A Presentation on Legal Issues for Podcasters – Who Owns What?
By: David Oxenford, Wilkinson Barker Knauer LLP
On July 25, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.
I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast.
This is a topic that I have discussed before in various presentations about digital media issues for broadcasters (see, for example, the presentations linked to in my articles here and here). But it seems that it is likely to be one that comes up more and more as traditional media companies expand their digital offerings, and employ independent contractors to prepare the new podcast content, or use employees in ways that were not previously part of the scope of their employment. This may become a particular concern if a podcast takes off, and the content becomes valuable. As we wrote here, independent contractors normally own the rights to the content that they create, unless it is specifically assigned in a written agreement to the company that hired them. So if you are using contractors to create podcasts or any other content, make sure that you explicitly get the rights to that content.
Employees, on the other hand, traditionally create content for their employer – particularly where that content is part of the employee’s job description. But, where the content creation is not part of the employee’s job description, things could potentially become murky. Employers are always best advised to make clear with employees, just as they do with any contractor, who owns the content that the employee creates.
We will write more about podcasting legal issues in future posts. Podcast Movement was an exciting conference where there seemed to be much interest in the legal issues about which these creators should be thinking. There is no FCC that establishes a legal framework setting out the restrictions on the podcaster’s operations, so the law needs to be pieced together from general legal principals and those established by other agencies. More to come on these topics in future posts.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.