Entertainment Law Series, Vol. 3: How to Legally Start a Podcast
Podcasting has become an extremely popular form of news and entertainment both in the U.S. and globally. Many of us have friends and family that have even launched their own podcasts. There were an estimated 88 million podcast listeners in the U.S. in 2019. Forecasts suggest that the number of podcast listeners will surpass 160 million in 2023 with increases of around 20 million each year.
Podcasts are digital audio files made available on the internet for downloading to a computer or mobile device. They are typically available as a series whereby subscribers can receive new installments automatically. The five major players in the podcasting software industry are Apple Podcasts, Spotify, Stitcher, Overcast, and Google Podcasts.
With the large and growing number of podcast listeners, there are opportunities for podcasters with large listener bases to make a profit from advertisers looking to promote their goods or services through podcasts.
If you are serious about starting a podcast with the intention to work on your podcast full time, it's extremely important that you run your podcast as a business. First, you should consider forming a business entity in your state which will allow you to protect yourself and your partners from the liabilities and operations of the podcast. After forming a business entity, you will be able to start a bank account for the podcast to separate its assets from the assets of its owners. You will also be able to safely engage with new partners and third parties.
Next, you will want to discuss protecting your podcast’s intellectual property (IP) with an attorney that specializes in IP. The IP concerns surrounding podcasts involve filing a trademark to protect the name and logo of your podcast, protecting podcast recordings with copyright, and licensing material to use in your podcast.
As an initial step, you will want to file a trademark for your podcast’s name and/or logo to build and protect your brand identity. One of the most recognizable, trademarked podcast logos is the one for "The Joe Rogan Experience". Joe Rogan’s podcast is currently the second most listened to podcast in the country.
When you submit your podcast to Apple, Spotify, or any other podcast servicer, you must confirm that you own or have the right to use your logo. Be sure to file a trademark for your podcast logo before submitting your podcast for publishing. Submitting your podcast does not protect you from infringement claims, and the servicers have no desire to be dragged into a infringement dispute over your logo so, therefore, will not protect you. With this in mind, make sure you can prove your ownership of the logo and/or name.
You will also want to ensure that others do not copy the content of your podcast, so you will want to obtain copyright protection for your podcast. The Copyright Act is meant to protect original works of authorship that are fixed in a tangible form of expression. As a copyright owner, the podcaster has the right to display, perform, make copies, distribute, and most importantly, make money from the podcast.
A major concern with podcasting is getting the permission to use the copyrighted work of another in your podcast. For example, most podcasts use music for their intros and outros along with artwork/graphic designs for their podcasts. If you do not own the music or images used, you will need to obtain permission from the owner by entering into a licensing agreement with them and paying them an agreed upon fee. These agreements are tailored to the exact use stated in the agreement so you can't use it for anything else. For example, if you license Drake’s “In My Feelings” specifically for the intro of your podcast, you cannot then use the song for a documentary you plan on producing later.
Licensing a work can cost anywhere from $500-$2,000 with an annual renewal required for the podcast to be able to stay up with the copyrighted work. The price is dependent on the leverage of the parties. Although a licensing agreement can be costly, using protected work without consent can result in your podcast becoming liable for expensive infringement actions. The damages for copyright infringement can include a statutory penalty and/or damages incurred due to the infringement.
There are two common ways to use someone else’s work for free. First, podcasters can use works that are in the public domain. Works in the public domain are works that have lost their protection due to the expiration of their copyright protection or works that the creator has decided not to protect. You can use works in the public domain for almost any purpose, but you cannot file to protect the work as your own.
Second, you can use copyrighted works if you successfully assert a Fair Use defense. The Copyright Act sets out guidelines that enables copyright owners, users, and courts to determine whether a particular use may be fair. There are no rigid guidelines. Instead, the court would weigh the following factors to determine if a use is fair:
• The purpose and character of the use.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use on the potential market for or value of the copyrighted work. 17 U.S.C § 107.
The four factors are not exhaustive. A proper fair use analysis must weigh each factor but should also take into account any other relevant considerations. You should always reach out to an attorney before using someone else’s copyright under the fair use doctrine because if you were wrong, there can be operational disruptions and expenses if they can prove your use was not fair.
Podcasters make a lot of their money by allowing businesses to advertise their services or goods on their podcasts. Podcasters with a large listener base have the advantage of charging advertisers more for advertising to their listeners. The industry average rates for podcast advertising are $18 for 30-Second Ad CPM (cost per mille or cost per 1,000 listeners) and $25 for 60-Second Ad CPM.
When entering into an agreement with an advertiser, both parties will have to agree on the exact usage of the ad within the podcast. Advertisements vary in length of time, content, and form, so you will want to go over exactly how the ad will be delivered to the podcast listeners. Advertisers want to make sure that the information in the ad is correct, so you will want to discuss how the parties will handle correcting mistakes should they arise. You should also go over tracking metrics so you can measure the impact of the ad. If you can drive sales to the company, you will have the leverage of demanding more money upon the expiration of your current agreement. Furthermore, the contract between you and the advertiser should specify end of term procedures.
Lastly, like journalists, podcasters should always tell the truth and try to verify the information provided to its listeners because if you say something false or unjustly harmful about someone else, you could be liable for defamation. Defamation is a false statement that is either written (libel) or spoken (slander) and is harmful to someone’s reputation. The damages for defamation are dependent upon the economic harm done because of your conduct. For example, if someone lost a lucrative deal because you made a false accusation on your podcast, the other party can get damages that includes the money lost from the deal. So, when editing your podcasts, if you notice something that is unverified and could harm the subject of the statement, try to find some reliable support for the statement. If you cannot verify, refrain from publishing it.
I hope this blog was able to offer some clarification for your podcasting journey. If you have any questions about starting a podcast or any other legal question, feel free to reach out to me via email or phone.