Podcasters, this episode is for you! Whether you’re a professional podcaster or a hobbyist, there are three key areas that you need to be aware of in order to ensure that your podcast is legally protected.
In this episode, we’ll cover:
- Trademarks: the steps you need to take to avoid infringement and protect your podcast name (for more about trademarks, check out my trademark episode here!)
- Copyrights: Why you should never rely on fair use
- How to correctly license music and photography
- Contracts: the three podcast contracts you need
(Rerun of Episode 21)
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The 5-Day Legalpreneur Challenge is back! It is going to cover everything you need to know as a small business owner; this won’t be just a surface level discussion like you get in this podcast, instead we are diving deep into all the knowledge you need to run your business. Remember to use code PODCAST for a special discount!
The Legalpreneur Podcast is advertising/marketing material. It is not legal advice. Please consult with your attorney on these topics. Copyright Legalpreneur Inc 2022
Episode 199: How to Legally Protect Your Podcast Transcript
Andrea: [00:00:03] Welcome to the Legalpreneur podcast. I’m your host, Andrea Sager, founder and CEO of Legalpreneur, Inc. As a serial entrepreneur and someone that works exclusively with small business owners legally protecting their business, I’m dedicated to covering common legal issues faced by business owners, providing you with the business knowledge you need to catapult your businesses growth and showing you just how some of the world’s most elite entrepreneurs have handled these legal and business issues themselves in true attorney fashion. The information in this episode is not legal advice. This is for informational purposes only, and you should always consult with your attorney before implementing any of the information in the show.
Andrea: [00:00:46] Hey. Hey there. Welcome back to another episode. Listen up. If you are a podcaster or if you are thinking about starting a podcast, this episode is for you because it’s all about the legal protections podcasters need. And trust me, there are quite a few of them, even if you think you’re a hobby podcaster. So pay attention. Even if you don’t have a podcast or you’re thinking about one, just trust me. You’ll want to hear this, so don’t forget to text me. I want to hear directly from you in a text message. So shoot me a text text the word podcast to 8322253164. In case you missed it. Our flash sale for Dream Bigger is now over. That crazy good deal that you’ll never see again. It’s gone.
Andrea: [00:01:33] However. Tickets are actually now 50% off. General VIP. Whatever you want. 50% off. Get them now because this event is going to sell out. I don’t know when, however, it will sell out.
Andrea: [00:01:49] We are so excited for this.
Andrea: [00:01:51] We have Allie Webb, Danielle Canty, Pollyanna Reid.
Andrea: [00:01:55] We have Chris Harder, Lorie Harder.
Andrea: [00:01:57] So many more big names that are going to be announced soon. So stay tuned. But for now, go get your ticket 50% off and get those rooms booked as well. I cannot wait to see you in Phoenix, October 5th through the 7th. Okay. So let’s just get to it. Podcasters, whether you know you’re in this to make money, whether you know this is for a marketing tool for your business, you want sponsorships, it’s just a hobby. Whatever it is, you still have to make sure that your podcast is legally protected. You still have to make sure that you’re not getting in trouble with the law because of your podcast. There are really three areas that podcasters have to be aware of when it comes to legal protection. Number one is a trademark for their podcast name at the very least, and copyrights always going to worry about copyrights and contracts. And there are several contracts that you have to be concerned with. So, number one, trademarks, the name of your podcast, you need to make sure that you are not infringing on somebody else’s trademark. Now, it doesn’t matter if they’re not registered with the USPTO, which is the United States Patent and Trademark Office. If there is another podcast out there with the same name or a similar name, that is still trademark infringement. It may not be infringing on their federal registration, but they probably still have common law rights. So you have to still make sure that you’re not infringing on their common law rights. If they do have a federal registration, you definitely need to make sure that you are not using the same name or a similar name. And again, as a reminder, trademark infringement is not just when it’s the same exact name, it’s when it’s anything similar enough to cause consumer confusion.
Andrea: [00:03:51] So if a listener goes and types in ABC to listen to the podcast and you named yours ABC, while there’s another podcast out there with the name ABC and the listener listens to yours instead of the other party, well, guess what? That is 100% trademark infringement, and they can sue you because you’re costing them listenership. And in the world of podcast sponsorships, everything is dependent on how many listeners they have with each episode. So if you’re taking away from somebody else’s listenership due to the similarity in the name. That is trademark infringement. So what do you do? Well, first of all, catch the low hanging fruit. You need to do a search yourself, search iTunes, search Spotify, whatever podcast platform you use, search with the name that you want to use and see what pops up. If something with the same name comes up, you don’t want to use that. If it is something similar, you may not want to use it. And I know I’ll get the question. What if you know there is a podcaster four years ago and they haven’t posted they posted one episode and that’s it. Well, then they probably abandoned the name and you probably safe to use it, but you may want to talk to an attorney first. Now, if you search yourself and you don’t catch the low hanging fruit, you still want to do a trademark search.
