*before we begin*
I’ve had to take the past month or so off the newsletter to fulfill a few projects for various clients (freelancing in a pandemic, yay!). For those interested, I’ll clue you in at the end of this edition, after the new music roundup.
Last week, Spotify quietly announced and launched a new feature available to creators across the behemoth platform: the streaming service will now allow podcast hosts to include full songs from the Spotify library in their shows. This potential music-spoken word format signals new territory for Spotify’s content and business models, and spells yet more trouble for traditional music radio at large. This week, we are going to explore why this is a bigger development than the industry is letting on and how we can expect creators to take full advantage of the feature.
Previously, the incorporation of music in podcasts was legally difficult and fraught with misinformation. To use a song in a podcast, the host would need to seek out the recording’s rights-holders, request a license, and pay a fee. In many situations, these licenses are not unlimited and need to be renewed over time. If your podcast about rural America uses John Mellencamp’s “Small Town” as an intro theme, you will pay a hefty fee regularly to cover not only your current and future episodes, but previous episodes as well. If you choose to terminate the license, “Small Town” will need to be removed from all previous episodes still active online. For this reason, licensing music for a podcast can be a costly and complicated ordeal, especially for hobbyists.
But many podcasters still use copyrighted music. Proving that if you repeat a falsehood enough times people will start to believe it, many defend their actions by citing the myth of the “30-second rule.” This concept is a misinterpretation of Fair Use that contends it is legal to play a short clip of any song without having to pay royalties or license fees. WRONG. While Fair Use is a legal framework that permits unlicensed use pieces of copyrighted material, it can only be done so under very specific circumstances. It is a legal defense should you get sued by the rights-holder, but claiming Fair Use does not automatically clear you of wrongdoing. There are four factors considered when evaluating Fair Use.
Purpose and Character — Is the piece commercial in nature or is the content educational / non-profit?
Nature of Original Work — Is the original work a complex creative piece like a movie or a song, or is it a factual news report?
Amount of the Work Used — This is from where the “30-second” myth derives. If a shorter clip of the original piece is used, a court is more likely to find its unlicensed use to be fair. This, however, is a guide and not a rule: courts have found samples as small as 1 second to be copyright infringement, and, conversely, found the use of entire songs to be fair.
Effect Upon the Original Work — Does the new content damage the original value of the work? Is your remix such a banger that the entire world forgot about the original song? Does your rural America podcast express views that could damage the lasting value of John Cougar Mellencamp’s “Small Town?” If so, you probably won’t win a fair use argument.
Once again, these four criteria are guidelines, not definitive rules. As I described in my last newsletter WAP: The Radio Edit, there is a crevasse of legal gray area when it comes to content creation. Most decisions are made on a case-by-case basis, and only a court can decide whether or not your use of music is fair.
A great example of Fair Use of music in a podcast comes from Vox Media’s Switched on Pop — where musicologist Nate Sloan and songwriter Charlie Harding break down chart-topping songs from their conceptions to the minutia of their guitar strings. A podcast like this requires playing clips of the song the hosts are discussing. When Sloan describes the distorted bass tone in Dua Lipa’s “Break Your Heart,” the listener benefits from hearing a clip in the context of the conversation. In this example, the podcast is using the unlicensed work 1) in an educational setting, 3) in a small snippet, and 4) in a way that does not damage the value of the original recording. I am not a legal expert, but I would bet a good portion of my unemployment check that a court would find this use to be fair.
Ok—but what does any of this vague fair use doctrine have to do with Spotify? Honestly? Nothing.
Spotify’s ability to combine songs and podcasts works around Fair Use and licensing by allowing creators to insert songs into a podcast in the same way that a radio station inserts DJ talk breaks in between songs. Essentially, the podcast and music combines to form a single playlist, seamlessly transitioning from one piece of content to the next. No copyrights are being infringed because Spotify already hosts the song for streaming and the song isn’t technically part of the podcast—it plays in between two podcast segments and is credited with a stream in the same way as if it was played anywhere else on the platform. Here is an example of what this looks like from the “Rock This with Allison Hagendorf” podcast, exclusively on Spotify.
On this podcast, Hagendorf introduces each song with personal anecdotes, artist trivia, and even interviews—just like a traditional rock radio DJ. This combination of content and music has been a winning formula for broadcast radio stations for nearly a century, and it is only the natural progression of streaming to attempt to replicate that success. Now anyone, yourself included, can make a playlist, talk about your favorite songs, and share it with the world. If the iPod made everyone a DJ; Spotify just made everyone a Radio DJ. But most of all, this is good for Spotify’s business.
