Law permeates our society including emerging media and new methods of expression. Often our legal system lags behind technology and creative innovation with courts adapting older legal doctrines to new situations in the absence of legislation. These traditional doctrines frequently include contract law, intellectual property law, and First Amendment law, for example.
In the excitement of innovation, creative individuals may overlook the boring necessity of thoughtfully making business decisions. Podcasting is the specific focus of this brief and incomplete educational comment. Always consult an experienced entertainment law attorney as well as marketing, media, taxation, and financial professionals in specific situations.
It is more difficult than one might suppose to gain attention and followers that convert to influence and economic benefit in this multi-media age when everyone may directly engage in self-publishing. "Fake news" and other outrageous and shocking content are methods that are widely used to gain attention. For this reason, one should think about the potential audience and the goals for your podcasting. How will you know if your podcast has succeeded both in substance and in reaching its target audience?
This list of legal questions is presented in no particular order and is designed to start your thought process. It is not an exclusive list.
1. Is the name of your podcast too similar to a trademarked name so that it may be confused with this possibly more famous source? Have you labeled your podcast in a way that confusion will not be an issue? There are reported court decisions concerning hashtags that were held to infringe trademarks or otherwise confuse consumers as to the origin of goods and services.
2. What persons or entities are connected to you and your podcast and do you have written and signed agreements with them? Written agreements prevent selective memory and the very act of reducing your interaction to writing will cause you to think of potential issues to address.
3. Do your written agreements address such fundamental issues as ownership of content and related intellectual property, reproduction rights, expenses, and division of income. Obviously there may be a very long list of things to consider beyond these basics.
4. If you are working with others, what is the legal nature of this relationship? Are you partners or do you have employees, for example? Are you and others creating a "joint work" that makes you co-owners of the copyright or intellectual property? What uses of this intellectual property may the various parties make and who owns what if you terminate a relationship? Specify this relationship and legal rights by written agreement.
5. Do you understand the legal meaning of a "work made for hire?" In simplified overview, a work for hire transfers intellectual property ownership from an employee to the employer, or under specific circumstances, a transfer of intellectual property may involve certain types of commissioned works. Is your podcast being undertaken at the request of your employer, for example? The legal status of a generic audio podcast as a work for hire is unclear. This is yet another reason to have ownership specified in a written and signed contract.
6. Do you have releases or some form of appearance document that guests or interviewees sign? May you edit, rerun, or use their contributions in other contexts? May a guest control how the content is edited, stored, or request a complete take-down or deletion? Obtain experienced legal advice to avoid problems.
How will necessary documents be signed, in person or electronically? Perhaps utilize fax if non-original signatures are binding. While overwhelming contemporary practice and legislation tends to validate copies of signatures, this may not universally be true. For individuals that you interact with remotely, an electronic or digital signature may be appropriate. Most states have enacted the Uniform Electronic Transactions Act and there are several federal statutes. Consider the signature issue as you prepare documents and seek experienced advice. It is virtually useless to prepare a document if it is not validly signed.
7. There are and number of issues related to content and the manner in which it is presented, both in terms of style and the law. Do you consider yourself a "journalist" or simply a private citizen commenting on events? "Citizen journalism" or "street journalism" is a growing area. What will be your relationship to traditional news outlets and journalists? If you are challenged or sued, will the traditional media protect you and/or provide legal assistance?
8. Are you familiar with The Society of Professional Journalists' code of ethics, available online? Even if you do not consider yourself a "journalist," the code provides advice concerning limiting harm to others and showing compassion. This is good food for thought. Adhering to these standards may reduce legal liability.
9. Do you plan to join one or more of the many media organizations or associations? Many have resources, including legal materials, that may be helpful. For example, are you familiar with the legal doctrine of "fair use" and is it applicable to your situation?
10. Consider humor and jokes. Will they be acceptable or offensive to your audience? If particular individuals, products, and services are jokingly mentioned, how will this be received? Are you familiar with the legal standards for trade libel such as slander of title and slander of quality? In a silly example, if you say that a certain brand of hamburger is made with stolen earthworms, will everyone laugh or will a frustrated merchant sue, seeking to "make an example of you?"
11. Religious broadcasters in general enjoy broad First Amendment protections concerning the advocacy and expression of religious beliefs. However, be cautious if engaging in religious fundraising. There is the potential for federal criminal mail fraud and conspiracy charges if one raises money for one stated purpose but utilizes it for another. Religious financial investments may be the subject of fraud investigations.
12. Are you engaging in political commentary? Are you supporting the election of a named individual or engaging in political fundraising? This raises the possibility of required reporting and other regulations beyond the scope of this brief comment. Seek professional advice.
13. Do you understand the legal standards that control defamation of a "public figure" (actual malice) and the standard for others (negligence)? Additionally, do you understand legal standards related to invasion of privacy, publicity rights, or trade secrets?
As a generalization, the limited number of cases addressing new media issues have provided broad First Amendment protections. However, traditional jurisdictional standards making non-residents subject to a state court's jurisdiction ("long-arm" jurisdiction) are applicable to new media, especially if the content targets residents of the state (such as a greeting, "a shout-out to our friends in ...") that may meet a "minimum contacts" requirement.
The threat of a costly and extended lawsuit, even if winnable, is best avoided. The legal standards may vary somewhat from state-to-state.
14. Is your podcast accessible in any nation? If so, the impact of global legal rules becomes an issue. Celebrities suing U.S. tabloids that are published or sold in foreign nations have engaged in what is termed "libel tourism" to obtain judgments abroad in more plaintiff friendly nations. Potentially a podcaster may face a similar threat. In the past decade, the federal Congress and several states have enacted legislation barring U.S. courts from enforcing libel tourism judgments if the speech would not be libelous under U.S. law. However, the law is not firmly settled, especially in the many states that do not have such legislation. Again, experienced legal advice is desirable.
15. Will your podcast attract advertisers, sponsorships, underwriters, or have direct sales? Have such agreements been professionally reviewed? Be familiar with the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising and other related advertising regulations. They are available online. Are you advocating certain investments or providing financial advice? Be cautious.
16. If you are including music in the podcast, do you have the appropriate permissions and licenses? Music intellectual property is a complex topic beyond the scope of this brief comment. Frequently music has both a song copyright and a distinctive recording copyright. A podcaster may need a public performance license (to stream music) and a mechanical license (if the podcast may be downloaded).
Perhaps music may be obtained from a music stock library that has secured the necessary licenses or perhaps the podcaster might create original music. Be certain in advance that you are protected with licenses and/or recording contracts.
17. May podcasts be sold or mortgaged? Yes, if a buyer or lender finds them to be a valuable asset. It is important to conduct due diligence to determine if preexisting agreements limit the assignment or transfer or rights. Selling intellectual property requires a contract. In offering intellectual property as collateral for a loan, a "security agreement" would be recorded at the state Secretary of State's office and the United States Patent and Trademark Office.
18. Are there federal, state, and local taxes to be paid? Do you have employees or are you selling goods and services, for example? Is there a potential occupational tax or license fee to be paid? Consult a tax professional.
19. Do you need some form of liability insurance? What types of insurance are available? What will it cost? What deductibles, coverage, and exclusions does it contain? For example, filmmakers frequently purchase Producers Errors and Omissions Insurance or some variation of Multimedia Risk insurance. Consult an insurance professional.
20. Failing to recognize the need for careful thought and advance planning is a trap. It is easy to dismiss concerns as "negative thinking" with the thought that "it will never happen." However, addressing a situation after it has occurred, rather than before, is always difficult.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult experienced legal and financial professionals in specific situations.
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