Andrea: [00:05:10] And that’s the official trademark search done through a trademark attorney such as myself or whoever you use. And you want to do that to make sure that you are certainly not infringing on somebody else. So you know how to catch low hanging fruit. You know how to search for the exact same name, but you don’t know how to search for similar names and you don’t know what is potentially infringement. So that’s why you have to do the trademark search to make sure that you basically get an opinion letter from an attorney that says, Oh, yeah, you’re good to go. This is not trademark infringement. Once you have the search done, then if you choose, you can file the application to hopefully get a federal trademark registration. And what’s the benefit of the registration is if there is a new podcast that is infringing on your name. If you have that registration already, all you have to do is petition iTunes, petition wherever that podcast is hosted, iTunes, Spotify, iHeart, wherever you listen. And those platforms will remove the podcast because it’s federal trademark infringement. But in order for them to work with you and remove it, you have to do the work up front and get that federal registration. So that’s the benefit of getting it up front is because you don’t have to wait. The application process takes 6 to 7 months at least. So if you find somebody infringing and you don’t have the registration and you just start your application, well guess what? They can still build their audience for 6 to 7 months until you get that registration.
Andrea: [00:06:46] So that’s trademarks. Do the work now. Don’t wait until you get a cease and desist letter and you’re forced to change your name. Do the work now. Now copyrights. This is everybody’s favorite when it comes to podcasts because music, everybody is like, Oh, if I use it for 3 seconds, it’s like fair use, right? If it’s this long, it’s fair use. Or if I do this, it’s very used, right? No, I never, ever tell anybody to rely on fair use only because it’s very nuanced. So there’s very specific things that make something fall under fair use. And if you are not in that very specific bubble, well, then you can be sued for copyright infringement. And what you have to realize about fair use is it only applies in the United States. Every country has different laws or they may have no laws for fair use. So if you think the copyright owners in the US but really they’re in another country that doesn’t have fair use laws and you try to rely on fair use, guess what? You’re screwed because you can be sued for copyright infringement because there’s no fair use to rely on. So rule number one, when it comes to copyrights, never rely on fair use. All of the little things that can fall under fair use.
Andrea: [00:08:05] The amount of time here I’m referring specifically to music. So typically it’s like, Hey, can I use 10 seconds of this song? And it’s fair use when it comes to music, it doesn’t matter how much is played. If you play one second or a half a second, that is copyright infringement. There is no fair use that falls under the amount of time. So just remember, you have to use properly licensed music in your podcast or else it will get shut down. So for music, definitely use something that is reliable for my intro music and outro music. I think I paid like 30 bucks for something on like Audio Jungle or something like that. There’s plenty of free license music or very reasonably priced licensed music, so make sure you’re using something that is properly licensed. That way you don’t get shut down. And I’ll leave some links in the show notes as well for reputable licensed music. Now, another big copyright issue for podcasts are photos. And this is one that a lot of people don’t realize as well, is you have to have a properly licensed photo, whether it’s for your cover art or if you put photos in your show notes or whatever, you have to make sure that it’s your photo. So either you own the copyright to it or you have a proper license to use that photo. So I represent a pretty large podcast platform.
Andrea: [00:09:35] I’m not going to name them, but let’s just say that quite often they get takedown notices from many, many copyright holders because of podcasters that are using unlicensed photos. So whether you go to Google or if you go to if you’re using something from Creative Commons and you’ve heard my spiel about Creative Commons, make sure you are abiding by all of the rules and all of the little terms in the copyright license. Even if it’s a free one you stop to, maybe you have to give credit or you can only use it for this or that. Make sure you’re paying attention to that fine print. So if you’re not using a properly licensed photo, the copyright holder will come after you and they will petition the online platforms. Whoever is hosting your podcast, your website, whatever, they will petition them to take down the content. And if you have so many takedowns, they will remove your website, they will remove your podcast all together. So you definitely don’t want that to happen. So make sure that you’re using properly licensed photos. Okay. Now, contracts. Oh, man, this is a hot topic. I have seen so many horror stories when it comes to contracts for podcasters. Really, there’s three contracts that podcasters should be using across the board. I’ve heard podcasters that have had a podcast from day one say they’ve never used it. Well, guess what? Things are evolving and you never know what’s going to happen.
