You’re killing the podcast game. You’ve finally found the right equipment, mastered the art of remote recording and built an extensive network to book the best guests.
But what if you opened your email one day and found an accusation that you’ve used music you don’t have the rights to, or received a note from someone who claims you stole their podcast name? You need to make sure all your bases are covered on the legal front if you want to grow your listenership and — more importantly — avoid a lawsuit.
I get it, I didn’t go to law school either. Copyright law and other legalities associated with podcasting can be really confusing (or completely uncharted terrain, especially as a new podcaster), so we’re here to help.
Here’s what you need to know so you can sleep soundly at night knowing you’re not getting sued anytime soon.
Add ‘intellectual property’ to your podcaster vocabulary
Sure, it sounds sort of intimidating. But it’s actually fairly basic: According to the Legal Information Institute at Cornell Law School, intellectual property is “any product of the human intellect that the law protects from unauthorized use by others.”
Traditionally, intellectual property is broken down into four categories:
- Patent: Something that grants the patent holder the exclusive right to exclude others from making, using, importing and selling the patented innovation for a limited period of time.
- Copyright: The exclusive legal right to reproduce, publish, sell or distribute the matter and form of something.
- Trademark: Any word, name, symbol or design — or any combination thereof — used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.
- Trade secrets: Information deemed a trade secret by the Uniform Trade Secrets Act.
As a podcaster, you’ll primarily need to understand the realms of copyright and trademark law, and who better to explain these two than a lawyer who works with podcasters on the reg?
In an interview on Pod Sound School, Los Angeles-based attorney Taylor Tieman explains intellectual property as similar to other kinds of property, aka things you own, but the difference is you created this property yourself — and you can make money off it.
Podcasts fall into this category of intellectual property because even if you have guests on, you still created the space where your conversation with that guest is taking place, and you’re in control of how that conversation goes, how it’s recorded and how it’s distributed.
“There are ways you can protect your podcast in the trademark world and in the copyright world … and if you take an affirmative action and make something and it’s yours, you can protect that,” Taylor says in the episode “Intellectual Property and Podcasting w/ Taylor Tieman.”
“So you can protect your podcast episodes and you can also protect your podcast name, because that’s associated with your brand and your business,” she continues.
Some of the most common issues arise when you’re bringing outside materials into your podcast, such as music, sound bites and even imagery for your logo and other marketing materials. If you or someone directly working with you didn’t create those materials, you need to ensure you have the right to use them.
Do your homework before choosing your podcast name
So now that you know generally what intellectual property is and why your podcast falls underneath that umbrella, it’s important to learn what aspects of your podcast are protected by which laws.
According to Taylor, anything directly associated with your brand — such as your logo and your podcast name — is protected under trademark law. In comparison, copyright law protects things you’ve created that are indirectly associated with your brand, like your first two seasons of your podcast as a collective.
Pro tip: The line between these two can get hazy, so when in doubt, always consult an attorney who specializes in intellectual property.
Dave Jackson, host of School of Podcasting, expanded on trademarks in an episode titled, “Does Your Podcast Name Need a Trademark?” He argues that one of the first steps any new podcaster should take once they come up with a name they like is to plug that name into every podcast platform and search engine they can think of. By doing your research and making sure nobody else is already using your name, you not only avoid any potential legal trouble, you ensure your show will stand out among the rest because the name is 100% unique.
In that same episode, Dave interviewed Gordon Firemark, lawyer and producer/host of Entertainment Law Update. When asked about the importance of trademarking your podcast name, Firemark admitted it’s not required, and it’s an action you can’t even take unless you’re farther along in your podcasting career (and can afford to take the legal steps to do so).
“I think it’s not on the list of top-line items you must have to launch your podcast … you’ve got better things to spend your time and money on like making good content and making sure you’re in it for the long-haul,” he says. “So when you get past maybe that first 10 or 15 episodes or a year’s worth, whatever, a season, and you know you’re sticking around, and if you’re concerned other people are going to come in and be confused, then that’s a good time to do it.”
💡 Pro tip: The most official way to check if someone has already trademarked your podcast name is to visit the United States Patent and Trademark Office’s website and do a comprehensive trademark search.
Booking a guest? Don’t forget the release form — and consent
Publicity laws differ by state, but Taylor says they generally involve the rights to your name, image (i.e. photos and videos) and anything to do with your likeness. This aspect of law is particularly important to understand when it comes to how you promote your podcast. Just because a guest gave you permission to use a certain photo of them to promote your interview with them doesn’t mean you have permission to use that photo in promotional materials for other episodes of your podcast.
What it all comes down to is a word we should all know by now: consent.
Right up front, you need to know what your guest is consenting to and what they’re not. Make sure you explain exactly what you’re planning to use their photo and interview for, and if that could change in the future. For example, if you’re just recording one episode with them right now but you think there’s a possibility you might want to use this interview for a web series on your YouTube someday, ask if that’s OK (even if you never end up using it for that purpose, it’s better to know you had permission).
Release forms are the perfect way to get this consent in writing. They should clearly state what you plan to use all photos, audio and any potential video associated with that episode for. Taylor says there are a lot of release form templates online, and it’s OK to use them, but always have an attorney look it over so they can learn the specifics of what your podcast will require (or as Taylor says, they can “tailor the agreement” for you).
Skip music from the radio, just find royalty-free music
Taylor says music can get tricky for podcasters, so to avoid even the slightest possibility of a lawsuit, use royalty-free music or your own original music (or original music that your friend gives you the right to use. But make sure you have their permission in writing just in case).
- Pixabay: Copyright-free stock music by a community of creators
- YouTube Audio Library: Huge selection of royalty-free music
- Incompetech: Wide-array of tracks created by solo artist, Kevin MacLeod
- The Free Music Archive: Expansive, free music library for podcasters
- 909 Music on Soundcloud: Modern, cutting edge, podsafe songs
- Musopen: Classical music tracks
- CCMixter: A community music remixing site
There you have it: everything you need to know to avoid a lawsuit. (And hopefully we made it Legally Blonde-level accessible.)