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
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.
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 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.
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!
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.