Andrea: [00:11:09] So, number one, a guest consent. And this doesn’t have to be a ten page contract. Trust me, if you have guests that are coming on your podcast and you give them a ten page contract, they’re not going to sign that. If I go on a podcast and they have too many rules for me or too much this or that, I’m just like, No, not worth my time. There’s a fine line between having them agree to terms and then having a full blown ten page contract. Definitely don’t want the latter. So what do you want? Well, if you have a scheduler, so whether you use calendar or a scheduling schedule, once whatever you use, there is a place for you to put a description, put terms, whatever it is. If you put your terms in the description and they schedule a time, well guess what? They are bound by those terms. You don’t have to have them actually sign something. You can put look, by scheduling a time here, you agree to these terms and that’s all you need. But you want to make sure that you have their consent. That says it’s going to vary for every podcast host, but typically you want them to agree that you can use their content for marketing purposes, for your podcast, for your business, anything that you want to use their content for. You need to make sure you have their permission to do that. Yes, it is typically understood that’s what will happen.
Andrea: [00:12:27] But you don’t want them to come back later and say, no, I didn’t give permission for them to use my voice to advertise this one event or something. But if you’re using it in the context of the podcast, then yeah, if you have their consent, you can do that. Obviously you don’t want to take it out of context and piece together words to make it sound like they said something they didn’t really say no, that’ll get you in trouble. But you want to make sure that you have their explicit permission to use their interview for whatever you want. Now, that’s that’s just a couple of things. And the guest consent, there’s definitely more that you can have in there. Now, if you have a co host, you definitely 100% need a co host agreement. I have seen too many horror stories when it comes to co hosts and podcasters because, hey, we’re best friends. Let’s start a podcast together. Okay, cool. What happens when one gets mad about this thing and wants to take the podcast on its own and split off and the two go their own way? Well, who owns the content to the podcast you guys did together? Well, I don’t know if there’s no agreement that nobody knows. So many things have to be hashed out in this co host agreement. If you do not have a co host agreement, you need to get one a sap because inevitably there will be issues.
Andrea: [00:13:44] And if you don’t have a resolution on paper, then it will get very muddy very, very quickly. Okay. The other agreement that you need, if you are a podcaster, is if you have a producer now talking about horror stories, this poor girl, she had a killer podcast, very popular podcast, and she didn’t have an agreement with her producer. Well, guess what? She got into an argument with her producer and they decide to cut ties. But because there was no agreement in place, the producer tried to say that he owned her podcast so she couldn’t take it and go start with a new producer. Elsewhere, he was saying that he owned the content. If you want to avoid that whole headache. Now, who rightfully owned it? I mean, she did. But guess what? If you have to take it to court, that’s going to cost several thousand, not just several thousand dollars. It could cost ten, 20 up to 50,000 and upwards of 50,000. So you do not want to go down that rabbit hole, trust me. Spend a few hundred dollars now to have a contract drawn up for each of these instances. And you will avoid tens of thousands of dollars in legal fees later on. And that’s what all of this ultimately comes down to. And this is my whole goal is to get you to realize, look, yes, it costs money to be proactive with legal stuff, but if you’re proactive now, you’re going to save tens of thousands of dollars down the road.
Andrea: [00:15:14] So as soon as you can, you need to address each of these things for your podcast. Whether you have launched your podcast or not, you need to address these a set. So just to recap trademarks, do a trademark search, make sure you’re not infringing on anybody, and get the federal registration as soon as you’re able. Copyrights never rely on fair use. It doesn’t matter if you use one second or the whole song. It’s all copyright infringement unless you have a proper license. Same goes with photos. Make sure you’re using your own photos or properly licensed photos and contracts. Guess consent doesn’t have to be a huge ten pager. You may just want to do a quick terms in the place where you have them scheduled there. Interview with you. And don’t forget your co host agreement. If you have a co host and an agreement with your producer, basically it just says, hey, you’re just producing this. I own the content. There are several other things that you need as a podcaster, but these are really the big things that you need to get started again. If you need help, feel free to reach out. You can send me an email. Andrea at Andrea Sager. Or of course you can text me. Sign up for updates and all the fun stuff. All right. Well, that’s it. I’m out. I will see you guys next time.
Andrea: [00:16:32] Here at Legalpreneur, we’re committed to providing a supportive legal community for all business owners. I know how scary the legal stuff can be. If you found this information helpful, I would be so grateful if you could share it with the fellow business owner. And quite frankly, it doesn’t cost anything to rate, review or subscribe to the show. Your support helps me reach more listeners, which allows me to support more business owners in their entrepreneurial journey. Have any questions or comments about the show? Feel free to drop me a line on Instagram, I promise. I read all of the messages and comments and if you want to be a guest on the show or know someone that would make a great guest, simply fill out our application form and a team member will reach out if we think it’s a good fit. I’ll see you in the next episode.