- Thinking about starting a podcast,
but worried about the legal stuff that comes along with it?
Well, then stay tuned
'cause I'm gonna tell you about four legal things
that you need to know before you start a podcast.
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Hi everyone!
I'm attorney Aiden Durham with 180 Law Co. in Colorado.
And welcome back to All Up In Yo' Business.
Podcasts are huge right now.
I don't know about you guys.
But to me,
it seems like everybody has a podcast,
which is a great thing
because podcast can be available for anyone
and anyone can make a podcast.
So if you're thinking about starting a podcast soon,
there are few things that you want to keep in mind.
And I'm gonna tell you about what those are.
But before we get into it,
don't forget to like, subscribe and share
and check the description for links
to additional information and resources.
All right.
So the first legal thing that you need to think about
before you start a podcast is trademarks,
the name of your podcast.
Just like if we're starting a business,
one of the most important things about podcast is the name.
This is what's gonna get people to notice it.
We'll get to get people to click it
and listen to your episodes is gonna be a name
that people will want to be interested in
and want to watch or listen to.
And the name of a podcast is considered a trademark.
So just like when we're starting a business,
the first thing we want to do
is make sure this name is available.
'Cause what might happen if you don't do your due diligence,
if you don't check to make sure the name's available,
you launch your podcast.
Maybe it's super successful.
Everyone's listening to it.
Everyone's loving it.
And then a little cease and desist letter
comes a knock in saying,
"Hey, I've already been using this name for my podcast.
"It's my trademark.
"You need to cut it out."
And now, your popular podcast,
you might have to go back to the drawing board
and completely rebrand.
That could affect your subscribers
or listeners become a whole big mess.
So of course,
we wanna jump on Google and on iTunes
or whatever podcast platform you're using.
Search other podcast in the internet
to see if someone's using the same name
that you're thinking about using or something similar to it.
'Cause we don't need to be focused
just about identical names.
Even if there's another podcast out there
that has a kind of similar name,
you still want to avoid using something
that's too similar to an existing podcast.
It's also a good idea
to search the USPTO's records with TESS,
their T-E-S-S,
the Trademark Electronic Search System.
You can search for pending or registered trademarks
that, again, are either identical or similar to the name
that you wanna use for your podcast.
But even if someone doesn't have a registered trademark,
they could still have some trademark rights in that name.
So outside of the USPTO, of course,
making sure just there's nobody else already using a name
similar to the name that you wanna use for your podcast.
Might also be a good idea
to think about registering the name of your podcast.
Once you've decided on a name,
you know it's available.
Registering the podcast name with the USPTO
is gonna help make sure nobody else starts a podcast
with that name or a similar name.
Again, you have these rights without registration.
But if you do find a podcast with the same name,
having a registered trademark with the USPTO
is gonna make it a lot easier to get those podcasts removed.
Platforms like iTunes and Spotify,
they have a process
for handling intellectual property issues.
If you're able to submit proof
that you have a registered trademark for a podcast name,
that's gonna make it a lot easier to get those platforms
to take down that content.
So number one legal issue we wanna be aware of?
Trademarks.
Number two, copyrights.
If you're gonna be using music
in the intro for your podcast
or playing music in your podcast
or photos for your podcast cover or the show notes,
Any music or photos that you might use in your podcast
or in connection with your podcast,
we wanna make sure you've got the proper license
to use it.
It doesn't matter if you only use three seconds of the song,
a second of the song.
It doesn't matter if you're only using this photo
in one instance.
One instance of copyright infringement
is one instance of copyright infringement.
And there are no rules that say you are allowed
to use a certain time limit of a song
without copyright issues.
You need a license.
You need proper authorization to use music
or photos in your podcast
or in connection with your podcast.
Now, you might be thinking,
"Aiden, what about fair use?
"Can I use some copyrighted materials
"under fair use without any issue?"
Yeah, kind of,
sometimes.
But fair use is very tricky.
We don't always know exactly what fair use means.
I mean, we know what it means.
But we don't know exactly all the time this is fair use,
this isn't fair use.
So you might use a clip of music in your podcast thinking
that it's fair use.
But if the owner of that song doesn't think it's fair use,
they can still try to take some action against you.
Get your podcasts removed
or whatever other rights they might have.
And it's only once that happens that you can say fair use
because fair use is a defense to copyright infringement.
All right.
So we've got trademarks.
We've got copyrights.
And now, we've got contracts.
The next thing you wanna keep in mind
when you're launching a podcast
is some of the important contracts
that you're gonna wanna have ready.
A few of the primary ones that will apply to podcasters.
Number one, if you've got a co-host.
Have some kind of co-host agreement
or partnership agreement.
This agreement should spell out, of course,
how are we gonna make money from this podcast?
Who's making how much
if we start generating profit from it?
But more importantly,
who owns this content?
What happens if our co-hosts split ways
or they don't get along anymore?
Who owns the podcast content?
Can one of them continue on producing the podcast?
Can they skip using the podcast name?
All of these issues should be spelled out in an agreement
with any of your podcast co-hosts.
And same goes for guests
that you might have on your podcast.
If you're gonna have guests,
other people coming into appear on your podcast,
we wanna have a contract with them too.
Now, these things don't need to be super detailed.
Doesn't need to be a 20 page contract.
It can be a relatively simple document.
But a few of the things
that we wanna make sure are addressed
in these podcast guest agreements are:
Number one, our ability to use their name,
photo, biographical information.
Pretty much however we want to to market the podcast.
