do what you said, the rest wont even care ..

    Reply

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