There’s a persistent myth in the podcasting world that you can use a little bit of someone else’s content without facing any potential legal consequences whatsoever. Maybe 45 seconds of a really popular song or a clip from a TV show that perfectly demonstrates what you’re talking about. It’s not true.
There are protections for other people’s content in place, just like there are for yours. And of course, that doesn’t mean that you can never use other people’s content. It just has to be transformative, which is a whole other kettle of fish on its own, and altogether, it’s really a complicated issue filled with nuance and can potentially be pretty high stakes.
While figuring out all of this copyright, fair use, and intellectual property stuff alone is totally possible…
Most of the information is available out there on the Internet, on government websites, and in books, and it’s especially accessible if you have some experience with legal terminology. But that can be time-consuming, and honestly, who has a whole week to become an armchair intellectual property expert when you’ve got the new Stephen King sitting on your coffee table waiting to be enjoyed?
No, it’s better to get information straight from a reliable source, and on this episode, we’ve got a bona fide trademark and copyright nerd joining us to shed a little light on the subject.
Erin Ogden is an attorney at the law firm Ogden Glazer + Schaefer. Whether she’s helping clients directly or working with other attorneys to help their clients, she helps identify, protect, and monetize intellectual property while looking at the business holistically, which is exactly what we’re looking for today.
So if you’re ready for a lot of extremely valuable information critical to the long term success of your company’s podcast, listen to the episode below, or continue reading the blog post!
Tune in to the full episode to get answers to these questions:
- What is fair use?
- Do I need a trademark? When should I apply for one?
- What if somebody steals my content?
- Should I make my guests sign a release form?
- Can I create my own agreements? Or do I need a lawyer to do it for me?
Don’t forget to join us for our free monthly strategy calls on the third Thursday of every month!
Understanding Intellectual Property in Podcasting: Trademarks and Copyrights
Erin Ogden:
“First thing, intellectual property is an umbrella term. It’s two really good scrabble words, meaning all the stuff that gives your company or your podcast value that you can’t touch but you can replicate.
For example, a trademark is, again, the fancy [term]; it’s indication of source. It’s the thing that helps people find you again and again, and refer you, and make sure the people that referred you find you. So that can be a name, that can be a logo, can be a color.
So you see pink insulation; that means Owens Corning. You see a brown delivery van pull up in front of you; that means ups. Even if it doesn’t have the signal on it, you usually have a pretty good idea of who it is.
And so podcasters can very much have that trademark because they have, hopefully, a clever name. Some people just use their personal name; that’s fine, but it can cause some problems down the line if they ever want to leave the podcast, but the podcast wants to keep going.
Copyright is the expression of an idea. Now, this is all the content that you’re producing falls under that copyright. It’s a creative expression of an idea. And so all of the conversations that you’re having, all of the, if you are doing a podcast that’s actually kind of like a serial show or some of those fun comics that are playing like several different roles, like the generations or things like that, that’s all content, that’s all copyright—the write-up that you might have.
And so that’s all copyright. If you have materials that you send out, because this is a thing that’s part of your sales funnel, that material might be copyrighted because it’s your creative expression of those ideas.
That’s not the facts themselves, the way that you express it is copyright. So those are the big ones. There are also patents, trade secrets, and things like that, but really, in the podcast world, we’re talking trademark and copyright.”
Recap:
Your trademark is going to be the way your brand looks, and that is what makes you different and recognizable.
And then intellectual property is basically anything that you create that is developed by your company and the creative expression of the things that you create, that you’ve developed, or something that you can have copyright on.
We’ve got these things for our own podcast. Everyone else has them for their own podcasts as well.
Navigating Trademarks and Copyrights in Podcasting
Erin Ogden: “First, let’s talk about trademark. Trademark is how they find you. So you don’t want to be confusingly similar to somebody else’s podcast name or other products services in that field.
