With a podcast, you are generally speaking your own thoughts and expertise, meaning you don't have to worry about legality, right? While your podcast may contain your own thoughts and expertise for the most part, there are still some legality concerns. So, for a few things to remember in order to keep your podcast legal, keep on reading!
You may want to use some outside material in your podcast for your intro or outro, as “bumpers” between segments, or to just add some more interesting material to your podcast. However, there are some things to note regarding the use of material that is not your own.
Using copyrighted material, like music, audio, TV, or film clips, without permission from the copyright owner first is illegal. If you don't get explicit written permission to use the copyrighted material in advance, then you are engaging in copyright infringement. Keep in mind that all original works receive basic copyright protection from the moment they are published, even if the author did not apply for formal copyright protection.
In some instances, Fair Use is applicable, meaning using bits of copyrighted material for educational commentary or for criticism is often allowable. You should never rely on Fair Use though because it is a defense, meaning Fair Use claims can only be used after a lawsuit has been filed. A judge or jury will then determine if the use of copyrighted work is Fair Use by considering the nature of the original work, the nature and purpose of the alleged infringing work, the amount of the original taken, and the impact of the alleged infringement on the market for the original.
So, generally speaking, you should avoid including anyone else's material into your podcast unless you have explicit written permission. You may think that using a line or 2 from a song is Fair Use, but those lines could be considered "substantial" to the work, meaning you are engaging in copyright infringement. Fair Use can be an extremely complicated thing to determine, so be mindful of that when creating your podcast.
Material that you may use on your podcast includes: material in the Public Domain, Royalty-Free music, and Creative Commons music. Even with these types of material, there are still rules that you have to follow, so be mindful of any directions that are given to you when you are looking for material to incorporate into your podcast. To find legal music for your podcast, check out our article here.
Another thing to keep in mind regarding legality is that you should have written contracts with anyone that is ever involved with your podcast, whether that be guests, sponsors, artwork creators, producers, co-hosts, writers, other employees, etc. With everything laid out in contracts, you and everyone you ever work with know exactly what is allowed, expected, owned, and so forth at all times. You should always lay out ownership, rights, and responsibilities with employees as well as with sponsors in contracts. Additionally, you should have guests sign a release that transfers all copyright protection to you and gives you the right to use the content that contains your guest's name, image, or likeness (the right of publicity) however you want in the future.
Without written contracts, you won't have a clear paper trail where everything is distinctly defined. This will then put you in a tough position if there are unwarranted claims against you. The best defense is a clear paper trail, so do yourself a favor and write up contracts for everyone involved with your podcast, no matter how small or big their part may be.
You should also remember that podcasts provide an easy opportunity for defamation. You can be sued if you specifically say something that is false and hurtful about someone else. That's not to say that you cannot do reviews of things on your podcast and share your honest opinion. You just need to be careful that you aren't making negative comments about specific people, spreading false information, or seeking to insult or embarrass anyone.
In the U.S., defamation does not prevent you from sharing an opinion and truth is an absolute defense, but saying something even in the realm of defamation is more trouble than it's really worth. Also, laws regarding defamation vary from country to country, so it is good practice to be truthful and considerate at all times. While it may seem like a minor thing, you should keep it in the back of your mind while creating your podcast to ensure that you don't accidentally put yourself in a bad spot.
Not only do you want to keep your own information confidential, including your personal and podcast brand information, but you also are obligated to keep certain information private depending on confidentiality agreements and ethical rules. You may have confidentiality agreements with guests or employees and/or your profession might have ethical rules limiting your ability to disclose information. Whatever the case may be, you need to be mindful of your obligations to others as well as yourself and keep information confidential when required.
The Federal Trade Commission (FTC) regulates advertising in the U.S., including any form of advertising on podcasts. Sponsorships, testimonials, endorsements, and affiliate deals are all forms of advertising on podcasts. If you receive anything for free or at a discount in exchange for a review or endorsement, you are required by the FTC to disclose that information. More broadly, if there’s a relationship between you and the source of the product, then there’s something you need to disclose. The only instance in which you don't have to disclose anything to your audience is if you bought the product at full price on your own. Your advertisements and disclosures must be easy to understand, clear and conspicuous, and honest.
While these rules for advertising are only for the U.S., these rules also tend to be good rules of thumb to help you remain legal in other countries. Your main concern should be keeping your podcast legal in your own country, but following these rules is also helpful if your podcast is consumed in other countries around the world.
Note that you should always consult with a knowledgeable attorney in any country where you may have questions about the advertising law though.
Finally, you should check that you are not creating a podcast title that already exists. Even if you don't have a registered trademark, trademark protection by use gives you protection via common law. This means that under trademark law, the first person (or company) to use a brand name has the exclusive right to use it and to prevent others from using it in the same field. So, it's best to do your research and ensure you are coming up with a unique title to avoid later losing your podcast brand that you've built.
As you can see, there are still some legal considerations when it comes to podcasting. Even if your podcast only contains material that you own, and not copyrighted material, you still need to be mindful of what you say on your podcast, how you incorporate advertising, as well as how you document the relationships with anyone who is involved with your podcast. So, just keep them in mind to ensure you conduct your business properly and your podcast remains legal! Happy podcasting!
Please note that this is a general informational overview of the legality concerns of podcasting and this is not intended to be legal advice. Please consult with a knowledgeable attorney regarding any legal questions or concerns you may have.
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