Perspective: The IP Protection Steps Every Podcaster Should Take
Originally published on Podcast News Daily
Podcasting is a powerful medium for storytelling, entertainment, and journalism, but behind the microphone lies a host of legal considerations. Protecting a podcast’s intellectual property is essential not only for creative control but also for long-term financial value. Understanding copyright, trademark, and right of publicity law is critical to podcast production, as well as protecting, and enhancing a podcast’s financial value.
Copyright: Protecting the Creative Work
Copyright law protects original works of authorship fixed in a tangible medium of expression. Once an episode is recorded and saved, elements such as the recording itself, speaker performances, the script, music, and sound design are all automatically protected by copyright law. Copyright protection gives the owner exclusive rights to reproduce, distribute, and create derivative works, among other rights.
Importantly, copyright does not protect ideas, themes, or formats; it only protects the specific expression of those ideas. Although not required, registering with the U.S. Copyright Office provides significant benefits, such as the ability to sue for infringement, seek greater monetary awards and recover attorneys’ fees. For this reason, registering episodes before public release is strongly recommended.
Unless there is an agreement to the contrary, the person who records a podcast owns the copyright in that recording. If two people record an episode together, they share equal ownership unless they contract otherwise or assign their rights to a third party, such as a production company. If a production company records and edits the show under a work-for-hire arrangement, the production company owns the finished product, unless the host(s) negotiate otherwise. Written agreements are therefore essential for determining ownership of podcast content.
Trademarks: Securing the Brand
Trademark law protects brand identifiers such as names, logos, and slogans that identify the source of a product or service and distinguish it from others. A podcast’s title, logo design, and even distinctive catchphrases may qualify as trademarks. In the U.S., common law trademark rights arise at the moment a mark is used with goods or services in commerce. However, as with copyright, trademark registration gives the owner valuable additional rights and possible remedies in the event of an infringement. Unlike copyright, trademarks do not expire so long as they remain in use, making them especially valuable in branding and merchandising.
Securing a trademark registration for a show’s name and any other branding elements can prevent confusion in the marketplace and block imitators from using similar trademarks in connection with their podcasts.
Right of Publicity: Controlling Your Voice and Persona
The right of publicity is the right to control the commercial use of one’s name, image, likeness (NIL), and other elements of a person’s identity including, in some cases, a person’s well-known voice. Unless a podcaster has a very well-known and distinctive voice (e.g., Bette Midler, Tom Waits), podcasters likely cannot prevent others from sounding like them. However, they can prevent unauthorized commercial exploitation of their voice recordings, name, image. and likeness.
The right of publicity is a personal right, held by the individual and licensable to third parties. Commonly, a host will contractually grant a license to a production or marketing company the right to use their voice or other elements of their NIL, and even to enforce this right against infringers.
Build A Legal Foundation
Podcasting involves copyright, trademark, right of publicity, and contract law. Copyright safeguards the recordings and scripts; trademark protects the show’s brand identity; right of publicity protects the podcaster’s voice and any other elements of NIL; and contract law structures the relationships among the various parties involved. Hosts and co-creators should be proactive in clarifying ownership of recordings, and carefully negotiating arrangements.
Ultimately, the success of a podcast depends not just on the quality of the content but also on the legal foundations that secure its value. By addressing these issues early – ideally before any of the podcasting work begins -- podcasters can avoid costly disputes and focus on building an audience and telling compelling stories.
Elizabeth J. Rest and Owen Seitel are the co-founders of intellectual property law firm Crown LLP. Rest is a brand builder and portfolio protector, focused on trademarks and copyrights, and Seitel has more than 30 years of experience with commercial endeavors, transactions, and disputes involving intellectual property and broader business matters. They can be reached at [email protected] and [email protected].
Read this article published on Podcast News Daily.