Legalities of Podcasting

Who Owns Your Podcast and More…

In Business 101, Trademark 101 by Shannon Montgomery

If you’re anything like me, you’re a podcast addict. From fitness to business growth there is something for everyone in the podcast world. More and more people are hopping on the podcast train as a way to provide more value to their customers, build their brand recognition, and drive sales within their company. One day I may hop on that train…

But when it comes to the legal side of podcasting there is A LOT that must be considered before you get started. So, I thought I’d make a quick list of the legal concerns every podcaster must address.

If you’re interested in becoming the next Joe Rogan, take a glance at this list and do things the right way!

Copyright Considerations

If you’ve done a little research you may think that paying ASCAP, BMI, and SESAC your fees to utilize certain music in your podcast might be enough but unfortunately, those licenses won’t cover you for the podcast. The best thing you can do is to get permission for the use of any copyrighted materials you plan to use in your podcast. This includes not only music but sound clips from other shows as well as articles or books you may discuss. Because podcasts can be downloaded for later consumption or streamed automatically both public performance rights and reproduction and distribution rights are triggered.

There are a few things you can do to ensure your use of the copyrighted material is legal and safe. You can get direct permission from the copyright owner to use the material in question. If you can’t obtain direct permission, pay for a license that covers all of the rights that are triggered through podcasting. You have to think broader than traditional broadcasting rights, so you want a license that allows public performance, and reproduction and distribution. You can also develop your own music if you’re not interested in going through any of the above steps. Finally, please keep in mind that fair use is generally well overstated in what it will protect. There are no hard and fast rules, and it is only a defense to a lawsuit-so you’ll still end up in court with plenty of expenses, even if your use is eventually found to be “fair.”

The FTC Will Have Something to Say

Most, if not all podcasts run solely off of sponsorships. And just as in other media, you need to be clear about a sponsorship connection when discussing it on your show. If you’re serious about podcasting, you need to get serious about the FTC and their regulations. If you think you “won’t get caught” or no one will notice. Think again. The FTC has increased their regulation of new media outlets including social media and podcasting.

Here are the basics. If you’re working with a sponsor and you’re discussing their products or services be clear with your audience that they sponsor your show. The FTC views a sponsor very broadly. So if you’re given anything of value to say something about a particular company on your show, your listeners need to know this. If your show has its own social media pages, make sure to clearly disclose your sponsorship or advertising affiliations there as well. Try to stay away from any “celebrity endorsement” of your show or a certain product if you don’t have that celebrities permission to do so.

A general rule of thumb is this: be up front and honest with your audience when it comes to advertising and sponsorships. The FTC will call you on your BS when they see it, and that could cost you at a minimum $10,000 dollars.

Other Intellectual Property Concerns

Because podcasts are permanent, there are many intellectual property issues that could open you up to liability. These issues include things like defamation, invasion of privacy, rights of publicity, as well as trademark and other branding issues.

Defamation: Defamation covers both libel and slander. The crux of a defamation claim involves damaging someone’s reputation through certain actions. Although this does not mean you aren’t allowed to share your opinions about people or events on your show, you do have to be careful how you discuss these things.

Rights of publicity: This covers individuals rights to their name and likeness. The right to profit off of their image and personal brand. Even if that person is not famous, these rights still exist. So be careful how you utilize the images, and personas of other people.

Trademark infringement: Be careful not to create a false association between your podcast and another brand or business. This may rise to trademark infringement and could cost you a lot of both time and money. You also need to consider trademark rights when naming your podcast. You definitely don’t want to use a name that is extremely similar to someone else’s, but you also need to consider other popular media brands out there. Even if they don’t have a podcast under that name, it doesn’t mean that an infringement suit would end in your favor.

Invasion of privacy: Involves unlawfully intruding into the private life of another either through disclosing of their private information, publicizing the person in a false light, or misappropriating their name and likeness. So again, discussing trending topics and the people involved isn’t off limits, but you do need to take certain precautions when doing so.

Being aware of the above can help you make smarter content decisions and keep you out of legal trouble.

And maybe the MOST important…who owns the podcast??

This is going to come down to a question of who is helping create the show, what contracts do you have in place with these people, do you have your guests sign the proper documents, and if you have a co-host is there an agreement between you on ownership rights?

If you have an employee help to edit and create the show, it is likely that the employee will have no rights in the final product because typically any work done by an employee is automatically the property of the employer. However, if creating the podcast is not part of their actual job description and merely a side project, things can get murky.
Independent contractors will need to assign their rights to you. Having the right agreement in place with either work for hire or assignment language will help to ensure they can’t claim ownership of the podcast as a whole.

There are also certain considerations that need to be made for the guests that come on your show. It is always a good idea to get a release from them for their involvement in the podcast. This will ensure everyone is on the same page, and protect your rights in the long run.

Podcasts are all the rage and it is one form of media that will only be growing. So, before you get your show going make sure you have all of your legal grounds covered. If you plan to become the next big thing, (and you should) you will be happy that you did. If you have more questions or are interested in getting your show going send me an email to Shannon@montgomerypllc.com I am happy to help!

Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.