Laws you should know about before you start podcasting
Apr 06 2017
Are you thinking of producing a podcast? 57-million Americans listen to podcasts every month (that’s 23% more than last year!), and although the lion’s share of that is driven by major TV networks (such as ESPN) and traditional radio outlets, you don’t have to be big to get on the bandwagon. Technically it’s easier than ever go from wannabe to podcaster in a couple of hours.
But hold up for a few hours more. You’ll be competing with heavy players, and the average podcast listener follows only five shows a week, so it’s helpful to adopt “best practices.” One of those practices is an understanding of podcasting-related legal issues. What’s legal to say and do?
This is not legal advice for any jurisdiction, and the rules and laws, etc. vary from place to place. We encourage you to investigate critical issues further, to find what details apply to you and your needs. This list may not be complete. Our purpose here is just to suggest issues some people overlook and to give you a place to start.
We don’t mean to be discouraging. Rather, we want to help you pursue your podcasting ambitions with energy and confidence.
Rather than give you legal advice, we advise you to obtain expert legal guidance, or at least educate yourself a bit – browse the Web and read up on the subject before proceeding on what might be mistaken assumptions. There are some helpful links in the text, and at the end of this article. In particular, whether or not you intend to grant some form of re-use rights to your podcast, you should review the Creative Commons Podcasting Legal Guide.
So, what are some of the legal issues that every podcaster should be aware of?
Copyright of works by others
Will you use copyrighted recordings in your production? In most cases, you’ll need appropriate permission – first.
Whether you use music as an intro or ending theme, or as “bumpers” between segments, or for any reason, you are using it to add value to your product. The owners of that music (and any other recordings you use) deserve to be paid. Software exists that scours the Internet for unlicensed uses, so owners could easily find you, and then hit you with much more than a slap on the wrist. Either get explicit written permission for any use you make of a recording, or use licensed stock music. Even if you use a recording written and performed by a friend, get their permission in writing. And don’t get too smart – for example, a recording owned by the United States Government may be used as if it were in the Public Domain. But just because you found it at a .GOV website, don’t assume the federal government owns the recording outright. Don’t be lazy — check on its status. (Maybe “due diligence” should be called “do diligence”?)
Don’t be misled by simplistic disclaimers that you often see on YouTube, such as “no copyright violation is intended.” Apparently, some people think that will fend off any legal complaints. No, a copyright violation is a violation, “intended” or not. The only thing saving many such usurpers is that their sheer numbers may make them more trouble than they’re worth. Or the content owner ultimately likes the publicity. Whatever, that’s not a valid disclaimer.
There is the legal concept of “fair use.” For example, if a teacher distributes a copyrighted essay so that the class can discuss it, that’s probably a legitimate educational use and may be allowed in a limited fashion. Examples of legitimate Fair Use span a fairly wide range, but some lapse into gray areas. A parody may be allowed. Sampling, maybe not. For example, quoting a paragraph from a book in order to review or comment on it may be acceptable. Quoting it to perform as an audio play, maybe not.
Lifting even just a few lines from a song might be problematic, because songs are short and a quotation of any length could be a “substantial” part of one. (At least, it has been so argued.) We won’t play lawyer here. We just want to illustrate the complexities involved. By comparison, the technical side of podcasting is child’s play.
What other legal issues are there?
Other people’s trademarks
If you were somehow “podcasting in print,” you could put copyright notices somewhere, to indicate that brand names you mentioned belong to others. But you are audio, and we rarely hear such fastidious legal disclosure except in a company’s own commercials. It would sound weird to always say “Xerox brand” or whatever all the time.
However, at least be sure to use trademarks correctly. For example, don’t say, “I made a xerox.” Instead, say, “I made a Xerox copy” or “I made a copy.” (Legally, a trademark is always an adjective, never to be used as a noun or a verb.) There are many other classic examples, including “Coke” (the brand of a soft drink made by Coca-Cola Company), “Jet Ski” (personal watercraft made by Kawasaki Heavy Industries), and “ChapStik” (a lip balm from Pfizer, Inc.).
It might not matter, usually. After all, who in your audience would know what brand you really used, or care? But if you do an episode on the dangers of excessive sugar consumption, and you constantly refer to soft drinks as “cokes,” then it gets awkward.
So, if the brand isn’t important — and especially if it was some other product – why not say “I had a soda” (or soft drink, or pop, etc.), or “I used a moisturizer”?
The USPTO has more information on this, too.
Phone-ins, guest appearances and co-hosts
As voice-talent, you know that permission to use your voice can range from a complete buy-out to limited use over a limited. People appearing on your podcast may not know this, and anyway, don’t assume that you and they are following the same ground rules where usage rights are concerned.
If a listener calls and you patch them in, be sure to tell them clearly, at the outset, that they are “on the air” (or some such warning). If you use a screener (very advisable if you are podcasting live), have them tell the caller before you take the call … but still say it. If they clearly called with the intention of their being broadcast, that’s one thing. If they just called you and you broadcast them without permission, that’s very different.
