Podcasting

Top Five List: Protecting Your Podcast (and You)

By Scott J. Sholder

Although podcasts have been around in one form or another since the early aughts, their ubiquity and popularity has skyrocketed in recent years.  Apple, Spotify, Pandora, Google, and Stitcher, among other platforms, have changed the game when it comes to distribution, variety, and access.  Wildly popular programs like Serial, Pod Save America, My Favorite Murder, and The Daily have set the standard for content excellence across the news and mystery genres, while The Joe Rogan Experience, Comedy Bang! Bang!, WTF with Marc Maron, and Conan O’Brien Needs a Friend are leading the way in the comedy space.

If you want your dulcet tones to break into the digital airwaves and bring your audience information or entertainment and laughs (or maybe all three), you will of course need solid distribution and top-notch content.  But you also need legal protection both for you and for your content.  While podcasting may seem straightforward enough to not warrant the involvement of a lawyer, there’s more to it than you might think.  Here are five things to do to protect yourself and your content when entering the world of podcasting.

  1. Form a Company:  You may have already done this, but setting up a company, whether a corporation, partnership, or LLC, is a smart first step in becoming a content provider.  Apart from tax implications (which your accountant can explain to you), the corporate form creates a shield around you to protect your personal assets from certain forms of liability (for instance, breach of contract), limiting legal exposure to the assets of the company where it can be said that the company is the liable party.  The corporate form may not protect you from torts such as defamation and copyright infringement if you (intentionally or not) slip up in your individual capacity, but the company can still potentially absorb the exposure for torts it is deemed to have committed.  You may also want to use a corporation or LLC to hold your intellectual property (more on IP below) or “loan out” your services as talent, which can be helpful from a financial standpoint (again, talk to your accountant).  Setting up a company can be simple enough to be a DIY project but might become more complicated, requiring professional advice, depending on the arrangement you want and if you have multiple shareholders or members.  But it’s generally not that expensive and could save you headaches in the long run.  Once you’ve formed your company, make sure that you assign any existing contracts to the company (an attorney can help you with this as well), and that future contracts are in the name of the company – not your own name.

  2. Obtain Copyright and Trademark Protection:  To protect your original content, you should apply to register copyrights in that content.  While ideas and concepts are not copyrightable, the tangible expression of those ideas is, including scripts, sound recordings, skits or sketches, songs, and even, in some instances, individual jokes.  If the content is original to you (i.e., not simply copied from someone else) and is in a “fixed” medium of expression, you can apply to register your work with the U.S. Copyright Office.  The application process is more straightforward than the trademark process (discussed below) and the basic fees are reasonable; the bar to obtaining a registration is also pretty low in that “originality” for copyright purposes requires only minimal creativity, and it is far less likely that another copyright owner will challenge your application.  While it may seem onerous to register each episode of a podcast – especially if you release episodes more than once a week – there are ways to potentially streamline the process and keep costs down, and copyright counsel can be helpful in this regard.  Registering copyrights will also help you if your podcast one day moves into other media, such as television or a published book.

    Have a clever name for your podcast?  You should consider applying for a trademark registration.  If you offer goods or services (including entertainment services like podcasts) using a name, logo, or short phrase as a source indicator, you may be eligible for federal trademark protection through the U.S. Patent and Trademark Office.  Simply using the word, phrase, or logo “in commerce” is enough to give you some rights to enforce against infringers, but registration gives you more rights and enhanced damages if someone tries to rip off your mark.  It’s important to note, though, that there are filing fees and other expenses involved in applying to register a trademark (and in maintaining a trademark once it is registered), and during the application process other trademark owners have a chance to challenge your mark if they think it is too similar to theirs.  The application process is also more complex than applying to register a copyright and it is usually advisable to seek legal counsel to help ensure your mark is not “blocked” or otherwise rejected. 

  3. Obtain Necessary Licenses, Releases, and Permissions:  If you are using third-party content (playing audio clips or music, reading from a script or a book, etc.), you should make sure you have permission to do so from the owner of the copyright.  Despite popular misconceptions, there is no magic percentage that you can use without consequence (e.g., 8 measures of a song, 30 seconds of a comedy bit, 5% of a book) and the question of whether something is “fair use” is complex, gray, and extremely fact sensitive.  The best practice is to make sure you have a license (whether written or oral) to use content that is not exclusively yours or seek out content from royalty-free libraries or that can be used under Creative Commons licenses.  And when that content includes the voice or other identifying aspect of a third party, you’ll need to get that person’s permission as well, separate from the necessary copyright permissions.  A person’s voice is part of their “right of publicity” which is distinct from copyright and generally (with some exceptions) requires permission to use.

    If you have guests appear on your podcast, make sure they sign an appearance release that allows you to use their names and likenesses (e.g., voices) including for commercial, advertising, and promotional purposes and that releases you from liability for the ways in which guests’ names and likenesses are used.  While the best practice is to get written permission, you can also secure this consent verbally by having the guest read a brief script on air.  There are special considerations when dealing with minors that are beyond the scope of this article, and in such situations, it is best to consult a lawyer familiar with minor talent. 

