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.
The videogame industry is now the most profitable individual
sector of entertainment, having experienced exponential growth over the past
forty years. Great games can quickly generate a large and unusually engaged
fanbase, and as a result it could be argued that games will be the single
biggest source of major entertainment brands for the foreseeable future. A
cursory glance at Twitch reveals tens or hundreds of thousands of viewers
concurrently watching streamers playing games like Fortnite, The Witcher, Sekiro, Overwatch and Grand Theft
Auto. Even indie titles like Hollow
Knight, Stardew Valley and Untitled
Goose Game can attract thousands of attentive viewers. The potential to
grow videogame properties into multi-platform entertainment franchises is
greater than ever.
Historically, television and film adaptations of videogames
have been critical and commercial misfires. However, the general growth of
gaming, the increased sophistication of storytelling in videogames, and the
general demand for IP-based content (driven in part by the emergence of
multiple new streaming platforms) has created a perfect storm. Accordingly, we
are currently seeing more videogame adaptation deals than ever before, some of
which are very complicated and extremely high level.
While the fundamental structure of acquisition or licensing
deals for videogame properties is similar to that used when acquiring older
forms of media such as books and articles, there are some specific
considerations when dealing with videogame properties, some of which are listed
below. It is strongly recommended that parties on both sides of the negotiation
engage an attorney and/or agent who is familiar with both the film or TV (as
applicable) and videogame businesses to negotiate the deal. It will be very
difficult to close a deal without an understanding of the gaming world and what
motivates its rightsholders.
- What is the “Property”? : Up until recently, it was relatively easy to define what a “game” was. Games came on disc, cassette, cartridge or CD sold as physical products through brick and mortar retailers for a one-time payment. Successful games yielded sequels and spinoffs (and sometimes “add ons”), but games were generally released in a fixed form. With the emergence of digital distribution and the concept of “games as a service,” that has gone out of the window. Games are now routinely and regularly patched, updated, supplemented and expanded via a combination of free and paid downloadable content (or “DLC”). For example, the game No Man’s Sky has been updated and expanded so comprehensively since its launch in 2016 that it is almost unrecognizable as an experience from the version released at launch. As a result, it is imperative that buyers understand what they are acquiring – and unless negotiated otherwise for a very specific reason, the “Property” that is granted to the buyer should include all elements, versions, expansions and content relating to a title, for as long as such title is supported. Ideally, all sequels and spinoff games would be included in the rights grant as well (but that is a more nuanced subject that may require some discussion).
- Investigate Third Party Interests: While other forms of properties (including novels and podcasts) can have complicated chain-of-title issues, videogames are particularly likely to have unforeseen ownership and/or approval issues complicating the acquisition process. Often the rights in the game may be owned and controlled by a publisher, but sometimes the actual creator or developer may have approval rights or other interests that need to be addressed. Things get even more complicated when dealing with Japanese properties, where there may be one or more intermediaries to deal with before one is able to negotiate directly with the rightsholder. It is important to ask the right questions at the very start of negotiations to be able to identify and address any specific issues.
- Discuss Controls and Approvals: While television and (particularly) film producers often view their medium as the pinnacle of artforms, it is important for producers to understand that – in many circumstances – a videogame publisher or developer does not need them. Many videogame rightsholders make millions or billions of dollars solely from videogame sales, which can then be supplemented through the sale of DLC and merchandise. Even independent developers may be able to make a good living through a combination of the right business model and smart engagement with their fanbase. As a result, rightsholders will often be extremely cautious about entering into any kind of arrangement that could tarnish or dilute their brands. No sophisticated rightsholder today would agree to the kind of agreement that yielded the likes of Super Mario Bros. (1993), Street Fighter (1994), BloodRayne (2006) or Tekken (2009), all of which were critically lambasted and bore little relation to their source material.
Indeed, many videogame rightsholders are
unlikely to be prepared to enter into a traditional option purchase type
arrangement where they are viewed as passive rightsholders without any kind of
active involvement or approval. Producers therefore need to think carefully and
walk a tightrope to ensure that they make the rightsholder feel invested and
comfortable, without ceding control in a manner that could jeopardize their
ability to set up and produce the project. Of course, if they can strike the
right balance then the dividends – both creative and financial – could be
Those familiar with copyright law recognize the well-established principle that facts are not eligible for copyright protection. A compilation of facts may be eligible, however, if the selection or arrangement of facts reflects the requisite originality and creativity to warrant copyright protection. In Feist Publications v. Rural Telephone Service Co., the U.S. Supreme Court considered whether a compilation of facts in the form of a directory of customer names, addresses, and telephone numbers is eligible for copyright protection; the Court ultimately determined that the directory at issue, which merely listed all of Rural’s telephone subscribers in alphabetical order, lacked sufficient originality and creativity to be copyrightable. In a recent case, however, the U.S Court of Appeals for the Ninth Circuit determined that a similar list of customers could be – and indeed was – eligible for at least some level of copyright protection.
Experian Information Solutions, Inc. v. Nationwide Marketing Services Inc. focused on what plaintiff Experian – an information services company best known for credit scores and reports – terms its “ConsumerView Database,” or “CVD.” The CVD contains more than 250 million records, each pertaining to an individual consumer, and includes hundreds of data fields, including age, income, and purchase habits. Experian licenses portions of the CVD to various marketing companies for use in connection with marketing campaigns. Continue reading
By Bill Donahue
Law360 (March 26, 2018, 3:35 PM EDT) — A New York federal judge on Friday tossed out a copyright lawsuit filed against news website Mic over an image of protesters at a pro-Trump rally, calling the site’s use of a still-frame from a video “trivial.”
Access the full article here.
Lord & Taylor has agreed to settle a Federal Trade Commission complaint alleging that the national retailer deceived consumers by paying for native advertisements.
In a complaint filed in the U.S. District Court for the Southern District of New York this month, a group of tattoo artists (through a licensing entity) sued the developer, publisher, and marketer of the immensely popular NBA 2K16 video game over digital depictions of tattoos the artists had inked on the real-life basketball players appearing in the game, including LeBron James and Kobe Bryant. Claiming violation of their exclusive right of public display under 17 U.S.C. § 106(5), the artist collective in Solid Oak Sketches, LLC v. Visual Concepts, LLC seeks monetary damages, costs and fees, and injunctive relief against production of the game and any further “public displays” of the tattoos. While it may seem outlandish at first blush, cases like Solid Oak Sketches are becoming more common.
Following today’s earlier announcement that Former General Counsel of A&E, Doug Jacobs, was joining the firm as a Partner, Mr. Jacobs had an opportunity to speak with Jon Lafayette, Business Editor at Broadcasting & Cable, about the transition. Mr. Jacobs touched upon the current state of the Television Business, as well as the future of the business as it relates to new technology and developments.
You can find the full article here.
Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) is proud to announce that Doug Jacobs, recently Executive Vice President and Senior Counsel of A&E Television Networks, has joined the firm as a partner in its New York office. Mr. Jacobs’ practice will primarily focus on matters involving the cable television industry and the evolving digital media universe, building on his almost 20 years as general counsel at several major cable networks.
Tomorrow, CDAS attorney Eleanor M. Lackman will discuss the Aereo case on the NPR show “On Point” between 10am and 11am EST. Live questions from callers will be possible in markets where the show runs live, which can be streamed here, and the show will be available via the NPR website and app.