According to recent statistics, 112 million Americans have listened to a podcast and 67 million listen monthly. Those are some impressive numbers. There’s no debating that you can get some amazing bang for your marketing effort and buck with a podcast. It provides you the opportunity to reach a large number of potential customers in their preferred format.
Beyond the statistics, podcasting provides you with a medium to stand alongside some truly amazing people. If you look at the list of the 200 most popular podcasts, you’ll find quite a few that were started by online entrepreneurs who have risen to fame due, at least in part, to their podcasts. These online entrepreneurs are alongside famous actors, scientist, and world-renowned thinkers (and WAY too many shows about Game of Thrones).
And podcasting also gives the the ability to make some amazing relationships. You often hear from podcast advocates about the relationships between hosts and guests, and I can speak to it personally. I’ve appeared on over 30 podcasts as a guest and count the hosts of those shows as some of my biggest advocates and future joint venture partners.
So, yeah, podcasting is an awesome business tool. But, let me take a moment to have an honest discussion with you.
As a lawyer, I’ve been trained to see the potential pitfalls and problems that can come up down the road. I gotta be honest, it kinda sucks to always be the guy that sees potential problems, but that’s what my legal training beat into me and it actually comes in handy as a counterpoint to the unbridled exuberance that we entrepreneurs tend to have.
So I view my job as helping you avoid disasters down the road. The last thing you want is for your podcast – which should be a tool that helps propel your business – to become an anchor that drags you down. To make sure this doesn’t happen, you need to avoid the risks that come with podcasting.
I’m not talking about business risks because those are really only an issue if you check you common sense at the recording studio door. No, I’m talking about legal risks. Risks that you are taking on but may not realize you are taking on. This post highlights some of the biggest risks and provides guidance on what to do to avoid finding yourself in hot water.
No, You Can’t Just Fix It Later. . .
Before we get to the specific mistakes, I need to address one of the biggest excuses/misconceptions I hear from entrepreneurs (across just about every field). They figure they don’t need to worry about legal issues up front because they think they can just fix them later if they succeed. It’s hard to put into words what that makes me think as a lawyer. This picture is probably a pretty good depiction. I feel a migraine coming on when I hear this.
The fact is that if you make legal mistakes at the outset, you are planting a time bomb in your business that could go off at any moment. Not a wise move under any circumstances. But the reality is that its worse than you think. Why? Well because these time bombs always seem to go off at the WORST possible time. Let’s just play this out for a bit with respect to your podcast.
When you first launch a podcast, you may feel a bit lonely. I like to joke that when I launch my podcast, I’m likely to have three listeners (my mom, my dad, and my wife). That’s a bit of an exaggeration, but you get the point. When you first launch, you are not going to be “huge.” Even the podcasts that make the “New and Noteworthy” list often have a couple dozen reviews (and probably about the same number of loyal listeners).
Why does this matter? Well, if you screw something up legally, you aren’t likely to hear about it at the time. You won’t have a big enough following to make waves or to get on the radar screen of anyone whose rights you violate. So, you won’t be able to fix any mistakes early on when you are just starting to build your brand.
You will go on your way putting in the work to build your podcast (and your business). Every week you’ll put out a show (or more than one), you’ll create awesome show notes, and you’ll spend time and maybe even money promoting the heck out of your masterpiece. It won’t be pretty or glamorous, but it’s what we entrepreneurs do. You will spend long days and nights researching your guests, creating interview outlines, editing your podcasts, and creating beautiful show notes. Or maybe you’ll sink some serious cash into the podcast to accelerate the growth and to outsource some of the tasks.
You’ll be putting in this work while there is a time bomb ticking away inside your business. . .
Eventually, the consistency will pay off. Your months (or years) of work will get you noticed by all the right people. If your show is good (and I’m sure it is and/or will be), you are going to end up with tons of fans who are cheering your name and spreading the word about your awesome podcast. You’ll look up one day and your audience will look like this:
You’ll be on top of the world. And that’s when the time bomb you planted at the beginning will go off. That’s when someone will come knocking on your door demanding that you change the name of your podcast or claiming to own part of it or claiming that you owe them a royalty for every download.
Yep, once you get to the pinnacle, you’ll come crashing down and have to start from scratch because you thought you could fix it later. And there won’t be anything I (or any other high-priced lawyer) can do to make it better. I’ll gladly let you cry on my shoulder (for a fee of course!), but there won’t be anything that I can to do help you legally.
So, unless you want to find yourself crying on someone’s shoulder later when your podcast and business come crashing down, you need to do things right from the get-go (or at least as soon as you come across this post) rather than waiting until the bomb goes off in your business.
Okay, now on to the specific errors. . .
