Learning Objectives
- Understanding basic legal issues in podcasting
- Free or low-cost legal podcast music and sound effects
- Understanding Creative Commons licenses and Fair Use
Chapter 11: Avoiding Legal Trouble
Podcasters need to be aware of legal issues – with the biggest red flags concerning the podcast name, interview rights, and the use of music and sound effects. Don’t count on not being sued just because you are the “little guy” or don’t make any money from your podcast.
Unlike commercial broadcasting, podcasters are not regulated by the federal government if they’re not broadcast on radio. However, FCC standards are in force if podcast content does air on public airwaves such as NPR.
The information offered here is general; hire an attorney for legal advice. Creative Commons provides a general roadmap on legal issues for podcasters and there are other free resources online with legal questions podcasters should consider.
Name Protection
Do some research in podcasting apps to ensure no one else is already using the name you’ve chosen and or that it doesn’t violate trademark law.
Oprah Winfrey’s Harpo Inc. settled a lawsuit against a podcast called Oprahdemics, which was forced to stop using the name and brand of the famous talk host, producer, and actress. The chief executive officer of podcast hosting service Simplecast says podcasters should file for trademark protection.
Trademark
Trademark is a word, phrase, symbol, design, or combination that identifies the goods of one party. Examples include the Nike logo or the phrase “Let’s get ready to rumble,” which was actually trademarked in 1992 by a wrestling and boxing announcer who now licenses the phrase to be used in movies, commercials, and video games.
You can search the federal government’s Trademark Electronic Search System system, TESS on your own, but it can be tricky to do so it’s best to hire a trademark attorney. That doesn’t guarantee your work won’t be infringed upon – but when you do register you have a legal presumption of ownership and can use the TM mark.
Attorney Jeanine Percival Wright writes that the show title is most important, but your logo and artwork also need protection.
Do You Need Guest Release?
The podcast community is somewhat split on the issue of whether you need to have guests sign a release form before they appear on your show.
After all, the guest would not have agreed to the interview if they were not willing to make themself available, so it’s not necessary. On the other hand, a guest might come back years after an interview and decide they no longer want their interview to be public.
To protect your show rights you could ask them to sign a release form like this one available for download, or this one for video podcasts.
Buzzfeed’s Q & A Podcast talked with experts at thepodcastlawyer.com about the pros and cons of guest releases.
Another option, perhaps more practical for hobbyist podcasters, is to get an oral agreement. While recording ask verbally for permission to tape the interview, edit and put it online, on social media and for other promotional efforts. And be sure to save that audio!
Copyright Protects Music
Music is a feature of most podcasts but fortunately, there are several free sources for audio. However, keep in mind that just because music websites allow you to listen to audio clips for free doesn’t mean you have the legal right to use the music for free.
If you try to download a sound clip for use without paying, there’s usually a voice embedded in the audio that identifies the audio as belonging to a particular company. Copyright protection means that you cannot use commercial music in a podcast even if it’s a very small amount.
Myths About Using Music
Music and sound effects in podcasts help draw the attention of listeners to an audio-based platform. While there are free and low-cost options available, keep in mind that you must follow legal rules to use them. Because copyright starts from the moment a work is created by someone in a tangible form, there’s no way to avoid this.
You may have heard it’s OK to use music, sound effects, or video for 10 seconds or that it’s permissible because your show doesn’t make any money — but those are myths that can land you in legal trouble. It’s also not legal to use material just because you credit the original artist.
Legal Resources To Use
Creative Commons is the place to find legally licensed music, sound effects, images, and video. The non-profit was created in 2001 to help bridge the gap between technology innovation and copyright laws, which were written long before the digital era.
Creative Commons licenses are offered free to the public. There are more than 1 billion creative works now licensed. Through CC licenses, the artist decides how the creative work may be used and who may use it, if it can be copied, shared, and/or remixed by CC licenses.
Creative Commons Licenses
The creator determines the rules for use and the music, images and video that may be used legally as long as you follow those conditions.
Understanding How Licensing Works
When you find the music you’d like to use through CC, look into the rules because there may be one or more criteria to meet. It can be as simple as giving attribution to the creator and/or not using the work for commercial purposes.
