Some of the biggest questions we get here at The Podcast Host are surrounding the legalities of podcasting and creating content.
We’ve been trying to trace down a podcasting expert who specialises in this sort of stuff, and that’s who we’ll be interviewing on this week’s episode of Podcraft – the show about everything podcasting from equipment to interview skills and everything in between.
Who is this expert we’re talking about? His name is Gordon Firemark, an entertainment lawyer from the United States. Gordon hosts his very own show, Entertainment Law Update.
Gordon’s job is all about negotiating contracts and helping clients when they’re starting up their companies by registering their trademarks and protecting their intellectual property.
There’s quite a few questions that come up in podcasting, and in content creation in general, about how you put your stuff out there.
Treat Your Podcast Like a Business
What are the first things you have to think about? Is there any first steps when it comes to keeping on the right side of the law when it comes to international broadcasting?
“One of the first thing that comes to mind is copyright, and I sort of categorise this under three or four categories.
The first is that you have to treat it like a business even if you are just a hobbyist podcaster. You’re making media and distributing it and that’s going to seem from the outside world like a business, so be business-like.
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Use contracts and be mindful of your property and the property of others – and that’s the first point of concern really. I would say if you are using someone else’s literary or musical material you’re probably infringing on someone else’s copyright.”
With written work, you tend to see a copyright notice at the bottom of a web page for example. Is that necessary or do you own copyright as standard? And how does that apply to audio work?
“In most countries you are not required to put a notice of copyright – basically it exists from the moment of inception of that.
If you have transaction records of when you uploaded a file to your hosting company then that’s the evidence you have proving that you own [a podcast].”
Using Music & Film Clips
Often in podcasts there are two usages of material. One of which is music and one of which is stuff like film clips or from other people’s podcasts.
A lot of people want to have theme music on their shows – you get libraries out there which are copyright free and supposedly royalty free. You get other libraries that you can buy the royalty rights to use a bit of music. All the terminology is a bit confusing.
So what are we looking for in terms of terminology that means we can use a bit of music for free? Or what should we be looking out for to buy it to use for our show forever?
“The question is whether the owner has granted you or the public the right to use their music.
Royalty free music libraries are generally in the business that you can buy it once and use it over and over again. There are certain scenarios that you buy it once for each use. So, you do need to be careful when licensing music to understand what it is you’re buying.
If the library calls itself royalty free you should be able to rely on that, but double check to make sure they are in fact granting the rights for the use that you are wanting it for – like as your show’s intro.
There are free music sources that are under what is called the Creative Commons licensing scenario. This basically means the owners are saying as long as you give them attribution and aren’t using it for commercial purposes you can use it but just don’t change it.
That’s found at creativecommons.org – that’s the organisation that manages the creation of those licenses.
Just do your homework. Don’t dive in blindly – make sure you’re buying what’s right for you.”
In terms of royalty free music libraries, you can get yourself a track for anything around $10-$50, but when it comes to commercial music it’s completely different.
There are times when it can be very expensive – if you want to use the Beatles or a Rolling Stones song then you’re going to pay a heavy price for doing so.
But there are some bits of music that are much more affordable and sometimes the owners are willing to let it go for a low price. Gordon said: “Don’t be afraid to ask, the worst they can say is no. You might be surprised at how affordable it is.”
“When a songwriter writes a song they have created a work of authorship – so there’s a copyright in the composition. These compositions are managed by a music publishing company which has essentially bought the song from the writer in exchange for paying them a percentage of the revenues.
When that’s recorded by a recording artist, there’s a second bit of creative work – the recording. This is usually owned by the record company that paid for the recording and is distributing the record.
So, when you are using a piece of recorded music you have to get permission from both the composition AND the recording.”
There is something called Fair Use in the US and Fair Dealing in the United Kingdom in which you are allowed, on a case by case basis, to use samples from a piece of work.
There’s no rule of thumb stating that you can take 10% or 20% of a song, it just comes down to what really takes the substance from the already copyrighted work.
If you’re using the piece for educational commentary or for criticism it’s much more likely to favour fair use than, for example, being used in a commercial jingle.
Fair Use (or Fair Dealing) also comes under the same principle when it comes to using a clip from a TV show or film – if you wanted to use a snippet in your podcast – but again it is on a case by case basis.
“In a worse case scenario an owner could sue for copyright infringement, which in the US could be anything from $750-$150,000 in damages. But the practical matter is the owner has to incur legal fees so they have to actually see that there’s been some damages to justify it.
But typically, just getting your piece [podcast, video or writing] taken down is usually the objective of the owner.
And some podcast hosts might adopt the three-strikes policy that YouTube does, where if you get caught three times then they start to disable your account or refuse you access to it.”
We’ve talked a bit about copyright but we wanted to go into a bit more detail about protecting our own work.
Firstly, what if we have someone else involved in our material? For example during the interview with Gordon, is that jointly owned? Should we be thinking about giving people contracts before they come on the show?
Gordon’s advice? Yes. Use a release with every guest on your show.
“Generally a workable solution is to get them to acknowledge something like that on the show, but I do advocate using a written release and I’ve actually created a downloadable release that anybody can have for free – which can be found at PodcastRelease.com
It is a little challenging to get your guests to sign something in advance, so some people have adapted it to make it a web form etc, but it’s definitely worthwhile.”
This was actually something that has previously came up in conversation with one of our members over at our premium service, which you can find at The Podcast Host Academy.
Another topic that was discussed was around trademarks. At what stage does a podcast have to get to before you would recommend investing in trademark protection?
“This is an area that does vary a bit from nation to nation. But basically, if your show title is distinctive and becomes identified with you as a brand then it’s worth protecting.
Now, your show is ‘Podcraft'. It’s a distinctive word but also suggestive of what you’re talking about, so you could probably register it under the idea that it’s a coined phrase and somewhat distinctive.
I’d say once you hit around a hundred episodes it’s a pretty good description that you’ve achieved some distinctiveness, assuming you have the downloads to prove it.”
And why should someone take that step? What’s the benefit of that?
Well quite simply you don’t want someone coming into the marketplace with a confusingly similar title for another show – whether it’s in the same or different medium.
So a registered trademark would avoid that, at least in terms of the media, and would allow for a legal challenge against anyone using the same name.
Are there any other types of contracts that Gordon might recommend having in the world of podcasting?
“If you have co-hosts, the same people on the show every episode, then it’s important to have some kind of contract between the co-hosts and even a producer to indicate who owns the show and the various rights and responsibilities.
That way in the unfortunate event that someone isn’t pulling their weight they can be dismissed and the show goes on or not. And also this would apply to monetization – who gets what.
Similarly if you have sponsorships then it’s important to have that relationship in writing, so the expectations are laid out as well as the timing of payments and that sort of thing.
Beyond that there’s not that much that would call for a contract, but there may be certain situations where it’s needed”
There aren’t too many forms like this on the internet, but you would be able to visit your local solicitor or lawyer to help draw something out for you.
Entertainment Law Update
If you’re interested in getting more detail from Gordon’s show, Entertainment Law Update, it’s a monthly show about his industry and everything around the entertainment law area.
Also, if you have any questions about contracts that you’d like Gordon to have a look at, then you can find him at firemark.com.
He also has an e-Book called The Podcast, Blog & New Media Producer’s Legal Survival Guide which is a starting point before hiring a lawyer – which can be found at podcastlawbook.com.
That’s all for this week’s episode. Thank’s again to Gordon for taking the time to chat to us and answer all our questions and we hope you join us again next week!