Protecting Your Podcast: Licensing
Licensing intellectual property is often a significant component of producing a podcast that incorporates material created by others, such as music, photographs or film clips. Most often a podcast’s third-party content should either be in the public domain (for example, once the copyright term has expired) or be authorized for use. If it is not clear that a work is in the public domain or is not licensable, either select another work or seek legal guidance, as there can be costly penalties for copyright infringement.
Creative Commons is a nonprofit organization that helps manage the licensing of open access works to promote shared knowledge. If a work is licensed under Creative Commons, it may be used subject to certain conditions, such as providing attribution. Creative Commons content can be searched here.
When licensing a work, be aware whether the license is exclusive (i.e. where ownership in one or more of the copyright owner’s rights is transferred by the copyright owner to a third party) or non-exclusive, (i.e. where the owner retains ownership of the copyright and retains the right to license the same right to others). This can be particularly relevant with a non-exclusive license for cover art or introductory music. Additionally, only holders of exclusive licenses, which must be in writing, can sue infringers. Rights owners may be difficult to locate, especially under a tight timeline. For example, music rights may be owned by either the songwriter, publisher, record label, performing rights organization, SoundExchange or a mechanical licensing collective.
Copyright law’s popular exception is the fair use doctrine, which can be relied on when using third-party materials without authorization. However, relying on the fair use exception requires making an informed analysis because the fair use inquiry is fact dependent. The doctrine, which is codified at 17 U.S.C. § 107, provides guidelines by way of a subjective four-factor test. Section 107 provides a non-exhaustive list of six uses that are likely to be fair use, including criticism, comment, news reporting, teaching, scholarship and research. The four factors are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market. The first factor — purpose and character of the use — weighs heavily in the analysis and also relates to whether the work can be considered “transformative.” This was the issue in the 2023 Supreme Court case involving the Andy Warhol Foundation.
When licensing music, there are two separate copyrightable works — the underlying musical composition (the lyrics and music notes) and the sound recording of that composition (the recording of the performance). The copyright holder has both the exclusive rights of distribution and public performance, so using music on the podcast may require separate clearances. For instance, to play another’s music on the podcast (sound recording), you need licenses for the recording and the underlying composition. When licensing music rights, obtain only the specific rights necessary to avoid paying for rights that will not be used.
For further reading from our website on the topics discussed here, see the following insights and IP Bits & Pieces®: The New Songwriters: AI, Music and the Law, Copyrights and Co-Ownership, Trademarks and Co-Ownership, Contracting Checklist for Intellectual Property Co-Ownership Agreements, Happy Public Domain Day 2026!, and our Copyright FAQs and Trademark FAQs.