Avoid Choosing A Name That Could Get You Sued
The first mistake that you absolutely MUST avoid is picking a name that is already taken. Under the law, the first person (or company) to use a brand name has the right to use it and to prevent others from using it in the same field. You ABSOLUTELY NEED to be FIRST.
To quote my favorite fictional race car driver (Ricky Bobby): “If you ain’t first, you’re last.” That’s really bad advice in most circumstances, but it pretty much holds true for branding. The first person or company that uses a name has the exclusive right to use it under a concept known as trademark law, and everyone who comes later is at risk.
I’m sure it seems like common sense that you couldn’t launch a footwear company and call it Nike.
For some reason, podcasters either think this doesn’t apply to podcasts or just don’t take the time to think about it. I have come across numerous examples of podcasts that are putting themselves at risk by running afoul of this rule.
True story – a couple of years ago I was approached to appear on a show about social media issues. I wasn’t out trying to get interviews, but I was ecstatic. I mean, who doesn’t want to appear on a podcast as an “expert.” When I got an email telling me the show had gone live, I went to iTunes to find it.
This was not exactly a stellar operation, so they did not provide any links to the iTunes show for me, so I ran a search with the name and found not one, not two, not three, but four different shows with the exact same name (and ironically, the show I was on didn’t even show up). As an entrepreneur I found this curious because I thought you would want someone to immediately be able to find your show. As an intellectual property lawyer, I just shook my head.
The later podcasts were all taking a huge risk. Under trademark law, the show that launched first had the exclusive right to use the name.
So what does this mean? What will happen if you use a name that someone else holds the trademark for?
If you infringe someone’s trademark and get to the point of having raving fans, you are likely to come to the attention of the trademark holder. At that point, the trademark holder will almost certainly take action. You’ll end up looking at a cease and desist letter that demands that you stop using the name and take down all references to prior shows.
Your heart will sink, and you’ll be struck by a sense of panic.
At that point, you’ll come to me, looking for help. You’ll beg me to help you avoid having to throw away everything you’ve built, but I won’t be able to help. The trademark holder will almost certainly have the right to stop you from using the name on which you’ve chosen to build your business. And the last thing you’ll want to do is sink hundreds of thousands of dollars (yeah, you read that right) to pay a lawyer to try to fight this battle for you.
You’ll end up with no choice but to change the name of your podcast. You won’t exactly be starting from zero, but you will be losing most of what you’ve built.
So please, for the sake of your business and future sanity, choose a name that is unique and has not already been taken.
Great Music Is Awesome, But Being Sued Over It Is A Bummer!
There is no question that having great intro/bump/outro music for your podcast can have a huge impact on the overall feel of the show. The right music can set the overall feel for your show and can make your show seem more professional. So, you definitely want to have some great music.
Choosing the wrong music can put you in legal jeopardy, though. Really, it’s not about picking the wrong music, it’s about not getting permission to use the music.
I’ve come across SO many podcasts that I’m pretty sure are not following this advice. Have you ever been listening to an obscure podcast (one that isn’t likely to be making much money) and notice that it is using commercially successful music? I have (and I’m talking about Top 10 hits). I’m quite certain the podcast host has not gotten permission to use the music.
If you want to use music in your podcast, you have to get what is called a “license.” Otherwise, you are infringing the copyrights that protect the music (music generally will have multiple copyrights). You probably remember the “FBI Warnings” on videos – you know the ones that say you are committing a federal crime if you play the video commercially. If you include unlicensed music in your podcast you are doing the exact same thing.
So why are so many people doing this? I think part of the problem is there are lots of non-lawyers out there spreading around “rules” that they say make it all okay. Anytime a non-lawyer is talking about the law, it’s what we lawyers like to call “street law.”
You’ve probably heard some street law about copyrights. Did you hear the one about how you can play up to 7 seconds of music without violating copyright law? I get asked about that one a lot.
Nothing drives me nuts more than hearing “street law” because it is almost never true. The advice about copyright is definitely wrong. You cannot play any length of a copyrighted song without permission. Period.
As an aside, who comes up with these crazy street law rules? These aren’t vague ideas; they are specific rules with really specific requirements. Somebody really took the time to think this through to make something up that is not true. My advice to you is that you should generally not believe any “street law” you hear from someone even if it is so specific that you think it must be true.
So I’ve told you what you can’t do, but what are you supposed to do? You have three options.
First, you can go with one of the sources of royalty free music that you buy for a one time charge. I’ve never used any of these services, but you can find royalty free music at Music Bakery, Pond 5, Audio Jungle, and Audioblocks. If you get music from any of these sites, you are free to use it on your podcast without having to worry about later having to pay a royalty on each download.
