Introduction

Podcasts are relatively new but have eventually grown a lot of popularity amongst the audiences these days. Especially at such times of COVID-19, while everybody is stuck at home, podcasts come into the picture even more than before. There is a podcast for almost anything these days. Talk about law, sports, fashion, music, makeup, or any other thing. You name it, and you have a podcast for that. However, the increase in the number of podcasts increases the associated legal issues with creating, hosting, or producing a podcast.

The notable issues that can arise with regard to a podcast are when someone uses third-party information in their podcasts. This may include using a name, phrase, logo that is already in use, or even using someone else's words or phrases without seeking their permission or giving them the credits.  The main legal hurdles that come in the way of podcasts are copyright, trademark, and publicity rights.

Copyright issues in a podcast

Copyright tends to protect original works by someone that is fixed in a tangible form of expression, such as a physical copy, videotape, film, etc. This is done by giving the creator of the fixed work exclusive right to display, perform, make copies of, distribute, and prepare derivative works of the original work.

A podcast essentially has a lot of scope for infringement. For example, Most intros and outros typically consist of some mix of music and speech. Music, once recorded, is copyrightable. This means that in absence of prior consent from the original artist, no one cannot simply search and add any music to their podcast. A music license agreement, preferably in writing is required to use someone else's music.

Similarly, any other form of artwork like photographs quotes, etc, cannot be used to promote or advertise a podcast. For that, either the artwork has to be completely original or be licensed for use by the creator/copyright owner.

In order to avoid any form of copyright infringement, it is best advisable, to begin with creating original content and getting copyright registration for the same. The application process is pretty straightforward with a basic fee. Registering copyrights will also be helpful if the podcast one day moves into other media, such as television or a published book.

The second step would be to take proper consent from a third party in case a podcast uses its work of art. Preferably, the request would be in writing, clearly and concisely defining the intended use of the work and the assent to the use would be in writing and unequivocal. A formal legal written licensing agreement signed by both parties is even better! However, in the following cases, permission is not required to incorporate someone else's work in a podcast:

  • Use of works that are in the public domain;
  •  Use of works owned by the Government;
  • Use of a fact, idea, theory, slogan, title, or short phrase;
  • Use of creative commons licensed content
  •  Under the doctrine of "fair use"

Doctrine of Fair-use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Under US copyright law, Fair use of copyrighted materials is allowed for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, and such reproduction does not amount to infringement of copyright.

Trademark issues in a podcast

A trademark is a name, phrase, design, symbol, or a combination of these things that basically represents a brand, identifies it, and distinguishes the source of the goods of one party from those of others.

To begin with, the podcast creator has to make sure that the title or name of the podcast is not already associated with a registered trademark in the media space and/or includes a registered logo mark. It is absolutely essential from the legal point of view, to make sure the owner conducts an in-depth trademark search and ensure that the name he\she is looking for, is not already in use.

Second, on the list comes the logo. Obviously, a logo is a very important asset to any brand. The logo will be featured on all the platforms where the podcast will be advertised. Thus making sure that the logo is original and not already in use is a good kick start.

Once done with ensuring uniqueness in the title and logo, the podcast owner should make sure to register the mark to avoid people infringing on his own mark. Simply using the word, phrase, or logo "in commerce" is enough to give some rights to enforce against infringers, but registration gives more rights and enhanced damages if someone tries to rip off a mark. Although registering a trademark can be a lengthy and expensive process, it still holds its importance because of the benefits it brings with itself.

Publicity Rights and Podcasting

One of the very common practices with podcasts is inviting over guests to talk on air. Guests come and talk about a particular topic on podcasts or maybe casually give away an interview. As fun as it sounds, from the legal point of view, there are certain things that need to be clarified beforehand. Before a podcast creator features anyone on his podcast and/or accompanying website, they need to sign a written release of their publicity rights in connection with the podcast. The agreement needs to clearly state that the guest is willfully giving their consent over the use of their names and likenesses (e.g., voices), for commercial, advertising, and promotional purposes. This will release the podcast owner from the liability that may arise from unauthorized use of the name and the likeliness of the guest's credentials. While it's best to obtain this consent in the written format, this consent can also be secured verbally by having the guest read a brief script on air.

Conclusion

Podcasts are a great way to voice one's opinion and knowledge about a particular topic or a set of topics altogether, in front of the audience. It is not difficult to create a podcast. However, originality and uniqueness have got to be the key here. People tend to overlook the legal prospect of starting any form of business, Podcasts, in this case. This ignorance can cost them a lot of financial and mental straining in case they tend to infringe someone else's work or art or even in case someone else infringes their own work. To avoid all of these issues, it is essential for podcast creators to pay attention to the basic legal benefits provided to them by the law and save themselves from such a mess.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.