Creative Commons Licensing
The use of royalty-free music is a type of licensing you pay for once and have lifetime use. Other sites allow creators to use music for free in exchange for credit.
In Creative Commons, licenses go to creators so they can give public permission to use their creative work under U.S. copyright law. There are four CC licensing types.
- Attribution {free to copy, redistribute and adapt; remix and transform with appropriate credit}
- ShareAlike {distribute your contributions under the same license as the original if you remix, transform or build upon the material}
- Non Commercial {Can’t use the material for commercial purposes}
- Non Derivatives {You may not distribute the modified material if you mix, transform, or build upon the material.}
How To Search Creative Commons
To search CC, use the platforms for music. Here are some best practices on how to attribute works under a Creative Commons license that uses the acronym TASL (title, author, source, license). Look carefully among the choices below for free or low-cost music. In addition, several podcast host services offer free music for their clients.
Free & Paid Music Resources
Music Resources
- Creative Commons should be a first stop for podcasters looking for free audio, music, photos, and video that is legally licensed.
- Pixabay.com has royalty-free stock music (also images and video), with no artist credit or fee required as it operates under the Pixabay License, which allows for free and unlimited use.
- YouTube Music Library offers a huge selection of royalty-free music for free use organized by genre, mood, instrument, and duration. The license type is listed next to each song so look whether it requires attribution of the musician.
- Free Music Archive has free high-quality songs for podcasts; requires credit and permission to use is granted on an invitation basis under CC.
- Incompetech has free music as long as credit is given, with attribution in your show notes. Or, you can buy a track for a low, one-off fee.
- Musopen is a non-profit offering classical music tracks in the public domain aimed at educational use but can be used in podcasts.
- GarageBand, which comes with every Mac, offers some musical loops.
- CCMixter.org has musicians from around the world.
- Chillhop.com allows creators to use tracks from their albums in their own not-for-profit work (with credit given appropriately).
- Danosongs provides free podcast music funded on a donation model; download for free and if you publish it’s $10 for one royalty-free song, do not have to credit; a $50 donation can get you a license to use all current and future songs; includes electronic, cinematic, acoustic, piano.
- Internet Archive is a non-profit library of music, movies, software, websites, and books mostly for researchers, historians, scholars, print-disabled, and the general public.
- Mobygratis is a resource for students, nonprofits, and independent filmmakers in need of free music. You must apply for use; it can take 24 hours to approve.
- Purple Planet Music provides downloadable tracks by clicking on the tab; must give credit.
- 909 Music on Soundcloud has royalty-free music with more contemporary music, no attribution is needed.
- Videvo.net offers some free royalty-free music and sound effects as well as paid service.
PAID SERVICES: Audiojungle; Audiomicro; Getty Music; Jamendo; MusicBakery; Pond5; Premium Beat; Stockmusiccom; Soundstripe; NEOsounds, Other subscription services.
PREMIUM Resources: There are a variety of services that charge by the month ranging from $7 to $40 a month. Artlist.io Epidemic Sound; Soundstripe; SnapMuse.
Boom Library provides professional-quality sounds so expect to pay if you want to create a soundbed of chickens; Ghosthack.de is a place for horror, spooky sound.
Sound Effects & Sound Libraries
Sound effect and sound library sites provide audio clips just as music sites provide music and usually require permission to use. To stay within the law, use royalty-free sites and follow the rules for use.
Free and Paid Sound Libraries
- BBC Sound Effects will allow students, teachers, and researchers use for non-commercial services.
- Free Sound is licensed under Creative Commons.
- Soundbible has a library of free sound effects.
- Soundly has free and paid resources.
- Videvo.net has free and paid sound effects.
- ZapSplat.com has free and paid sound effects.
- Paid resources: Sound Dogs, Soundsnap, other subscription services.
Buy Directly From the Musician
Some up-and-coming musicians could create an original jingle for you or you might have a talented friend who could create music. However, the agreement should be for what’s known as a “work for hire’” so the music copyright belongs to the podcast and not the musician.