Surprisingly enough, that is the standard we use for copyright infringement. So if someone is going to google your name and it comes up with five things, and people are like, Oh, which one am I looking for?, or they google it, and it so happens to get really close to a big fancy one that you’re trying to steal their license, that’s a bad thing. That’s called infringement.
One thing you want to do is have that name that is original and can help you stand out amongst the billions that are out there.
So essentially, when you Google, Bing, whatever search engine you use, you are the one who pops up. YouTube is one of the top search engines, so think about what they’re googling. And then often, even with the logo when it pops up, what are they seeing? Make sure that’s not confusingly similar.
This can be a time where you can use your creativity. This is where you can be more than just legal minded. Like, everybody has a dollar sign. Okay, maybe you don’t. Or maybe your dollar sign, is something else that allows people to really latch onto it, is a stronger trademark. It’s going to bring you more value because once they see it, they know it.
Now, a lot of people are like, well, I just want them to know it immediately. Well. But then they’re always having to sort you out amongst the 50 other dollar signs.
Now, if you have something unique, they might need to learn that unique thing is attached to you. But once they learn it, it’s there.
And dollar sign is not unique in finance, but maybe dollar sign is really unique in yoga if you are doing something like that, where it’s a different field.
Copyright stuff. So a lot of times when people are producing content, the questions are, what can I use? Can I use other people’s stuff? How can I use that? And knowing what your boundaries are.
So first of all, if it’s independently created by you, you can use it. If it’s not created by you, there’s a pretty good chance you can’t. So first get permission.
A lot of people like to fall on, they’ll see the word fair use like a thousand times and everyone will parade it out, Oh, it’s fair use.
And nobody knows what fair use actually is. Or they use it kind of half or, my favorite question is, But how much can I use? Can I use like 5%, 10%?”
Debunking the Myth: Fair Use and Intellectual Property in Podcasting
Erin Ogden: “So, what fair use is and what there are things you can use is if you are using it in a specific way that you’re not trying to essentially get glom onto their intellectual property, their rights to it.
Let’s pretend you’re doing a podcast about song construction. You can play the whole song. If you’re talking about, Oh, do you see how they use this bridge here? Do you see how they bring in strings here?—and it’s that construction and critique of it.
If you’re doing a critique of a movie and you’re showing scenes of like, that could be because you’re showing that critique, that’s fair use. Now, if I’m using that same song as my intro, even if it’s only 15 seconds, I’m trying to use their creative expression for my benefit, for my good.
One example that was a court case, was a magazine. I forget if it was Time or Life. Took just a small percentage of a book that Gerald Ford wrote. It was a giant, like, huge, you know, hold down, prove gravity kind of thing. And they just took a tiny bit of it, but they took the tiny bit talking about Nixon and taking over for, you know, the whole reason why anyone would buy the book. Nobody was actually caring about his collegiate career.
So they took the kind of the heart of it, and now people aren’t going to buy the book. They’re going to buy the magazine because they got the cliff notes of it.
Or if you really want to age yourself, sampling of music. It’s a very short part of Under Pressure, but it was instantly recognizable, so Vanilla Ice got in trouble, even though he tried to say, there’s an extra note, everybody knew what it was
And so it wasn’t a percentage. It’s more, why are you using it? How are you using it? And is it kind of the part that makes it the creative expression of it? Is it the hook? Is it the reason why people would pay the original content creator for it?
Just like, if you’re a podcaster and someone starts taking your stuff, would you be like:
Hey, I did all the work for that. I’m the one who thought that all out. I’m the one who figured it all out. I’m the one who recorded it and had to pay for the editing. And now you’re just taking it.
You’d be mad. So don’t do that to other people.”
Collaborative Approach to Intellectual Property in Podcasting
It can get a little complicated too, because I think everyone, when they’re thinking about using things, it feels like: This must be a transformative thing that I’m doing because I’m putting it into this new context.
And I think it doesn’t very often come up in intro music and sampling, say, a few seconds of, 9 to 5 by Dolly Parton**, w**e want to put that in. It really, I think, does cause a lot of confusion for folks, but I’m kind of hearing, if in doubt, get permission or don’t do it.