The feature is currently only available through Spotify’s own podcasting platform Anchor, which they purchased in 2019. Anchor is free to use, and offers sponsorship activation for creators, allowing podcasters to make money via advertisements. In exchange for free hosting and sponsorship activation, Anchor takes a whopping 30% cut of generated revenue. By democratizing podcasting with a free platform, Spotify is able to increase profit without having to invest in more original programming. This new fusion of music and content, the “Shows with Music” section, offers another format primed for revenue, and an innovative opportunity to connect fans with artists. One can easily imagine a playlist hosted by the major-label artists who have dominated the streaming game: Drake, Taylor Swift, Ed Sheeran, etc. In fact, it’s been done by radio and SiriusXM for years. Alice Cooper has a radio show and Pitbull has a SiriusXM channel. The only difference now is that you can too.
I welcome this opportunity to create the kind of radio that I fell in love with in high school. Driving my 2007 Honda Civic (which is somehow still running) along the highways of northern New Jersey, I always had 101.9 RXP on the radio. Mornings were hosted by Matt Pinfield, whose music-driven talk show enlightened me to artists that went far beyond my father’s record collection and the competing classic rock station up the dial. Sunday nights gave way to “Anything Anything with Rich Russo,” a free-form radio show in the truest sense. Rich’s playlist ran from current album cuts to Motown soul, and nothing could rival his combination of quality and unpredictability.
Sadly, RXP folded in 2011, and is now a Sports Talk station. Most independent rock stations have followed suit, and while college radio is able to fill this void in most major cities, many parts of the U.S. do not have an option for free-form, music-driven radio. I hope that music fans of all backgrounds recognize the opportunity Spotify has presented to bring back free-form radio under the tech-buzzword “playlisting.” There are plenty of music journalists and crate-diggers who would do an incredible job hosting a weekly or monthly playlist on Spotify.
The biggest shadow Spotify’s “Shows with Music” casts is over the commercial radio industry. If the platform is able to lock in major artists, YouTubers, or TikTok creators to host their own playlists, that will prove to be a serious challenge to radio. Your local midday host won’t only be competing with other radio stations, but also Charli D’Amelio’s hypothetical hosted playlist. Spotify could even take things a step further by creating its own Top40 radio station, using small bite audio content from popular creators and mixing them with current hits.
Commercial radio still holds one major advantage: ease of accessibility. When you get in your car, the radio dial is one click away. You push the button, and music/content immediately starts playing. If you don’t like what you hear, maybe your flip around until you find something you like. Online radio and streaming services do not have the same simplistic model. For Spotify, you need to remember to listen to your favorite artist or podcast, scroll to find it, and press play. I know it sounds trite, but that is two more steps than commercial radio; and when you’re rushing to get to work, that’s two steps too many. But radio cannot rest on this advantage, because the connected car is already here, and streaming will continue to chip away at listener’s attention, and consequently, advertising revenue.
If you choose to compete with commercial radio with your own hosted playlist, please send it my way, I’d love to hear it. As for me, I have my weekly radio show on WZBC, and New Music Tuesday.
Coach Party - Can’t Talk, Won’t
Coach Party comes from the UK and is on a rampage delivering indie-rock dancefloor bangers. I don’t have a ton to say about this song, but it gets requested weekly on my radio show. It’s upbeat and features great riffs from guitarist Joe Perry (not Aerosmith’s Joe Perry). They’ve been featured on BBC, and will tear up the US once this whole pandemic/national embarrassment is over.
Pairs Well With: drumming on your steering-wheel/bicycle handlebars
Julien Baker - Faith Healer
I’m going to level with you: there has not been a single Julien Baker song I haven’t loved. She continues to produce perfection combining swelling textures and arpeggiated open-string chords. “Faith Healer” boasts what sounds like a vocal chop around the halfway mark, demonstrating Baker’s penchant for experimentation.
Pairs Well With: staying up too late
Bleached - Stupid Boys
Blending bouncy guitars and some tropical production, the sisters of Bleached has hit gold with this earworm, which took on new meaning following sexual misconduct allegations at Burger Records.
Specifically, a way I’ve often honored my recovery is to tell my story through my lyrics — this time the subject is crazy ex-boyfriends. This started out as a jokey song, something light-hearted, meant to be danced to… or so I thought. After the most recent flood or ‘me too’ call outs around men in the music scene, I returned to this song and felt somewhat surprised, because the lyrics actually aren’t so light-hearted, and they directly refer back to experiences related to the reckoning we just saw go down. - Jennifer Clavin
Pairs Well With: every playlist, the song is a total bop.
Unemployment Chronicles Pt. III
Thanks for reading this far! If you are new, I’ve been periodically chronicling my pandemic unemployment throughout this newsletter here and here. I try not to focus too much on it, but figure my personal/professional projects are worth a mention or two. Here’s the update: I’m going on 7 months unemployed, but have participated in several projects, which are linked below.
Wanderlight: A Pilgrim’s Adventure: I sound designed and provided voice over for a Catholic educational video game, produced by Fablevision.
Hawthorne’s Shadow & Passages of the Past: I provided sound design for two virtual tours of Salem, MA.
Audiomack: I’ve started curating “Rock” playlists for the streaming service.
Be well. Remember to Vote (for Joe Biden).