Second, you can get a license to play popular music. This will be a complicated and expensive process. You’ll have to figure out who owns the copyright and who has the power to license the copyright (you can generally get licenses to popular music from a handful of big repositories). After the locate the right company to be talking with, you could easily be talking about a licensing fee in the thousands for a single song. I’m all for great music, but can’t imagine paying that kind of license for a podcast.
Third, you might have some friends who can create the music for you. That can be a huge win because you can have your friends write and record music that has the perfect sound and be sure that no one else will be using the same music. If you go this route, though, you need to remember that your friends own the copyright to the music. So before you start using it, get them to either license it to you or to transfer the copyright to you (and get this in writing).
As great as the perfect music is, it’s not worth risking getting sued over. Use only licensed music. Period.
Do you own your podcast?
Are you sure that you own your podcast? How about all the artwork and other relevant elements that you use to promote it?
If you don’t have written agreements with all employees you shouldn’t be so sure. If you don’t have agreements with any independent contractors who created any logos or artwork, you shouldn’t be so sure. To guarantee that you own your podcast outright and that you own all the relevant components, you need to have written agreements in place.
First, you need to have agreements with all your employees that sets out that they are employees not owners. Although this is not a strict legal requirement, it is a very good practice. If you don’t have these agreements in place, you may end up facing a lawsuit down the line (but only once you are hugely successful), in which an employee claims to be an owner.
I’m not making this risk up. It has happened. In the context of a podcast. Media personality Adam Carolla found himself in a lawsuit with his long-time friend about the ownership of Carolla’s podcast. Carolla’s friend of 30 years helped him start a podcast. Carolla ultimately pushed him out of the business and a lawsuit ensued. His friend contended that they had a “handshake deal” that entitled him to an ownership interest in the podcast. Was he right? I have no idea because there was no written agreement.
Carolla and his friend ended up in a dispute that lasted over two years and almost certainly cost the two of them over a million dollars in fees to lawyers like me. They could have avoided it all if they’d simply written down what the agreement was at the outset.
This serves as a cautionary tale. If you don’t have your agreements in writing, you open yourself up to a dispute. One of the last things you should want is to have an employee (or former employee) claim to own part of the business you’ve built with your hard work. This means you need to have written agreements clearly setting out that they are employees, not owners.
Second, you need to have written agreements transferring the rights to any artwork you are using in your podcast (or business more generally). Artwork is copyrighted material. You may not absolutely need a written agreement with an independent contractor who created it for you because it may qualify for what is called “work for hire,” but why would you want to risk it (and have to come to a lawyer like me down the line) when you could just get a written agreement at the outset.
Just like you should have an agreement with all employees to make sure they don’t claim to be owner of your podcast, you should get written agreements with anyone who created artwork to make sure it is clear that they’ve transferred all rights in that artwork to you. This will pretty much short-circuit any future disputes.
The upshot is simple. You need written agreements with your employees and independent contractors to avoid any dispute about who owns your podcast, your artwork, and your business.
Get The Right Releases Before Interviews.
Do you have your guests agree to anything before they appear on your show? If not, you are making a mistake that could cost you down the line. There are two separate areas of intellectual property at play here – copyright and the right to publicity.
First, let’s talk about copyright issues. Your podcast is a copyrighted work, and the protection comes about the minute you record the interview. Have you ever stopped to wonder who “owns” the copyright? I’m betting you haven’t. The question of who owns the copyright in an interview is actually a pretty murky issue. Courts have appeared to reach different conclusions about whether the interviewer, the interviewee, or both own the copyright.
Second, let’s talk about the right to publicity. Publicity rights are also a bit murky because they are governed by a patchwork of state laws in addition to some basic federal law. But what is pretty clear and consistent is that you can’t use someone’s name, image, or likeness without their consent. This includes your guests, and using the interview on your podcast (not to mention the marketing) would clearly include using the guests name, image, and likeness.
I can hear you now asking: Seriously, doesn’t the fact that the guest agreed to appear on the show give me permission to use the interview. Luckily, the answer is almost certainly yes. It would be hard to imagine a court ever concluding that your guests did not give you implicit consent to use the interview and their name, image, and likeness.
So I’ve told you why you probably don’t need anything express to allow you to air your podcast, so you’re probably wondering why you need to worry about this. Here’s why. What if you want to repackage the interview later? You may decide to include recordings of certain podcast interviews in an online course. Or maybe you create a PDF with the “best advice” from all your podcast interviews to use as a lead magnet. The possibilities are endless.
While I can’t imagine any court concluding that your guest didn’t gave you permission to air the interview, it’s not nearly so clear that you would win a dispute about repackaged content. Did your guest implicitly agree that you could reuse their quotes or their celebrity in repackaged content? That’s going to be a harder case to make.
