“Podcasters are no strangers to legal disputes. In fact, many podcasters have been hit with lawsuits ranging from defamation to copyright infringement. As a result, it’s important for podcasters to be aware of the legal risks they face and take steps to avoid becoming the target of a lawsuit.”
In 2004, two friends, Adam Curry, an MTV Video Jockey, and Dave Winer, a software developer, decided to find a way to download radio broadcasts onto an iPod—a hot bit of technology that had been launched just a few years before in 2001.
They came up with an RSS (Really Simple Syndication) aggregator to be used with their iPodder software to extract audio files and store them on an iPod, from where they could access the transferred radio broadcasts and listen to them at any time, on-demand, and on-the-go. Hence, the birth of the ‘Podcast’, a platform using an iPod for distributing and accessing broadcast audio content. It didn’t take long before the entertainment, educational, and even commercial value of the Podcast became apparent, with everyone from political pundits to health and fitness experts, investment gurus, and yes, even lawyers hosting their Podcasts both as a means to get their message out there and to attract an audience far beyond what they could afford to achieve if paying for commercial radio. But, as with any venture into new technology, this innovation too comes with its legal dos and don’ts.
An On-demand Earful
The reason that Podcasts are so popular is because they combine on-demand listening convenience (e.g., while at the gym, walking the dog, or driving) with the ability to be both entertained and informed. Although the vast majority of Podcasts are audio only, in 2022, YouTube entered the Podcast market with various video offerings (obviously lacking an RSS feed), and Apple offers its popular ‘Ted Talks Daily’ for video viewing. But notwithstanding those efforts, the medium has largely remained audio-based.
Podcasts are very commonly subscribed to via such formats as Apple Podcasts, Spotify and Google Podcasts. While other forms of broadcast media require, for example, FCC licensing, Podcasts remain unregulated and can be created using only a microphone and recording software.
So, What Are the Pitfalls to be Aware of?
Just because anyone can create and host a Podcast as a DIY undertaking doesn’t mean that there are no Intellectual Property concerns and other issues to be wary of. For example, most Podcasts make use of a music background, even if only for a few seconds. But if the music your client chooses is copyright-protected—as opposed to royalty-free— then the risk of legal liability exists.
There is a great myth in the Podcast world that if a music segment of fewer than 10 seconds is played, then there is no exposure to legal liability. That notion is false, and any use of protected music content must be granted permission by the copyright holder. Similarly, there are those who believe that if credit or attribution is given to the artist, then the content falls under ‘fair use’. That, too, is false, and the only way to use copyrighted material legally is by way of licensure.
Choosing a Podcast Name
Podcast names may also be trademark protected, and therefore before using a name, it is necessary to research the proposed name to ensure that it is not already the property of another person or entity. A search of the federal government’s Trademark Electronic Search System (TESS) should be the first step for investigating name availability. Podcast hosting service ‘Simplecast’ recommends that podcasters should always file for trademark protection for their own Podcast’s name in order to avoid having the name usurped and infringed by anyone else. Although such registration will not guarantee non-infringement, it will provide a presumption of ownership as to who can use the trademark.
The Controversy Over Guest Releases
There is a difference of opinion among Podcast legal experts as to whether it is necessary to obtain a Guest Release from any guest/interviewee participating in a Podcast. On the one hand, there is the fact that there must have been de facto ‘consent’ by virtue of the guest agreeing to be interviewed in the first place. However, that does not necessarily mean that the guest was cognizant of just how widespread the broadcasting of the Podcast would be or what other use might be made of the content that the guest was not aware of or did not anticipate at the time of agreeing to appear. Furthermore, what if the guest was a famous personality who was under contract with an agent, studio, or sports team that restricted any such Podcast appearance?
For all of those reasons, it is advisable to obtain a release that not only states the consent to appear and have the guest’s comments broadcast but that also releases the podcaster from any future liability should a dispute arise over the subsequent use of the Podcast content or from any other legal liability exposure.
The Creative Commons Resource
Creative Commons is a nonprofit organization formed to help the podcaster navigate the potential legal minefield that exists in this form of broadcast media. The idea behind Creative Commons is to provide podcasters (and others using creative content on the internet) a free, standardized method of obtaining copyright permissions for the use of creative works while providing a mechanism for others to copy, distribute, and make use of your client’s creative content. For the Podcast community, Creative Commons can assist podcasters and their lawyers in overcoming various legal obstacles to the global sharing of knowledge and creativity.
The organization also works with major institutions and governments to adopt and promote open licensing (CC licenses) for the benefit of Podcast creators, hosts, and copyright and trademark holders.
Privacy Policy
Lastly, podcasters should bear in mind that for any website that collects personally identifiable data (PID), many states have laws mandating that the website have an accessible privacy policy. To make the matter more complex, Podcast audience members in states outside of your own who enter their PID are likely entitled to their state’s protections, and you must therefore determine in what jurisdictions your Podcast will offer subscriptions or otherwise make Podcast content available. If a Podcast audience includes visitors from the EU, GDPR privacy laws should be examined to determine what is required for compliance.
Despite the Podcast industry not being officially regulated, podcasters must nevertheless keep a watchful eye out to make sure they are in compliance with other applicable laws and avoid common law tort exposure that could cause significant legal problems.
Executive Summary
The Issue
What are the legal issues inherent in creating and hosting a Podcast?
The Gravamen
In particular, podcasters must take steps to guard against infringement through the use of protected music, trademarked names, and other protected Intellectual Property.
The Path Forward
By utilizing TESS searches for verifying name availability and the resources of Creative Commons, podcasters can avoid many of the legal pitfalls found in the Podcast industry.
Action
What’s In A (Trademarked) Name?:
Conduct comprehensive searches by way of Google, social media platforms, and, in the U.S., TESS, to determine name availability. Once you have chosen an available name for your Podcast, undertake to protect it yourself so that others do not have a legal right to make use of it.
Copyrighted Music:
If the music you want to use—even a short clip of it—is copyright protected, you must get permission from the copyright holder to use that music in your Podcast.
Guest Releases:
Various forms of Guest Releases are available, and the podcaster is strongly advised to have guests or interviewees sign such a release to avoid future problems.
Privacy Policy Liability:
If your Podcast will be collecting any PID, you must comply not only with the Privacy Policy laws of your own state but also those of states from where PID is being submitted by your audience. The same applies to compliance with the EU’s GDPR, which is strictly enforced.
Further Reading:
- https://www.trackclub.com/resources/music-licensing-for-podcasts/
- https://blog.simplecast.com/7-podcasting-laws
- https://www.coachesandcompany.com/avoid-podcast-legal-issues-with-these-5-essential-tips-for-podcasters/
- https://lawdit.co.uk/readingroom/podcasts-legal-issues
- https://wiki.creativecommons.org/wiki/Podcasting_Legal_Guide
