Podcasts and the Law
This is the third post in a series about Internet Law. You can find previous posts in the series here.
I listen to podcasts during my commute every day to and from work. A podcast is an audio or video program that is typically provided through an internet subscription service. There are podcasts available on almost every conceivable topic. There is a podcast about creating podcasts. Even President Obama was recently a guest on the popular podcast WTF with Marc Maron.
Since podcasts are hosted in the cloud, and are downloadable on demand, you can listen to them at your convenience. Often times when I find a new show, I’ll go through the back catalog and download dozens of episodes with topics or guests that look interesting.
Here are some of the shows that I listen to regularly and their iTunes subscription links (downloads or streaming versions are also usually available elsewhere on the web):
Startup Podcast – A series about what happens when someone who knows nothing about business starts one and what it’s really like to get a business off the ground.
99% Invisible – A tiny radio show about design, architecture & the 99% invisible activity that shapes our world.
HBR Ideacast – A weekly podcast featuring the leading thinkers in business and management from Harvard Business Review.
The Talk Show with John Gruber – An interview show discussing Apple and technology.
The Tim Ferriss Show – Tim Ferriss is a self-experimenter and bestselling author. In this show, he deconstructs world-class performers from eclectic areas (investing, chess, pro sports, etc.), digging deep to find the tools, tactics, and tricks that listeners can use.
Dan Carlin’s Hardcore History – The unconventional Dan Carlin takes his outside-the-box way of thinking and applies it to the past. Was Alexander the Great as bad a person as Adolf Hitler? What would Apaches with modern weapons be like? Will our modern civilization ever fall like civilizations from past eras?
Lawyerist Podcast – A weekly show about lawyering and law practice.
Are you interested in creating your own podcast? Were you asked to be a guest on a podcast? Just curious about the legal issues surrounding podcasts? Below is a brief summary of some of the important legal issues that podcasters may encounter.
What’s in a name? A trademark is a word, phrase, symbol, design or a combination thereof, that identifies the source of the goods of one party from those of others. When you’re choosing a name for your new podcast, it’s important to recognize the risk of using an existing trademark that gives rise to a “likelihood of confusion” in the eyes of a consumer. For example, it would likely be problematic from a trademark perspective to use the mark “NPR” in the title of a podcast that is not affiliated with National Public Radio in any way.
Generally, use of another’s trademark is allowed without permission if the use is editorial or nominative in nature and as long as the use doesn’t suggest that company endorses the podcast.
For example, let’s say I created a podcast in which I review running shoes, and I name an episode “Nike Free” in which I review the new Nike Free running shoes. So long as I don’t attempt to sell a competing product in the podcast, my use of the trademark “Nike Free” is solely for informational purposes and it doesn’t appear as though Nike has endorsed the podcast, my use of the trademark is permissible. Further, even if I panned the new Nike Frees and said they were terrible (I love them by the way), my use would likely still be allowable as a nominative fair use. Out of an abundance of caution, I would also include a statement in the podcast acknowledging that any trademarks, including Nike Free or any other trademarks mentioned in the podcast are the property of their owners and that I make no claim to those marks as my own.
Noncommercial uses of trademarks are usually the strongest instances in which use of a trademark is allowed without permission, since trademark law prohibits using another’s trademark to sell competing products that would likely be confused with the trademark holder. Since editorial or nominative uses are for informational purposes only and not for commercial gain, use of another’s trademark in these ways is usually permitted.
Copyright issues pop up all the time and in many ways in the creation of podcasts. Copyright law in the United States protects original works of authorship that are fixed in a tangible medium, including written works, video and sound recordings. It protects the expression of an idea, not the idea itself and ownership typically is granted to the author of the work. Copyright owners have exclusive rights to control certain activities related to the work, and others wishing to use the work should obtain the owner’s permission to avoid infringing upon their rights unless an exception to this requirement applies.
There are various exceptions where permission is not required, including “fair use” of the work, certain elements of the work that are not protected by copyright, when the material is already in the public domain, and United States government works. Content subject to a license, such as a Creative Commons license, may also set forth the rights that a copyright owner has reserved and the terms under which another person or entity may use the work.
Right of Publicity
If a podcast conducts guest interviews or has a revolving set of hosts, publicity rights could be implicated. Publicity rights are primarily governed by state law in the United States and generally give individuals the right to control the use of their voice, image or likeness for commercial purposes. In Pennsylvania, “name” or “likeness” includes a person’s name, signature, photograph, image, likeness, voice or a substantially similar imitation of one or more of these. 42 Pa.C.S. Section 8316(e). Therefore, a podcaster should make sure they have the consent of the guest to use that person’s likeness in the podcast, including any advertisements or other endorsements that may be included in the show.
Podcasts are becoming a mainstream form of new media. In addition to the legal issues described above, there are many additional unique issues that could arise, such as contract law issues like advertising agreements with sponsors, joining a podcast network, hosting the audio or video files, and licensing content for replay or use by others.
Thinking about starting a podcast? As with any new venture, it is important to identify the key legal issues and risks that may impact your business with the help of experienced legal counsel.