To give yourself maximum flexibility in the future, you should have your guests agree to a release that transfers all copyright protection to you and gives you the right to use the content however you want in the future.
Since we are in an online world, I would not expect you to have a guest sign a paper document. Instead, you can simply work this into the terms that your guests agree to by submitting their request through your scheduling link. This is how the savvy podcasts hosts I’ve dealt with have handled the issue. With that agreement, they are golden and can use my tidbits of wisdom to their hearts’ content.
Be Mindful Of Confidentiality.
Back during World War II, the United States war department created a wonderful phrase: “Loose lips sink ships.” Although few of us will have information that could sink a ship, loose lips can certainly sink our businesses (or at least get us in some pretty hot water legally). In creating and recording your podcast, you need to be mindful not to share any confidential information.
Here, there are two separate issues. First, you need to keep in mind that you don’t want to share any of your own confidential information. If you have a “secret sauce” to your business and you take steps to keep that information confidential, it will be protected legally as a trade secret. The minute you share any information on a podcast, it is no longer confidential, so it won’t be protected.
How might this come into play during a podcast? Maybe you have a special way of performing your particular area of expertise (e.g., a proprietary method for creating and optimizing Facebook Ads). You could certainly imagine that issue coming up in a discussion on a podcast. Similarly, pricing information or your customer list might be issues that would be pertinent. Sharing this information will mean you lose protection.
In reality, the issues that arise are rarely with entrepreneurs sharing their own secrets because we all tend to guard those pretty closely. But seriously, be mindful of this and don’t do it.
The second potential issue – and the one that is more likely to arise – is with inadvertently sharing information that you are not allowed to share as a result of a confidentiality agreement you have with or ethical obligation you have to someone else. This duty might arise as a result of a joint venture in which you learned some proprietary information of your partner or (like me) because your profession has ethical rules limiting your ability to disclose information about clients. Or maybe your standard client contract has confidentiality obligations.
You need to be mindful of your obligations during your podcast interviews. The best podcasts generally involve great stories – of triumph and defeat. So there is often a temptation to pick the juiciest story we can think of to relate to the message. If that story is subject to confidentiality restrictions, you can’t share it.
The bottom line here is to use basic common sense. Don’t let loose lips sink your business.
If You Don’t Have Anything Nice To Say, Don’t Say Anything At All.
I’m sure your parents, grandparents, or kindergarten teacher taught you the old rule that if you don’t have anything nice to say about someone, you shouldn’t say anything at all. Following this advice on your podcast will not only make your parents proud but also keep you out of legal jeopardy.
In the law, there is a concept called “defamation.” Basically, this concept means that you can be sued if you say something that is false and hurtful about someone else. Most people don’t know that that being rude could – in the right (or maybe wrong) circumstances – actually get you in some pretty hot water legally.
Now, defamation does not prevent you from giving an opinion, which is what gives critics protection when they do things like pan the movie Term Life, the Vince Vaughn movie that grossed $13,o40 at the box office. Actually, the critics who gave such horrible reviews to Term Life were also probably protected by the other defense to defamation – truth is an absolute defense.
I’m not telling you that you can’t do movie reviews, book reviews, music reviews, or any other kind of reviews on your podcast. That’s not going to get you in hot water. But you need to be careful to avoid making negative comments about specific people.
I once appeared on a podcast in which the host was giving me a compliment by saying that I was not “one of those people who…” That was absolutely fine (especially because he was paying ME a compliment). But if he had gone on to name a particular person that he was saying was not as good and made nasty comments about that person, he might have come close to the line.
This is not an area where you are sure to lose and find yourself in trouble, but is it really worth taking any risk here? Unless you intend to be a “shock” jock, there really is no reason to be insulting. And if that is what you have planned, you really should talk with a lawyer directly and get a very specific, nuanced understanding of defamation law before you do it.
Otherwise, just heed you parents’ advice and avoid saying anything negative about other people.
Podcasting is an awesome business-building tool. The trick is to make sure that what should be an unmitigated positive does not end up as a drag on your business. That means avoiding legal errors. So remember some simple steps
Choose a name your are allowed to use.
Don’t use music without a license.
Make sure you get employment agreements and transfer agreements from anyone who created material for you.
Get guests to sign broad released in advance so you are free to use the interviews in any format.
Avoid disclosing any confidential information.
Avoid negative comments about other people.
If you follow these basic steps (and get the write documentation in place from the outset), you should avoid legal headaches. If you’d like to get a condensed version of this to refer back to, don’t forget to download the free Podcast Legal Checklist.
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