Legal Things to Consider: Podcasting
Amongst the many things to consider during your podcasting journey is the Law. How it can affect you and your podcast is very important. Just as with music, one must follow rules and regulations to avoid any legal implications. For example, avoiding plagiarism and getting permission/giving proper credit when using or referencing another creator’s work. The legal implications are not just for the content of your podcast but also for its name, art, music, etc.
Intellectual Property Rights
Many podcasts involve impromptu discussions and one may not consider the intellectual property rights involved when publishing your podcast. To avoid legal issues it’s important to understand and follow the laws that protect intellectual property rights.
Copyright Law: When one owns the rights to a specific work of writing, audio, art, etc. A copyright owner has exclusive rights to reproduce, adapt, distribute, publicly perform, and publicly display the work – or to allow others to do so. For example, we can see copyright law being put to work in the battle over music that one artist claims is their work. Such as the Ed Sheeran copyright battle over his song “Thinking Out Loud” which was claimed to copyright Marvin Gaye’s classic “Let’s Get It On.
What implications does this have for your podcast? Not all music is safe to use for podcasting, there are copyrights that you have to pay attention to as you don’t want to be caught at the end of a lawsuit. But there is a lot of music that is still safe to use. We cover this in detail on our “Choosing Podcast Music” blog.Trademark Law: Trademark law is a little more specific and may be harder to understand. A Trademark can be any word, phrase, design, symbol, etc. that identifies one’s goods or services. One can use the same trademark for a product or service that does not correlate with yours and vice versa. As explained by the United States Patent and Trademark Office:
You become a trademark owner as soon as you start using your trademark with your goods or services. You establish rights in your trademark by using it, but those rights are limited. You’re not required to register your trademark. However, a registered trademark provides broader rights and protections than an unregistered one.
All that to say, while Trademark law is a little more forgiving than copyright law, you can still find yourself facing legal issues if you’re not careful. Do your research to avoid using the same name, catchphrase, etc. as another podcast!
Fair Use Doctrine: allows one to use copyrighted work WITHOUT permission IF, for example, “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. ” There are quite a few factors that go into whether or not the use of the copyrighted work is protected under the Fair Use Doctrine.
For example, if you use a copyrighted work in your podcast without permission and it is called into question these things will be taken into consideration
The Purpose and Character of the Use
The Nature of the Copyrighted Work
The Amount Used
The Effect of the Use on the Market
Make sure to do your due diligence when using other’s work in your show. This article goes further in-depth on the topic.
Privacy and Publicity: While someone’s work may not be copyrighted you do still need to make sure that you are following the rights of Privacy and Publicity! Meaning, that even if you are just talking about another person in your show, you are legally held responsible to avoid infringing one’s rights to privacy and publicity.
Privacy right is that you get to control information about you. A person’s right to publicity is to protect his or her name or likeness from being commercially exploited without consent and, potentially, compensation.
Defamation and Privacy
Defamation Law: is 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement
It is important to understand what may or may not happen if you improperly use copyrighted work or disregard any of the above rights/laws discussed.
Invasion of Privacy: It is important to respect individuals’ privacy rights when podcasting
Intrusion on a person’s seclusion or solitude; 2) public disclosure of embarrassing private facts about a person; 3) publicity that places a person in a false light in the public eye; and 4) appropriation, for the defendant’s advantage, of the person’s name or likeness.
Advertising and Sponsorship
FTC Guidelines: When working with brands, podcasters must make clear to their audiences that there is a relationship between them and the brands they are promoting. This means being clear about giving a review for a product, not paying for the product, or having a relationship with a brand for a product or a service. i.e. you must disclose any connection that might affect the weight or credibility that consumers give the endorsement.
This article gives a thorough layout of what FTC Guidelines are and how to follow them with your podcast and social media.
