Protecting Your Podcast: Intellectual Property Issues Every Podcaster Should Know

As podcasts continue to proliferate, the legal considerations are increasingly complex. Some podcasts are solo episodes, some have co-hosts and guests, some are produced by the podcaster, and some are produced by an agency. Some consist solely of audio, while others include accompanying video. To avoid cease and desist letters, infringement suits and takedown alerts, there are steps that will protect both past (because it is not too late to protect an episode after you have released it) and future podcast episodes.

Copyright and Trademark Protection

Podcast episodes can be copyrighted as film or audio works. A podcast description can be copyrighted as a literary work, while podcast cover art can be copyrighted under certain circumstances. However, cover art created on sites like Canva may not be eligible for copyright protection because the service may claim ownership of the final product. Additionally, cover art created with AI art generators similarly may not be eligible for copyright as the Copyright Office does not register works created by AI.

A podcast’s original introductory music can also be copyrighted. (See below as to the use of third-party music.)

There are many benefits to registering copyrights in the various elements comprising your podcast, but most importantly, statutory and punitive damages are available in lawsuits for infringement of a work only if it is registered.

It is also wise to trademark your podcast name, as a podcast can be a brand with its own goodwill in the marketplace. If you have yet to select a name for your podcast, strategically select a name that can be trademarked to help protect against imitators and can be registered as a domain name to secure the strongest online presence.

Advertising, Sponsorship and Agency Contracts

Because podcasts are typically available to the public for free, much of a podcast’s revenue comes from selling advertising or sponsorships. Brands will most often want to control the narrative around their brand, to ensure the podcast is consistent with their marketing objectives and enhances goodwill among their current and prospective consumers. Therefore, many brands have creators sign contracts that limit what they can say or do, specifying how many times creators can mention the product and whether the advertisement can be reused in other media. It is also common for brands to have review rights. Additionally, there may be morals clauses that allow the brand to terminate a contract if the creator is accused of immoral behavior. Each of these provisions can have serious consequences for the podcast, the creator’s revenue, the relationship between the podcaster and the brand and future revenue opportunities. Because of the potential consequences, an attorney should carefully review these contracts.

Finally, if your podcast includes an endorsement, ensure that it complies with Federal Trade Commission (FTC) guidelines. FTC guidelines mandate that endorsements must not be misleading to consumers, so connections between the endorser and the product’s company should be disclosed. The FTC also lays out additional requirements about when you must disclose that the product was gifted, how you can solicit endorsements and what influencers can say about a product.

Legal counsel is also advised when podcasters negotiate contracts with an agency to represent them. Typically, podcasts are first uploaded to hosting services and then to listening services like Spotify or Apple Podcasts. These podcast service terms should be understood before use because they can affect the monetization of the podcast.

Many podcasts have co-hosts or guests. It is important that the respective ownership rights are articulated clearly in writing to avoid future conflicts or misunderstandings. A guest is entitled to claim a copyright interest (and the control that it affords) when his/her words are fixed in a tangible medium, like a digital file. Therefore, podcasters should carefully consider the terms by which a guest appears on the show and whether you want your guest to grant the podcast exclusive ownership of the content or whether the guest should be a co-owner of the copyright in the episode. Failing to work through these details before the podcast is fixed can lead to misunderstandings or conflicts at a later date.

Using Another’s Intellectual Property

If you do not own the music used in the podcast, it must be in the public domain, fall under a Creative Commons license or otherwise be licensed. Pay attention to licensing terms, such as mandatory attribution. If your podcast uses a third-party audio or visual clip that is not otherwise available for use, you and your lawyer should undertake a fair use analysis. Fair use is less likely if you are monetizing the clip, but fair use is decided on a case-by-case basis after reviewing the four fair use factors: purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used in relation to the copyrighted work as a whole and market effect on the copyrighted work. Being unprepared before the podcast is recorded and aired can be a recipe for legal challenges after the fact.

It is also essential to keep complete records of quotes, images or sound clips you use, including their sources, licensing information and copyright owners. Once again, first look for intellectual property that is either in the public domain or available under a Creative Commons license or fair use. Otherwise, a license or written permission should be obtained.

Defamation Considerations

Defamation is a false statement of fact (not an opinion) that injures someone’s reputation, so make sure to confirm the accuracy of factual statements before the podcast is published. An additional word of caution: factual statements wrapped in opinions can still defame, so care and attention to words are important. Liability can be exacerbated by the mere act of republishing defamatory content. Special rules apply to public figures and those caught in the web of public events, most notably a stricter standard for proof, i.e., a showing of “actual malice” or that a factual statement is made with knowing it is false or reckless disregard for the truth.

Insurance

Lastly, no matter how diligent a podcaster follows best business practices and seeks legal counsel when appropriate, errors and omissions insurance provides essential coverage for the unexpected.

Given the layers of protection that you can and should use to avoid liability and maximize the return for your podcast, Lutzker & Lutzker can help ensure that your podcast is protected in contracts and licenses and by pursuing copyright and trademark registration. For further reading from our website on the topics discussed here, see the following insights and IP Bits & Pieces®: The New Songwriters: AI, Music and the Law, Copyrights and Co-Ownership, Trademarks and Co-Ownership, Contracting Checklist for Intellectual Property Co-Ownership Agreements and our Copyright FAQs and Trademark FAQs.