  4. Vet Your Content and Read Your Contracts:  Related to number 3, if you are using third-party content (assuming you have permission), you should make sure that content doesn’t infringe anyone else’s rights.  Issues in the podcasting space, especially in comedy, usually arise in the context of defamation.  For example, if you source a clip of another comedian’s latest standup special and that comedian makes a defamatory statement about another identifiable person, you may be liable for re-publishing that defamatory statement.  The best practice is to review content before using it and consult a lawyer if you have concerns about any piece of content. 

    Also, if you sign any contracts, whether to acquire or license content, or for a third party to distribute or host your own content, read them before you sign them.  If you sign a contract you normally are bound even if you haven’t read it, so always understand what you are signing before you put pen to paper or fingers to keyboard.  When licensing third-party content, make sure you’re indemnified in case the person who provided you with the content didn’t have sufficient permission to do so, and when reviewing terms set out by hosting platforms, know who controls your RSS feed; typically, the host will control it for the period they host it, but unless your content is exclusive to one platform (for instance, Spotify), the platform should not own the stream or the content.  And note that in many jurisdictions, an email agreement is considered a binding contract – so be careful what you agree to via email.  Usually the best time to engage an attorney is when an offer is initially made to you – even if it takes the form of an email as opposed to a formal contract.  There are obviously more issues that may arise than just these, so don’t sign away your rights unknowingly!

  5. Get Errors and Omissions Insurance:  Many insurance companies offer E&O insurance for media and entertainment companies (such as AXIS Capital, AXA XL, QBE, and OneBeacon) and getting coverage is a smart idea particularly given how much litigation arises out of media and entertainment properties.  Media insurance policies often cover copyright and trademark claims, contract claims, defamation claims, and other risks that commonly arise in the media and entertainment space.  While this may seem like an unnecessary cost, especially for an individual or small business, those who make their living in media and entertainment should seriously consider it – and as the podcast business becomes more mature and sophisticated, insurance is increasingly being required in connection with certain forms of distribution.

The Entertainment Industry in 2020: Four Legal and Business Issues For Consideration

By Simon Pulman and Briana Hill

1. AB5 Brings Uncertainty: The new California Assembly Bill 5 (AB5) became effective on January 1, 2020. Originally created to codify the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex), and to address the increase of misclassification of workers as independent contractors, the drafting of AB5 is so broad that it greatly expands the definition of “employee” in a way that potentially reclassifies most independent contractors as employees. This has huge potential repercussions for many companies doing business in California, including those in the entertainment industry (which has traditionally been extremely reliant on independent contractors), as companies may now need to provide full employment benefits to individuals previously characterized as independent contractors.

While there are certain statutory exemptions, the exemptions do not cover traditional entertainment job categories.  There is currently very little guidance as to how the law will be interpreted and enforced, and how it will interact with guild rules. It is incumbent on all studios, producers, networks, and other entertainment companies to watch developments closely, and to consult with knowledgeable counsel when in doubt.

2. Continued Evolution in Streaming: The rise of streaming platforms has dominated the film and episodic programming business over the past few years. 2020 is poised to bring the most significant year of change yet, as new platforms such as HBO Max, Quibi and Peacock will join the recently launched Apple TV+ and Disney+, and incumbents such as Netflix, Hulu, and Amazon. Each of these platforms is targeting a slightly different position in the marketplace, and the economics for content producers vary on a platform-by-platform basis based on the rights and territories that each discrete platform is presently seeking to acquire.

From a deal-making perspective, it is possible that the increased competition will put pressure on platforms to offer greater transparency into the performance of their content and potentially more meaningful participation for creators in the upside of successful series and movies. Additionally, it will be interesting to see if Netflix blinks with respect to its (to date) steadfast insistence on dropping all series on an all-at-once “binge” model, given the plaudits and positive buzz that Disney+ has received for releasing episodes of The Mandolorian on a weekly basis. Finally, Quibi is a truly interesting new entrant that is planning some fascinating creative experiments with short form and interactive content, in addition to providing producers with a business model that is arguably more favorable than some of its competitors.

3. Exclusivity Reigns in Podcasting: 2019 was a year of huge growth and continued maturation for the podcast industry. Mainstream coverage of the industry expanded significantly, many major celebrity names launched podcasts for the first time, and a number of big media conglomerates entered the space or materially increased investments in their podcast divisions. The maturing of the podcast industry has had notable effects on the business side of this burgeoning medium. Participants at all levels in the value chain have started to stake a claim to ownership of, or participation in, podcast rights and revenues. Moreover, the deal-making has become much more sophisticated. Prior to 2019, the dominant podcast distribution model was very simple – make your podcast available on as many ad-supported platforms as possible, and split revenues between stakeholders (usually the creator and the production company or network) (often in a straight 50/50 configuration). This began to change during 2019 as certain companies grew and engaged more experienced representation, and entrants such as Spotify and Luminary started to lock down exclusive rights to content.

