Join Nancy and other legal and advertising experts as they put advertising under a microscope, taking an in-depth view of the deals, the laws, the risks and the trends in today’s “ad biz.” Register here for the March 23rd event at the Cardozo School of Law.
Briana Hill, Co-Head of the Beverly Hills office of Cowan DeBaets Abrahams & Sheppard LLP, joins Fred Bimbler and Simon Pulman in leading the firm’s Entertainment group, which includes televison (traditional to broadband), streaming, film, new media, talent, theatre and podcasting. The group assists clients with their entertainment projects through early development, the solicitation of investment, production and ultimate distribution, securing all necessary rights and negotiating agreements with top-tier talent.
Ben Jaffe joins Joshua Sessler in leading the Digital Media & Technology group that represents top digital talent, including game developers and distributors, digital agencies, production houses, broadband video networks, mobile app developers, podcasters and social media ventures. The group provides counsel to a wide range of social media, transmedia and mobile plays that are using emerging software and hardware technologies to create, develop and distribute content in new ways.
Imagine you’re sitting on the next big true crime hit. The nonfiction genre has ballooned in recent years across media, particularly in the podcasting space where production costs are relatively low and there are fewer gatekeepers to content distribution. Long gone are the days when the choice was among America’s Most Wanted, 20/20, Cold Case Files, and Unsolved Mysteries. The first seasons of the true crime podcast Criminal and the investigative journalism podcast Serial were released in 2014. Netflix’s first season of Making a Murderer came out in late 2015. The immediate popularity of these series was evident in their ratings, and they have been followed by rapid exponential growth in the true crime and investigative journalism entertainment space.
While true crime is often equal parts edge-of-your-seat entertainment and hard-hitting journalism, it’s important to remember that part of your job as a journalist is to stay within the bounds of the law and maintain a high level of ethical standards. Here are some tips for how to do so.
(1) Observe best journalistic practices in conducting research and
One of the easiest ways to stay on the right side of the law – most critically, to enjoy the full protection of your First Amendment right to speak freely – is to follow universal standards of ethics in journalism. If you don’t work for a large media organization that promulgates its own code of ethics, don’t worry. The Society of Professional Journalists publishes their Code of Ethics online, and several news organizations such as The New York Times also make their internal ethical guidelines available to the public.
In keeping with the high standards of journalistic ethics, here are some key suggestions (but by no means an exhaustive list) for investigating and reporting on your true crime story:
- Be careful about making promises to, or developing personal relationships with, sources. Whether a source is asking to be off the record or for anonymity, or has an expectation or implies an expectation of a quid pro quo exchange such as a favorable portrayal, making promises to sources can quickly become tricky when later reporting your story. Personal relationships do develop over the course of cultivating a source, and whether by mere appearance or in fact, these dynamics can undermine your authority on a subject and imply a bias, depending on the circumstances. In every situation, maintaining professionalism will be key.
- Don’t get involved in any formal investigation. Remember – you’re a journalist, not a member of the police force, the prosecution team, or any other public agency. Don’t offer rewards for information or make assurances to victims or families, or the public, that you will get to the bottom of it.
- There is always more than one side to a story. If you expect to make accusations against any individual or company in the final story, ask them for comment. Protect your neutrality by always giving the “other side” the opportunity to counter any allegations or defend their actions.
- Know your rights (and the legal limitations) when it comes to newsgathering. This includes access to private property, whether you can record conversations without every participant’s permission, when to disclose who you are and what you’re doing and engaging or citing anonymous sources (especially government employees), and more. These rules may vary by jurisdiction, and things can get even trickier when dealing with digital media or communications that cross state lines.
(2) Vet your material from development stage through production.
When talking about real people and actual events, especially when criminal activity is alleged, you should be wary of crossing the line in certain areas of law, such as defamation and the right to privacy, and in some instances copyright law and the right of publicity. Fact checking and legal vetting should be part of your process.
