Podcasting is a great medium for creating content for your audience with some unique benefits. It is more popular than ever and the resources about starting a podcast seem to be popping up every day.
One often overlooked topic, however, is the legal issues that podcasters should consider.
As an attorney who has been a podcast host and has worked with creatives and content creators for the last two years, I’ve been able to compile a comprehensive list to help every podcaster feel confident that their content (and businesses) are protected.
If you didn’t skip over the legal article already (you rock, by the way, I see you), your first question is likely “why does a podcast host need to be concerned about legal issues?”
Many podcast hosts do not monetize their podcasts and instead either create content as a hobby or as a marketing vehicle for their business. No matter what your purpose, all podcast hosts are content creators who should have a basic understanding of certain areas of law. To make this easy, this article will look at the three different legal topics that may impact a podcast host.
And no scary legal stories. This is a happy article.
3 legal steps podcasters need to know
Footnote. (Lawyers LOVE footnotes.) Please bear in mind that this article is providing general information and this article does not create an attorney client relationship between you and I. Speak to an attorney if you have questions. We can be fun!
You’ve decided to start a podcast! Taking that leap is exciting, but can also be pretty overwhelming.
After choosing a topic, podcast hosts typically brainstorm the name for the podcast. The naming is such a fun part of the process. Who doesn’t love a good pun? While podcast names are important for many reasons, one critical consideration in choosing a name is that it does not infringe on another person or company’s trademark.
Ack! The word infringe is scary! It conjures up those internet stories you read about with terrifying and threatening letters from lawyers, costly rebrands and monetary judgments.
But have no fear, there are a few steps you can take to protect yourself. The first step is a basic understanding of what a trademark is.
What is a trademark?
A trademark is a source indicator, and it can be a word, phrase, logo, sound, or even a color like how Tiffany trademarked the color Tiffany Blue. Put simply, it identifies the source of goods or services, meaning the product or service that you have created, as distinguishable from others.
To qualify for registration, a trademark owner must use the trademark “in commerce.” This means that goods or services are sold using the mark. Trademarks do not have to be registered with the United States Patent and Trademark Office to be afforded protection, although registration has some great benefits.
Trademark law is very specialized, so we recommend speaking to an attorney. Before you do that, there are some steps you can take to see if a name is available.
How do I know if a podcast name is already in use?
Time for research!
Search engines like Google and social media platforms are a great place to see if the name is already in use. Your focus should be whether the name you are choosing is likely to be confused with a trademark that is already in use.
To do this, look for names that are the same or similar to the one that you are choosing. Changing one word in a name or making a word plural is often not enough to distinguish one mark from another.
You should also search in the Trademark Electronic Search System, or TESS, which is the USPTO’s database of registered trademarks and prior pending applications..
Both of these tools are great ways to make an initial inquiry into a potential name. Trademark attorneys also have access to databases to assist in your search and can provide a written opinion whether the name you have chosen is clear.
If you are looking to monetize or create a brand around the name of your podcast, you may also want to consider applying for trademark registration. This process can be long and complicated and involves many steps, so for this one, we always recommend you speak to a knowledgeable attorney who specializes in trademark law.
Can I use my favorite song in the intro or outro of the podcast?
Another commonly asked question in the podcasting world centers around using other people’s content.
You may want to use a piece of music in your intro/outro or you may want to read an excerpt from a recently published article. These materials are often protected by copyright law. Legalese alert! (Don’t worry, we will explain it and never use it again).
What is copyright law?
A copyright is a form of protection for an original work that is fixed in a tangible medium. That just means that you (the creator) have made a work that is permanent or stable and can be communicated to others.
Because of this, ideas cannot be protected, only expressions of those ideas. A good example of this is a photograph, the text of an article, or a recorded podcast. Although the ideas in this article are not protected by copyright, the way I have written them are.
When you are not the owner of a work and you want to make use of it, you should always ask for permission. You can ask for permission informally or you can purchase a license to use another person’s work.
A license is a right to use another person’s copyright protected materials in a certain way. For example, in the case of music for your podcast, if you go to a website that sells music to be used in a podcast, you are likely purchasing a license that limits you to that use. It is really important that you not only purchase a license but understand its terms so you know your permitted uses.