The FCC doesn’t currently regulate podcasts, but it does regulate telephone systems, so its position with regard to use on the public airwaves might be relevant. The FCC says, in part:
“… a licensee shall inform any party to the call of the licensee’s intention to broadcast the conversation, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation that it is being or likely will be broadcast. … “
For full FCC policy on this, see https://www.fcc.gov/enforcement/orders/1836.
If you interview a guest, that’s likely a different sort of arrangement. Just as you would want the featured use of your own voice to be limited in some way, they may feel the same. They might even have the copyright on their verbatim responses to your questions.
So either have them sign a release before recording, or (before going live) record them saying something like “Yes, I allow you to use my recorded appearance in any and all media, everywhere, forever.”
Also have a second permission option in case they balk at anything so broad. Such an objection would not be out of line.
You at least want the permission to include re-broadcasting, promotional use of excerpts, editing for relevance or time, and possible inclusion of an audio reference in other shows on the topic. (For example, if you were to say to a guest, “My guest on a previous show said something similar. Let’s listen to that …”.)
But what if you were to package a bunch of episodes as “Best of …” or a “Guide to … “ series and sell it as a separate product? One never knows where success will lead. Thus the “all media, everywhere, forever.” And, in light of copyright law, even that may not be absolutely “forever.”
Protection of your materials
Your podcast has a title, right? Titles of books and such cannot be copyrighted, but a title can be trademarked. The time to make sure that your intended title isn’t somebody else’s registered or common-law trademark is before you start producing and promoting. And once you do start up, be sure to protect your own title, logo, promotional materials by trademarking and copyrighting them. In the U.S., your own work has basic copyright protection from the moment you publish it, but obtaining formal protection gives you greater recourse.
Ideas can’t be copyrighted, either. So you can discuss, say, an event as described in a copyrighted news story, if you’re talking about the situation and the facts or observations contained in that story. (The U.S. Copyright Act says copyright protection for an original work does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery regardless of form in which it is described, explained, illustrated, or embodied.”)
However, you might not be allowed to regularly read to your listeners the front page of the New York Times. Or even some paper’s Sunday funnies.
Which brings us to this.
Libel and slander
Don’t get the idea that you can say anything you want and be held harmless. It’s always a good practice to attribute your facts to the source you got them from (e.g., “according to the Washington Post” or “a story in Newsweek said…”). However, there is also a legal principle that “repetition is no defense,” especially if you made no effort to determine the truth. Spreading a rumor with malice in your heart can lead to trouble.
Also, whatever your local law says, assume that someone is innocent until proven guilty in court. As we’ve all heard so many times: say “the alleged perpetrator …”.
Whatever the nature of your podcast, be truthful, and do not embarrass others. Learn where the borderlines are between what you can say in public discussion and what you should not. Also note that the rules vary from country to country. In the U.S., truth is a defense, but in some countries, the burden of proving it’s true may fall on you. Or a statement’s being true could make the defamation that much more injurious!
A rule of thumb might be, “Even if true, don’t say anything about someone that you wouldn’t say to their face” (assuming you’re a nice person), but there still may be hidden pitfalls. For example, the complaint might be as vague as “emotional distress.” Whether they have a case or not, you don’t need such emotional distress yourself.
The usual legal concerns of any business
Podcasting as a business activity involves the same legal issues as other business activities. Does your municipality impose a tax on small businesses or home offices, or at least require filing a form? Does your homeowner’s or renter’s insurance cover equipment used for business purposes? If not, you might need separate insurance, or just a rider. Same for liability — are you covered if a guest or co-host visits for the podcast session? If your other voice-over work doesn’t involve the presence of guests or performers in your studio, you may not have thought about this. Think about it now.
For general business matters related to voice-acting, the book of attorney and voice actor (and Edge Studio coach) Rob Sciglimpaglia, Voice Over Legal, is a handy guide.
Podcasting is international. Laws may vary.
In fact, laws surely vary. We doubt you can be aware of every nuance of every law in every country, but you should be aware of where your listeners tend to be located, and be especially aware of any re-use outside your originating country.
Don’t let the legal issues scare you off. Instead, consider them an opportunity to protect yourself, in a wide variety of ways.
“The changing world of Podcasting,” Edge Studio. October 3, 2014
“PART TWO: 17 Podcast Programming Pointers,” Edge Studio. October 7, 2014
“ “Voice Over Legal,” by Robert Sciglimpaglia Jr., Attorney and Voice Actor. (Published by Voice-Over Xtra).
“United States Patent and Trademark Office.
“FCC Policy on Broadcast of Telephone Conversations,
“ “Podcasting Legal Guide.”
“What is Creative Commons?
“Listen Up: 2017 Podcast Predictions. Advertising Age.
“9 Tips to keep your podcast legal,” by Gordon P. Firemark.
Podcasting Legal Issues: How to Avoid Infringement with our Podcast,” by Deserae Weitman, April 12, 2016.
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