A defamation claim could arise if you make a false statement of fact about another person that injures their reputation, and you did so either negligently or with what’s known as “actual malice.” If the plaintiff is a private individual, you would only have to be negligent in making that statement, whereas if the plaintiff is a public figure you would be at fault if you made the false statement with “actual malice,” that is, knowingly or with reckless disregard for the truth.
A false light claim could also arise (depending on the jurisdiction) if you widely make a statement that portrays a person in a “false light” that would be highly offensive to a reasonable person. The statement need not necessarily be a false statement of fact, but rather, create an implication, or inference, that is not true. In some ways this type of claim is similar to defamation, and they sometimes overlap, but it technically falls within the realm of privacy law. Note that reputational damage does not generally have to be proved under a false light claim – the harm caused here is emotional distress.
You could also face a claim for the publication of private facts, which is another type of privacy violation, if you publicly disclose a private fact about an individual that is offensive to a reasonable person, and the fact is not one of legitimate public concern. Unlike defamation and false light, there’s no requirement that the disclosure of information be false either in fact or in implication; rather, this sort of claim tends to arise when private information is made public that embarrasses the individual who is the subject of the statement.
In addition, a right of publicity or misappropriation claim may arise if you use a person’s name, or identifiable features such as their likeness or voice, for commercial or other exploitative purpose. In most states, the ability to use a person’s name or likeness in expressive works such as films, books, and podcasts are protected by the First Amendment, and liability will not arise if the person’s name or likeness is also used in advertising for that expressive work provided it is truthful and therefore “incidental” to the protected expression. That said, the scope of right of publicity and misappropriation laws vary from state to state; for example, some states grant postmortem rights of publicity while others do not.
Finally, a copyright infringement claim could arise in a true crime story if you’re using third-party copyrighted materials without permission. You may need to consult an attorney for a fair use review of your podcast, in particular if the subject of your true crime story is or was an artist such as an author or musician, and you want to use their work in your story.
It’s a good idea to consult a lawyer early in the process when dealing with the type of risky subject matter typical of true crime stories, so you can avoid potentially costly or time-consuming changes later on in production. For starters, remember:
- Just because you’re covering a high-profile case receiving attention across the media, and another media company (or five or ten) said something, it doesn’t mean it’s true. You generally won’t be protected from liability for defamation merely because you’re re-releasing information or materials first published by another source.
- So too can copyright infringement liability arise from republication. Another project’s use of third-party material does not necessarily mean you’re free to use it, too.
- If you’re digging back into a cold case, tread carefully when raising new facts and allegations, even against people implicated but never charged or convicted when the trail was still hot.
Be especially careful with secondary and tertiary figures in the story – in many cases, these minor figures are the ones who complain if they are portrayed in a negative light.
(3) Be creative (but not irresponsible!) with your advertising and promotional strategies.
It’s common for ads promoting a podcast to include snippets of statements and materials from one or more episodes in the series. In the promotional context, however, editing for duration and the addition of music or other sounds and materials can change the meaning or implication of a statement. In this way, you should be careful when promoting high-risk material and you may want to consult a lawyer to separately vet all marketing and advertising.
Similarly, additional copyright issues could arise if you’re using third-party copyrighted materials in the podcast and you want to use some of those materials in advertising. Do not assume the use in an ad is likely to qualify as fair use just because the use in the episode itself may be. The same considerations in the context of the content of the podcast do not necessarily apply to advertising for the series.
Finally, be careful what you agree to when entering sponsorship or other advertising deals. If a sponsor is asking for the right to use material from your story – including the names of individuals or snippets from episodes – to cross-promote their status as an official sponsor, be careful not to grant rights to use a person’s name and likeness that you do not have. A right of publicity claim could arise if you do.
So be creative with promoting your hard-hitting story, but not so much so that you’re violating the law.
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.
- 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.
- 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.
- 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.
- 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!
- 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.
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.
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:
- 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.
- 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.
- 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.