Marlon Cohen is a senior commercial lawyer specialising in all things content, media and digital-related at law firm RPC. He regularly works on sponsorship and endorsement deals (including recently on sponsorship tie-ups for the 2020 and 2024 Olympics), marketing related agreements (such as media planning & buying, creative and talent agreements), content distribution agreements and production agreements. He takes us through some of the legal issues in podcasting…
Regardless of where you are in the podcast chain, legal issues and contracts are increasingly used to develop and protect podcast content. Although no-one ever wakes up in the morning and thinks “tell me more about contracts!” there are some high-level areas where it may be worth looking at the licence or contract you have in place.
You need licences to use IP
Unless you bank only on the attractiveness of your talents’ voice and persona to fully develop your audience, you are going to have to think about how best to integrate third party audio, visuals, artwork and any other 3rd party intellectual property (IP) into your podcasts. Broadly speaking, licences to use someone else’s IP can either be ‘open source’ or under specific terms from the owner of the IP (or ‘licensor’).
- Open-source licences are usually provided under standard licences released by Creative Commons, and each CC licence sets out the type of use attributed to the relevant IP being licensed. You can generally use open-source IP as long as you comply with the terms of the underlying CC licence.
- 3rd party licences that aren’t open source usually set out the scope of the licence, how and where the IP can be used (e.g. in the UK only or worldwide), the royalties that you have to pay etc. There are some exceptions under copyright law for “fair dealing” of copyright without needing to get licence, but these exceptions tend to be fairly limited. In terms of audio and video content (for example music, audio from TV shows), licensing will usually be managed through rights clearance agencies rather than direct licensing from the composer, producer or broadcaster. If you haven’t obtained the proper clearances, you run the risk of distributors de-listing your podcasts (if the rights haven’t been properly cleared) and potential claims against you from from the relevant licensors (as well as commissioners where you are being commissioned to produce the podcast).
Who owns the intellectual property in the podcast itself
One of the most important issues you should consider when producing the podcast is understanding who owns the copyright (and other IP) in the podcast that you are producing. Where podcasts are commissioned by a 3rd party commissioner, the commissioner will usually want to own all IP rights in the podcast, including rights in any spin-off or “derivative” use (for example, rights to create different language adaptions or TV versions of the podcast). Commissioners will also usually want rights over distribution and monetisation of the content, although some producers and talent may have enough leverage to agree royalties in connection with any monetisation.
Another key issue is around “work-for-hire” or exclusive licence arrangements between the commissioner and talent (actors, writers, graphic designers, directors, producers). These types of arrangements usually clarify that the talent does not retain ownership over the IP that they create as part of the podcast production (whether it’s the actual audio or any scripts, artwork, summaries or any other production material).
Guests and releases
If you have an interview-style podcast, it may make sense that you ask guests to sign a release form before recording an episode. The release form ensures that the producer/commissioner owns all IP in anything that the guest says on the podcast and enables the producer/commissioner to edit and use that guest contribution in whatever way it feels. Releases are also helpful if your guest’s content is likely to be contentious or make your podcast go viral for all the wrong reasons.
Contracts for advertising and sponsorship in podcasts usually centre around three areas: (1) sponsors will look to have control over their brand and make sure you don’t harm their brand (2) any ads or sponsorship during the podcast need to comply with regulatory requirements (3) negotiating the best rates and commercial deal you can for placing ads or sponsorship during your podcasting. As a producer, you will want to ensure that you are not overly restricted from acting for different sponsors, or that brands or advertisers have overstepped the level of editorial control they have over the content of your podcast.
Help with podcast contracts
This is just a whistle-stop tour of some legal considerations podcasters should consider. Whether you’re working independently, looking for advertisers or hoping to get your podcast commissioned, it’s worth thinking about these aspects – and if you’re ever in doubt, you can ask an expert to help you further.