However you get permission, always make sure to get it in writing so you have a record saved.
What is fair use?
I bet you are thinking to yourself, “well what about fair use?” (I also read minds!).
While fair use is a defense to a claim of copyright infringement, it does not mean that it automatically gives you permission to use another person’s work. It just means you have a defense in the event someone alleges you have infringed their work.
Common forms of fair use are commentary, criticism, or parody. When in doubt, get an attorney’s opinion about whether your use constitutes fair use.
What should I do if I get a cease and desist?
If you do receive a cease and desist, don’t ignore it! Unfortunately, it likely won’t just go away.
Check the source of the cease and desist and consult with an attorney to see your best course of action.
After you have picked your name, many podcasters will then create a website or add the podcast feed to an existing website.
You may be thinking “but I don’t live in California!” Since I am guessing you will likely have California residents accessing your website, it is good practice to include one.
If you have visitors to your website that are European Union residents, you may also have to comply with the EU privacy law, or GDPR.
Terms and conditions
Terms and conditions are another useful document that, although are not usually legally required, are very helpful to a content creator. Terms and conditions on a website, among other things, will place the website visitor on notice about the ownership rights of your content, protect your intellectual property, can include important disclaimers, and can limit your liability to users.
For podcasts that may discuss controversial or sensitive topics or if you are licensed professional offering information to the public, a disclaimer is a good way to provide a warning to listeners. Some examples of these subjects are finance, health and wellness, legal, mental health and criticism or comment. It can also help limit your liability for information that you are disseminating.
Now that your podcast is ready to go, there are a few scenarios where you may need to enter into a contract.
If you are creating with a co-host, I highly recommend entering into a partnership agreement before you start creating. Having a plan of action in the event you and your partner part ways is not only legally smart, but it will also give you peace of mind.
A partnership agreement will allow you to provide for contingencies in the event you want to sell your podcast, one partner wants to exit the partnership, or you have a dispute. Coming to an agreement while everyone is excited about creating together is a lot easier than negotiating these points when there is a dispute.
Planning to have guests on your show?
If so, we recommend a likeness and biographical release for each guest that appears. The release can give you permission to use the guest’s image and name in connection with your podcast. It can also include language that will allow you to repurpose the content for other projects, such as articles or books.
Having a likeness and biographical release for all guests, starting with the first one, is a smart plan even if you don’t have plans to use the content outside of the podcast. The best laid plans can always change!
You may also be thinking … “I’ve been a guest on many podcasts and no one has ever asked me for a release!” Be the trailblazer. A release can protect you and your guest and you will be thrilled you used a release when you get your first book deal.
Ads and sponsorships
Each podcast host has a different motivation for starting their podcast. If your podcast gains in popularity and has an engaged audience, there are a lot of great opportunities for monetization.
If you strike a deal with a sponsor or advertiser, we recommend that you utilize a contract to memorialize the deal. Some common terms in a sponsorship agreement include:
- Payment terms
- Intellectual property rights
Representations and warranties
First, you will want to be sure that the deliverables are clearly laid out so the sponsor knows exactly what benefits they will be getting in exchange for the money being paid.
Some questions to consider are:
- Will the sponsor be the only advertiser on the episode?
- Will you be permitted to work with other sponsors that may compete with this one?
- Does the advertisement include social shares on social media channels? How many?
- You always want to include payment terms, such as when you get paid, how much, and what happens if the sponsor does not pay.
If you are including information about the sponsor’s product or service, it is also important that the sponsor represents that any claims being made about the product or service are true.
Finally, you want to be sure that the sponsor has the right to share the company or brand materials that the sponsor wants you to share with your audience. Having all of these terms, and others, in writing, helps a podcast host avoid conflicts later.
You can always start now
Congratulations! You made it to the end.
That may have felt like a lot of information. You may feel a little overwhelmed. But don’t panic!
If you are already podcasting and haven’t had a chance to implement some of these items, it is ok. You can always start now.
Sit down and audit your processes and see where you can make some small changes discussed in this article.
If you aren’t sure, consult a lawyer who understands podcasting. Trust me, if you can start a podcast, you can definitely get a handle on these legal issues.