DISCLAIMER: This material was not created by, but is being shared by, the Chamber Collaborative on behalf of a member.
By Paul J. Durham, Esq.
Today’s most popular podcasts can attract millions of listeners and generate enormous advertising dollars. Although the vast majority of podcasts accumulate far smaller audiences, they can still help their creators accomplish important goals. Increasingly, businesses are growing their brands by producing and distributing free podcast content. Whether you are just a hobbyist or are launching a podcast to expand your business, consider these simple legal tips to avoid potential headaches down the road.
1. Don’t use music (or other copyrighted material) without permission. Most of the materials included in a podcast will be subject to copyright law. If you create all of your own original content you may have little to worry about with respect to rights and permissions. But think twice (and then a third time) before using that five-to-10 second sample of your favorite song as introductory music. Unless you have licensed that clip, which can be a time-consuming and expensive process, you are probably infringing upon someone else’s rights. That said, with a little research, you can license royalty-free or otherwise “pod-safe” music from clearinghouses that are easily found online.
2. Clear rights to episode art and images. Podcast logos and cover art are important elements of branding your podcast. Just remember that, like music, any images or photos you may come across are not necessarily free for the taking. Be sure to obtain necessary permissions and licenses before incorporating any third party’s artwork into your podcast cover.
3. Interviewing guests? Consider signed releases. In addition to copyright issues, podcasters should have a basic understanding of right of publicity laws, which vary from to state to state. Generally speaking, a right of publicity claim could arise if you used someone’s name, likeness, or voice in a podcast for purposes of advertising or selling the podcast without their consent. There are various exceptions and qualifications to this general statement, and implied consent may apply for guests who knowingly agree to be interviewed. Nevertheless, it may be a good idea to obtain either a written or audio-recorded consent from guests and podcast participants, particularly if you are monetizing your podcast.
4. Working together? Don’t forget a co-author agreement. Podcasting can be a lot more fun when you are not going it alone. If you are part of a producing team or work with a co-host, consider the rights that each of you may have to the creative content embodied in the podcast itself. Who has ultimate creative control? Will any revenues be shared equally? If one host wants to quit, can the other continue the podcast? Although applicable law will “fill in” many answers absent an express agreement, these questions are better addressed by contract.
[Businesses of all shapes and sizes have begun using podcasts to connect with their communities. That includes Sheehan Phinney. We have recently launched From the Market Square, a business law podcast where I interview entrepreneurs and community leaders from the Seacoast and beyond.]
Listen to From the Market Square: https://www.sheehan.com/resources/podcasts/ or on Apple Podcasts: https://podcasts.apple.com/us/podcast/from-the-market-square/id1548017944
Sheehan Phinney has offices in Manchester, Concord, the Upper Valley, Boston, and soon Portsmouth. We provide a broad range of sophisticated legal services to our business clients. Visit sheehan.com to learn more. Durham can be reached at firstname.lastname@example.org.
While the above information may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.