Day 12 is a guest post by Gordon Firemark. Questions? Let him know – @gfiremark. Also check out his book – The Podcast, Blog & New Media Producer’s Legal Survival Guide
As an entertainment and media lawyer, I’m regularly approached by bloggers, podcasters, and new media producers with questions about “how to do it legally”. Fortunately, the rules are pretty clear, and they’ve been around since “new” media meant radio and then television. Here are a few guidelines to help keep you on the straight and narrow.
1. Start with the premise that media is media.
Communications media may change, but the basic rules, and the rights and obligations of those involved don’t. The rules for a podcaster are fundamentally the same as for a radio host, television producer, or newspaper columnist. The difference is, most podcasters are operating on a shoestring budget, and without the benefit of a legal or business-affairs department to keep them out of trouble. If you adopt a professional attitude, and think about the rights and feelings of others, you’ll likely anticipate most of the issues that can arise, and if you follow guideline number 7 below, you’ll probably avoid any problems that could come up.
2. Understand Copyright Law.
Copyright is a “bundle of rights” belonging to the “author” of a work of expression. This bundle includes the rights to copy, distribute, display, perform, and make derivatives works based on the underlying work. Protection exists from the moment the work is created, whether or not the author does anything to register the copyright, and whether or not there’s any copyright notice affixed to the work.
Anyone who uses a copyrighted work (such as a song, photograph, poem, film or audio clip, etc.) without the permission of the copyright owner is engaged in copyright infringement.
3. Don’t rely on “Fair Use”
“Fair Use” is one of the few defenses to claims of copyright infringement under U.S. law. The defense is based on the First Amendment’s guarantee of freedom of speech and of the press. But these guarantees aren’t absolute. The determination of whether a use of a copyrighted work is fair is one that’s ultimately made by a judge or jury, after weighing a complicated set of four factors, specifically: (a) the nature of the original work, (b) the nature and purpose of the alleged infringing work, © the amount of the original taken, and (d) the impact of the alleged infringement on the market for the original.
Ultimately, though, none of these factors is determinative, and the results can often be surprising. Also, since “Fair Use” is a defense, the discussion typically only occurs after a lawsuit has been filed, and the defendant has been forced to retain a lawyer.
4. Get the required permission
If you’re using someone else’s stuff. Get permission. This applies to music, sound effects, images, or even the sound of someone’s voice.
That’s right… if you’re interviewing someone, or have a co-host or guests on your show, you need their consent to use their voice(s) and performance(s). Even though it may seem to be “implied”, disputes often arise later about the scope of the implied permission. For example, if I agree to be a guest on your podcast episode, does that also imply that you can later edit my appearance into a commercial product, such as a training video, or to transcribe my words and use them in a book you compile? Probably not, unless you…
5. Get it in writing
As with everything legal, the best defense to unwarranted claims is to have a written consent, agreement, permission or release for everything. You’ll certainly want to have a clear paper trail with any co hosts, so ownership of the show is clearly defined. Deals with advertisers should likewise be memorialized in writing.
This doesn’t mean you have to have a lawyer draw up these releases. In many cases, you can find model release forms, interview consents, etc. on the web, and they’ll do the trick 99% of the time. Another good practice is to record your guests acknowledging that you’re free to use their performances in “any and all media, everywhere, forever.” (or similar language). Keeping that recording on file can prove that they did give consent, if there’s ever a dispute. Of course, if you’re in doubt, a small investment in legal review can save big headaches and fees later on.
6. Get your business in order
If you’re podcasting as a hobby, you may not think you’re “in business”, but if you’ve got even one sponsor, mention a single affiliate link, or display a banner ad on your podcast’s website, you ARE in business. This means you will be subject to taxes and business licensing requirements. You may also find that your homeowner or renter’s insurance won’t cover loss of or damage to your computer or podcasting equipment without a separate business coverage rider or policy.
You may also have reason to be concerned about liability. If you own a home, or have assets in the bank, etc., it’s wise to consider forming a corporation or Limited Liability Company (LLC) to operate the podcast. This will insulate your personal assets from any exposure to liability that arises from the podcast.
7. Be Nice
Don’t tell lies about people. (Libel) Don’t reveal secrets about people (Invasion of Privacy) Don’t say or do things that will hurt others’ feelings (Emotional Distress). Don’t steal content, music, audio clips, etc. (copyright and trademark infringement) Don’t use a person’s name or likeness for commercial purposes without permission (Right of Publicity)
“Do unto others as you would have them do unto you”… this really will help you avoid threats, intimidation, and lawsuits.
8. Pay your bills and taxes.
9. Hire a lawyer.
If you have any doubts about what you’re doing, or need legal advice, just bite the bullet. You’ll probably find that it’s not as costly as you fear, and you’ll sleep much better at night knowing you’ve done things by the book.