Intellectual Property Rights of Advertisers and Sponsors:
To avoid legal issues in the long run, it’s the best to stay ahead and make sure that you gain the proper permissions when using another’s trademark, logos, etc. This is especially important when working with advertisers and sponsors as this will protect you in the off chance that they don’t want you using a certain trademark etc.
Infringing someone else’s copyright may subject you to legal action. As if going to court weren’t bad enough, you could be forced to stop using the work or pay money damages to the copyright owner.
Advertiser Release Forms:
Just as discussed with intellectual property rights it is really important to cover your bases and be sure that advertisers sign release forms. Be sure to research the laws and requirements in your state but general release forms should have:
Printed Name
Address
Email and Phone Number
Signature
Names of the parties waiving rights for listed use.
Names of the parties receiving rights of the listed media.
Acknowledgement of Age
Identification and consent of Legal Guardian. Required if the party waiving the rights is a minor.
This release form can declare or provide options on how the content will be utilized, and longevity, or provide specifications if the form is for a particular activity and therefore one-time use only. Common information used in Media Release Forms are::
The party granting consent waives the right to compensation or royalties.
The party granting consent waives the right to disapprove or approve the final content created.
The party granting consent acknowledges other contracts will not be breached, by participating in the current agreement.
The acknowledgement that the Party granting consent releases any applicable business entity or school from liability and all claims.
List the class of release, which may be defined as Limited or Blanket.
List the rights of the Party receiving consent which may produce, reproduce, edit, print, trade, or share content (videos or moving photographs, illustrations, advertising, images, likeness, sound, and statements or comments) as desired.
Sponsorship Agreements: a business contract that lays out terms and conditions between a business and any brand, event, or individual promoting the company. It can also serve as a marketing agreement or brand ambassador agreement between a company and an individual. They are legally binding and ensure fair and equitable transactions. In most cases, the individual gets monetary compensation for their promotion through their medium, bringing greater awareness and business to the company paying them.
Contracts
Guest Release Forms: is a written document that maintains your control over your content.
To best protect your guest content that you use in your podcast you will want to have each guest read and sign a guest release form. This will help you in the chance that your guest decides they do not like the way you use the content they provide, whether they don’t like your editing or even begin requesting payment for their involvement. This can be avoided with the proper use of a release form. This should be done prior to recording anything (verbal or written)!
You can find an example podcast release form HERE
Producer Agreements: This is a contract that addresses the terms and conditions between a host and a podcast producer. Covering topics such as schedule, compensation, and more. This will protect all parties from future legal disputes. You’ll want to include the:
podcast’s name
Contracts start date
Recording date
Release of rights by the podcast host
Recording’s use rights, like advertising and promoting
Parties’ rights and responsibilities
Work-for-hire language
Transfer of intellectual property rights to the podcast recording
Alternative dispute resolution issues, such as the venue and choice of law, etc.
Conclusion
While you may have more of an understanding of the importance of following laws and how they can effect your podcast it is important to stay up to date and make sure that you are doing your due diligence when using somone else’s work. When in doubt, cover yourself. We are not lawyers, nor do we have legal experience, all of our provided information is from our own personal research. We highly encourage you to consult with an attorney to ensure compliance with all legal requirements.
By being aware of these legal issues, podcasters can avoid potential legal pitfalls and produce high-quality shows that comply with all legal requirements.
If you have experience or questions regarding the laws and guidelines put in place to protect an individual, business, service, etc. please share in the comments section.
By being aware of these legal issues, podcasters can avoid potential legal pitfalls and produce high-quality shows that comply with all legal requirements.
Hav
DISCLAIMER: THIS WEBSITE DOES NOT PROVIDE LEGAL ADVICE:
The information above, including but not limited to, text, graphics, images, and other material contained on this website is for informational purposes only. We are not Lawyers and all information above has been found through our own research and from following people like: Gordon P. Firemark — The Podcast Lawyer. No material on this site is intended to be a substitute for professional legal advice. Always seek the advice of your lawyers or other qualified legal professional with any questions you may have.
