Podcasts have become increasingly popular and are here to stay. Many influencers and businesses are using podcasts to build a platform, highlight their expertise, and expand their reach. As with any medium, sharing information on a podcast can present legal issues that, if ignored can cause major problems for even the good-intentioned influencer. In this article, I will highlight just a few of the potential legal issues associated with podcasting and intellectual property, and give you some tips and tools to avoid infringement while using a podcast as a platform.
The main legal principles that come into play with podcasts are copyrights, the right of publicity, and trademarks.
Let’s take a look at what these legal principles mean, how they’re applied in podcasting, and what you need to know to avoid getting into trouble.
1. Copyrights
Broadly speaking, copyright is a form of legal protection covering “original works of authorship fixed in any tangible medium of expression.” In plain English, copyright is the right to copy, publish, distribute, perform, display the protected work, or create derivative works based on the protected work.
How does copyright apply to podcasting?
There are many creative and essential production elements to a successful podcast: intros/outros; artwork and logo; the story/interviews; etc. All of these pieces to the podcast puzzle carry a risk of infringement.
- Intros and Outros: Most intros and outros typically consist of some mix of music and speech. Music, in its many forms, is copyrightable once recorded. This means you cannot simply download Beyonce’s “Single Ladies” track and use it for your intro or outro without her permission. This also means you can’t just search the internet and use music you like (even if the artist hasn’t yet reached Beyonce’s status). You must have the artist’s consent for any music you use, preferably in writing in the form of a music license agreement.
- Artwork: Like music, any artwork or photography you use to market your podcast (like, on a blog or social media featuring your podcast, for instance) will either have to be your original work or be licensed for use from the creator/copyright owner.
How to Avoid Copyright Infringement with Your Podcast
The easiest way to avoid infringement is to create your own original content because as the creator, you would be the copyright owner. Now, if you’re anything like me and your music and graphic skills aren’t what pays your bills, you should keep your day job, and make sure you have permission from the original creator to use their work. If you don’t have time to reach out to Beyonce’s people, there are tons of creative commons websites where you can get royalty-free music or images like: Creative Market, Pond5, and even YouTube has a royalty-free music library.
If you decide to hire someone to create a logo, artwork or music for you, be sure to have them sign a work-for-hire agreement or a copyright transfer agreement to ensure you are the owner of the final work product.
2. The Right of Publicity
The right of publicity (ROP) is the right to control the commercial exploitation of a person’s name, image or persona to sell products or services. Images, likeness, voice, and appearance in a video, broadcast, on the radio (podcast), or on a website are all included within a person’s ROP. And guess what? You have a ROP, I have a ROP, EVERYONE has a ROP! These rights are not exclusive to celebrities.
How does the ROP apply to podcasting?
Whenever someone makes an appearance on your podcast, in order to publish their name, likeness, voice and/or feature images of them on your website, blog or social media, you will need to get their permission to do so.
How to Avoid ROP Infringement with Your Podcast
Releases, releases, releases!
Before you feature anyone on your podcast and/or your website, have them sign a written release of their right of publicity in connection with their appearance on your podcast.
3. Trademarks
A trademark is generally a word, phrase, symbol, or design, or a combination, that identifies and distinguishes the source of the goods or services of one party from those of others, typically a brand name or logos that appear on goods and/or services.
How do trademarks apply to podcasting?
Name: Your top priority is to make sure your podcast name is not already associated with a registered trademark in the media space. You should conduct a trademark search to make sure you have first rights to the mark. Also keep in mind in order to submit your podcast to the iTunes Podcasts store (and probably other podcast hosts), you must certify it doesn’t infringe on the trademark rights of anyone else.
Logo & Artwork: A logo is a very important asset to any brand so you definitely want to invest in a unique logo and cover artwork. Your logo and cover artwork will be featured anywhere you will be marketing and/or selling your podcast. You must be careful to choose a logo and cover artwork that is unique and also original to you.
How to Avoid Trademark Infringement with Your Podcast
Podcast Name: After you confirm the name for your podcast is not a registered or common law trademark owned by someone else, you’re good to go! To avoid people infringing on your mark, you should definitely register your name as a trademark and use the ® symbol to denote that your trademark is registered. Even if you do not register your trademark, you can and should use the ™ symbol to give notice that you are claiming the trademark.
Logo: As with copyright, creating an original logo is the easiest and safest way to avoid trademark infringement. Once you have determined you are all clear on using your trademark name, make sure whoever you hire to create your logo and/or artwork signs a work-for-hire agreement or copyright transfer agreement. (That is if you decide not to create your own logo).
Happy podcasting!