It doesn’t matter whether you’re doing a podcast for fun, you’re doing it to promote your business, or you’re doing it to generate income. You can easily run afoul of the law if you aren’t careful. In this article we’ll detail some of the most pressing legal concerns for newbies and established podcasters alike.
If you’ve ever engaged in any creative pursuit, be it photography, poetry, creative writing or songwriting, you know how hard it is to get the perfect shot, come up with the perfect verse, write a compelling story or award-winning lyrics. Now imagine how angry you would be if someone used your creation without asking your permission, or crediting you for the work. Think how angry you would be if someone used your work without proper compensation.
Intellectual property laws – including copyright, trademark, patents and trade secrets —are designed to prevent the theft or misuse of creative material. Examples of such material are musical compositions/song lyrics, images, logos, slogans, writing, inventions and so on. Intellectual property law even protects inventions and proprietary information, such as formulae.
As a podcaster, you may inadvertently violate these laws by using material that you do not have the right to use. For example, you could get into trouble for using music/lyrics without obtaining a license to do so. You could also run afoul of intellectual property laws by using photographs or written material protected by copyright. This may even happen if the symbols or phrases used in your branding could be confused with existing symbols or phrases associated with another brand. Believe it or not, choosing a podcast name similar to one already in use could also get you into trouble.
Of course, there are legal defenses for alleged infringements of intellectual property laws. Perhaps the best known is fair use, which is legally classified as an affirmative defense to copyright infringement. However, this is not always a viable defense.
Clearly it is important that you talk to a qualified attorney bout all of this before you make a costly mistake. It is just as important to talk to a lawyer about how to protect your own content from unauthorized use.
Disclosures, disclosures, disclosures
We have spent considerable time in past articles discussing the Federal Trade Commission (FTC) disclosure rules for social media influencers. The same rules may apply to you.
- As a podcaster you must let your audience/followers know (in no uncertain terms) that you have a relationship any brands you are promoting, if you are using your podcast to promote certain products.
- Whatever you do, do not conceal that you are working with a brand or being sponsored to feature a product.
- If you are featuring specific brands on your podcast do not say you bought them yourself if you received them from the brand.
- You must let your audience/followers know about any connections to a brand you are endorsing that could influence your opinion.
- Follow all FTC rules and guidelines pertaining to the placement and format of all audio, video and written disclosures.
Failure to comply may result in FTC fines or other penalties, so it is critical that you consult an attorney about your particular obligations pertaining to disclosures.
The importance of obtaining consent and using release forms
Lastly, you may not be aware of the legal nuances associated with having guests on your show. Specifically, you may not know about the importance of getting permission to use your guest’s picture, or other material for promotional purposes.
For example, a guest may agree to let you use a headshot to promote his or her appearance on your podcast, but he or she may not want you to use it in ongoing promotions of your show. He or she may also feel strongly about the ongoing promotional use of audio or video clips from his or her appearance on the show.
Provision of a written consent or release form would allow him or her to agree to one-time or limited use, but refuse ongoing use. That in turn could limit the potential for ugly misunderstandings, disagreements or even litigation.
In this day and age, you can always find templates for these forms online. If you’re not sure which one to use, or you would rather have a lawyer draft language for you, we’re happy to help. We’re also happy to answer any questions or address any concerns.
You can reach the legal team here at LawPLA by filling out the form on our contact page, or giving us a call to arrange a free consultation.