The reality is that you can’t use the creative work of someone else without their permission. When you create music, sound effects, take a photo or shoot a video, you have created an artistic work that’s automatically copyrighted to you. There’s no need to register it with any government office. Those rights last for your lifetime plus 70 years beyond. However, you still need to pay attention to issues such as music and publicity rights, fair use, and avoid copyright infringement and defamation.
What is Fair Use?
Stay clear from using music created by popular stars because such use violates the copyright. However, if your podcast is about the work of an artist, the concept of fair use might come into play. Be careful, however, because this can be a tricky area.
In general, fair use allows the use of copyright-protected works under circumstances such as commentary, criticism, parody, news reporting, research, teaching and scholarship.
For guidance, The Center for Media and Social Impact at The American University School of Communication has done a series of comprehensive studies on fair use, free speech, and intellectual property.
Interview Rights
Generally, podcasts that air stories about public figures or those thrown into the public spotlight are protected by the First Amendment. But it can be a different matter when it comes to private individuals.
A lawsuit involving publicity rights for the Peabody Award-winning S-Town podcast has been settled, but attorney David Oxenford recommends getting a release from those interviewed to lessen liability. In this case, the allegation was over violating a dead man’s likeness and Alabama’s right of publicity law.
Legal Recordings
Recording phone calls legally for use in a podcast is a matter of federal and state law. A state with a one-party consent law means you can record as long as you are a party to the conversation. All party consent states require consent from all parties. It can get a bit tricky, so check your state or local laws.
The Digital Media Law Project has a helpful list of state laws regarding wiretapping-related statutes. The rules for international phone recording vary across nations.
Ethically, journalists make sure that subjects know they’re being recorded. The only exception to this professional practice is when reporters have made other exhaustive efforts to gain the information, when the information gained would be of “vital public interest” and when journalists have conducted “meaningful decision-making on ethical and legal issues.”
Professional journalism organizations such as the Radio-Television Digital News Association (RTDNA) and the Society of Professional Journalists (SPJ) have ethics codes to address such issues.
Get Verbal Or Written Consent
While guests voluntarily participate in podcasts, you should protect yourself by obtaining either oral or written permission. Be straightforward when asking a guest to consent to an interview, telling them their comments will be taped, perhaps edited for time and clarity, and then used on your podcast.
Also, be sure to have a clear understanding of the need for publicity. Inform the guest that you want to use their name, image and/or voice to publicize the podcast on social media or elsewhere. There are basically two ways to deal with this – informal (verbal permission) and formal (legal). A verbal agreement should suffice for most podcasters starting out. That verbal permission is valuable, especially if the audio is still recording – be sure to save it.
The Podcast Host offers a guest release form or you may find others online.
Access For Deaf And Hearing-Impaired
As the world’s dependency on digital media increases, web accessibility is a growing issue. The World Health Organization estimates that 2.5 billion people will have some hearing loss by 2050. In the U.S. one-in-eight people have hearing loss in both ears.
In December 2021 accessibility lawsuits were launched against SiriusXM, Stitcher, and Pandora for not prioritizing transcripts on their podcast networks. The National Association of the Deaf (NAD) and Disability Rights Advocates (DRA) say that because the content is not accessible to Americans who are deaf and hearing impaired, the companies are in violation of the Americans with Disabilities Act (ADA).
In addition, a class-action lawsuit has been filed against Gimlet Media, owned by streaming giant Spotify, for not providing closed captioning. These subtitles are “produced from a transcript of a show, timed to display alongside the video,” according to Podnews Editor, James Cridland. The area is a bit murky because the courts have not settled how the ADA applies to the web.
Meantime, Spotify says it will auto-transcribe certain exclusive and original shows and will make visual changes to its app to make it easier for those with low vision to navigate.
But the legal issue aside, it’s the right thing to do as well as good policy for expanding your audience to have a podcast website with transcriptions. In addition, any website should comply with global standards for accessibility.
Do You Own Your Podcast?
Everything seems wonderful and simple when you just start creating your podcast. But things can quickly change. One case-in-point is comedian Adam Corrolla, who started a podcast with a friend. The podcast became very successful but the partnership ended and the former friend sued, contending he was the one who came up with the podcast idea. There was an out-of-court settlement with the terms confidential.