This is gonna ensure that later on,
if we post something on social media,
talking about the episode with this guest
and we use their photo in that post,
it's gonna ensure that that guest can't later say,
"I didn't give you permission to use this photo."
Or "I didn't give you permission
"to market your podcast on this platform."
A good agreement with your podcast guest
is gonna make sure that you can market and distribute
and use your podcast however you want.
And that in doing so,
you're permitted to use their name, photo,
likeness in connection with that podcast.
It's also gonna help make sure you own,
you retain ownership of that episode.
In theory, a podcast guest can have some copyright interest
in that episode because it's a creative work.
It's eligible for copyright protection.
And as a guest,
I am contributing to its creation.
I am kind of a co-author of this podcast.
But that means they have some ownership in that episode.
And typically, we don't want that.
So a guest agreement should spell out,
"I, as the podcast,
"creator or producer own the intellectual property rights
"and copyrights in the content that we create with you.
"And you as the guest, have no interest in that.
"You don't have interest in continuing profit,
"whatever the case may be."
Spell all that out in your guest agreement.
And the last kind of contract
we're gonna wanna make sure we have
has to do with our advertisers or sponsors.
So if you're one of the lucky podcasters
who gets some advertising deal,
you get to start actually making money
and earning a profit from your podcast.
You're gonna be engaging with other brands,
other companies to advertise
or help promote their products or services.
And in this deal,
we definitely wanna make sure we have a contract.
So we know, of course,
number one, how much are you making off of the deal?
What are the circumstances surrounding payment
of that income to you?
And what is the sponsor
or the advertising affiliate partner going to expect
in exchange for that?
I don't know.
How many times do we have to mention the product
or service in the podcast?
Are there things that we can or can't say in there?
Can we use this company's logo
when we're promoting the podcast?
All of these issues should be spelled out in that contract.
And finally,
the last legal issue that we need to keep in mind
as podcasters has to do again
with these sponsorships or advertising deals.
Making sure we give proper disclosures
and disclaimers anytime we're promoting
or advertising somebody else's business.
Under the rules of the FTC,
the Federal Trade Commission,
we are required to disclose
if we are receiving any money,
any kind of benefit in exchange for talking about
or advertising somebody else's products or services.
So this means, of course,
if we're getting paid for it,
but also if we're just receiving something in exchange.
So if a company's sending you their product for free
and in exchange,
they want you to promote it on your podcast.
That needs to be disclosed in either in the podcast itself.
A lot of times you hear,
we wanna thank our sponsors
or our partners for this episode
or this episode is brought to you
by our partners and our affiliates,
or you can disclose it in your show notes
or in your podcast notes something like,
these are advertisements
or these are our affiliate sponsors.
One way or another,
the important thing is that we're letting our listeners know
that we're getting something in exchange
for this advertisement.
And please don't make any false claims.
Don't say that you love a product
if you've never actually used it.
Because just like with disclosures,
the FTC also requires that any advertisements
be truthful and not misleading.
And if we're saying,
"This is the best--"
I don't know.
"Dog grooming brush I've ever used."
Rocky's sitting right there
and I have to give him back later.
So I was thinking about dog grooming.
But we can't say,
"This is the best dog grooming brush I've ever used."
If you've never actually used that dog grooming brush.
If you've never even held it in your hands,
that's not a truthful advertisement.
You're--
I mean, blatantly lying to people.
You can still tell them about the benefits
of the dog grooming brush.
You can read whatever copy the dog grooming brush
wants you to read.
But you shouldn't say that you've used the product,
that you've had experience with a product or a service
if you haven't actually done so.
So of course,
these things don't apply exactly the same to all podcast.
If you're not gonna have a co-host,
then you don't need to worry about a co-host agreement.
If you're never gonna have guest on your podcast,
then you don't need to worry about a guest agreement.
But these are things
that you wanna make sure you keep in mind
as you're developing your concept for your podcast
and as you start launching and putting it out there.
So again,
making sure your trademark for your podcast name
is available for you and registering it
if you wanna be able to easily protect your podcast name.
Being sure we're not infringing
on anybody else's copyrights when we use music or photos
in connection with our podcast.
Making sure we have contracts in place with our co-host,
guest, sponsorship partners, podcasts producers.
Anyone who has their hands in the podcast pot,
we wanna have something in writing
that describes that relationship.
And finally,
making sure we are abiding by any FTC disclosure rules
or truthfulness in advertising rules
when we're working with podcast sponsors
or advertising partners.
If you're launching a podcast
or if you already have a podcast
and are concerned about these legal issues,
it's always best to consult with an experienced attorney
who's licensed in your state
for specific advice and assistance.
That's all for this episode, folks.
Drop a comment below.
Let me know what you think.
And again, don't forget to check the description for links
to additional information and resources.
If you guys want,
comment.
If you guys want to know my favorite podcast,
I will include a list of those.
I don't know if anybody cares.
I get a lot of people who ask me
what are my favorite legal podcast or business podcast?
What do I listen to
to learn more about legal stuff or business stuff?
Frankly, I don't.
I listen to comedy podcast
and podcasts about like,
health and stuff.
I don't listen to anything that has to do
with being a lawyer or business, really,
which some people find odd.
But I think about that stuff all day long,
I deal with legal and business issues.
And so when I'm listening to a podcast,
the last thing I wanna do
is keep thinking about work stuff.
But I don't know.
If you guys care,
let me know in the comments
and I'll let you guys know my favorite podcast.
You might change your opinion about me after that.
Thank you all so much for watching.
I'm Aiden Durham,
and I'll see you next time.
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