Expect the podcast content arms race to heat up in 2020, as high-profile shows and creators commit exclusively to platforms in exchange for sizeable minimum guarantees. However, platforms that offer podcasts in combination with music (such as Spotify, Apple, iHeart, and Pandora) would appear to be best positioned in the market versus pureplay podcast subscription outlets because of their existing subscriber bases and the value proposition of bundling music with podcast (and, indeed, expect 2020 to be the year of the “music podcast”).

4. Gaming Grows: As Netflix Chairman and CEO Reed Hastings famously opined, Netflix is primarily competing with Fortnite rather than with other SVOD platforms. Expect 2020 to be a huge year for gaming, with the release of several big titles (such as Cyberpunk 2077 and The Last of Us 2) being followed by the impending launch of much-anticipated new consoles Playstation 5 and Xbox Series X in the fall.

The continued growth of gaming will fuel a corresponding growth in esports and “game-adjacent content culture” – the creation, consumption and interactive fan participation in content around the culture of videogames, via platforms such as Twitch, Mixer, YouTube and Instagram. All of the next-generation gaming platforms will include built in recording and streaming capabilities allowing gamers to easily create media and engage with other users. While this arguably implicates copyright issues for rightsholders, many of the game companies have taken a permissive stance regarding streaming (and other activities, such as creating derivative works), believing it to be helpful to their business – although distributors must also be cognizant of other issues such as right of publicity.

Additionally, as discussed in a previous blog, expect a flurry of announcements during 2020 and beyond with respect to entertainment extensions of videogame properties – most notably film and TV adaptations, but also podcasts and graphic novels. A significant portion of these will probably involve the original game developers and/or publishers in a meaningful way, as rightsholders understand the importance of maintaining a strong and consistent brand across platforms.

Other sectors of the entertainment business should ignore gaming at their peril. For more, we recommend reading “7 Reasons Why Video Gaming Will Take Over” by Matthew Ball.

Making Money and Protecting Yourself in Podcasting: Three Considerations for Unscripted Podcasts

The market for unscripted podcasts –from true crime, to sex and relationships, to sports and pop culture – is exploding. With top podcasts bringing in five figures in revenue per episode and opening the door to multiple ancillary opportunities including merchandise and live touring, what do podcast producers need to know to protect themselves and their commercial opportunities? Here are three quick recommendations:

  1. Secure Releases: It is best practice to obtain signed release agreements from everyone who appears on your podcast prior to them appearing or making a creative contribution. Whereas in the past it might have been possible for part-time podcasters to take a looser approach to securing signed paperwork, the podcast business is now becoming more sophisticated, and buyers are becoming more rigorous and demanding. Distributors, advertisers and financiers will begin requiring standard releases in the same way that Netflix or HBO requires releases when acquiring a documentary film. Releases will also be required in order for you to obtain errors and omissions insurance, which will help insulate you from legal liability in the event that a claim is filed against your podcast. And even if a third party does not require releases, obtaining releases upfront will help mitigate your legal risk. Make sure that you obtain a release from your attorney that is appropriate for the kind of podcast that you are making.
  2. Consider Vetting: Unscripted podcasters should consider working with an experienced first amendment attorney to help vet their podcasts and anticipate legal issues. This is particularly true if you are making statements and allegations concerning individuals who are not public figures (e.g., they are not celebrities or politicians). The potential risk is especially acute for podcasters operating in the true crime space, where stories often unravel in real time and there is a strong possibility of receiving incomplete or inaccurate information and thus making false or defamatory statements concerning a member of the public. An attorney will help review your scripts and ensure that you present information in a manner that is less likely to get you sued. Podcasters in the true crime space should also discuss with their attorney what to do in the possibility that their research and materials become subpoenaed as part of an active police case – in which event, the podcaster could be required to turn over materials and even act as a witness in court.
  3. Think Derivatives: Much of the money in podcasting at the moment arises from derivative rights – the ability to take the podcast into other avenues such as publishing, live touring, live stage, interactive, and especially film and television. Like their scripted brethren, unscripted podcasts are frequently being acquired by tv and film studios and producers – both to be transposed directly as documentaries and other unscripted formats, and for adaptation as scripted productions. Accordingly, it is important that podcasters are prepared in order to maximize their upside in the possibility of a sale. That means – at minimum – securing signed agreements with all contributors and collaborators. You may also want to consider securing life rights and/or exclusivity from your primary subjects. While this can slow down negotiations at the start of the podcast process, it does also ensure that you have maximum leverage when entering into negotiations with film and TV producers (whilst mitigating the risk of being circumvented by a competing project concerning the same subject matter – which is very possible when the subject matter relates to matters of public record, such as a historical event or crime). Your representatives will be able to discuss what is appropriate in order to protect you and your career in the event that your podcast takes off.

Learn more about CDAS LLP Podcasting here.