Here’s Erin’s thoughts on “transformative”:
“Transformative. Oh, my gosh, if I had a nickel every time, Oh, it’s transformative. I would have enough to afford to do a lawsuit about transformative.
It’s really hard to be truly transformative because otherwise, why are you using it? The one case that was kind of transformative was taking the hook from Pretty Woman ****to Naughty by Nature. And so it almost went against the grain and it was still not right, even though nobody believed Roy Orbison was into it.
Let’s just say if you think it’s transformative, assume you need to talk to a lawyer to make sure, because you are not going to be able to make that determination.
And sometimes when the asking can give you advantages, again, let’s look at the practical nature. How many podcasters are like, Oh, you know what? I don’t want free publicity. I don’t want my stuff to go out to that thing.
Now maybe they’re going to be like, I don’t know, are you going to be mean? Are you going to use my example of why it sucks? Then probably less likely.
But if you’re like, I really want to give an example of why it works well and all of this, then they’re going to be likely excited and might even lead to collaboration. This happens a lot in the beer space. I said we did beer.
Hey, you’re using my trademark. Let’s not spend the money fighting about it. Let’s do a collaboration beer. The money we could have spent on lawyers, let’s spend it on marketing, on a collaboration beer.”
Maximizing Reach and Mutual Benefits
It’s easy to feel so territorial about things that you’ve created, but it’s a nice way to think about it, is just approaching it as a collaboration, and how can we both benefit out of this rather than staking our territory so firmly.
As Erin said:
“There’s some really fun ways to look at it, because it’s marketing. It’s how do we get our stuff out there? To the most amount of people that we can help.
So finding ways to do that can be really fun, it could be exciting, it could be different than normal everyday slog.”
When to Consider Protecting Your Podcast with Trademarks and Copyrights
Now, that being said, there are times you want to, of course, protect the things that you’re creating.
Here are Erin’s thoughts on this:
“So famous words from every attorney. It depends. It depends on your goals, really.
That’s my number one thing is what are your goals for this? If your goals are to grow this nationwide and really have a big following, then a federal trademark starts making a lot more sense early on because it clears the way and prevents others from doing stuff that’s confusingly similar to yours and allows it, if you are thinking of selling it later or syndicating it, to have that already in place.
Because filing a trademark isn’t something I can file today and you get tomorrow. It’s at least a year long process, and so thinking ahead, knowing what that plan is can be really important. The more likely you think that people are going to knock off your stuff and the more that it’s going to hurt you if they knock it off.
If you have a really unique coaching strategy, then you might want to protect that a lot more than, you know, legal stuff—a trademark is a trademark as a trademark. You can go to USPTO and they’ll tell you all that stuff. I’m probably going to be less likely to do protection of an explainer, but I might want to protect something that I think, I explain it in a unique way, that if I saw it somewhere without my name, I’d be like, Ooh, that is my voice.
The more likely you’re able to recognize you without it being you, the more likely that’s going to hurt you because they’re trying to steal your thunder.
But if you are a startup podcast, and you’re like, I can either pay for a good editor or I could pay for a trademark, which one’s going to get you to your goal faster. And if it’s a good editor, because then people are actually going to listen, then pay the editor.
It doesn’t really matter what people are listening to because I have some other goofy goal. Okay, then maybe that’s the case.”
Related Video:
Navigating Legal Review and Publication Deadlines in Podcasting
There’s another situation that people find themselves in a lot, or at least in some industries, I find that you find this in legal podcasts, sometimes in finance podcasts, often in health podcasts, is that you’ll have a guest come on the show and then the guest says, Our legal team needs to review this before you publish it.
Here are Erin’s advice for how a podcast host who just wants to hit the publication deadline can deal with it:
“Let’s start with first things first. Know your industry. Is that a common thing? Ask your guest as part of it. If someone says that’s something that’s going to happen or if they don’t know, make them ask. So that way you can get into the schedule. If you had planned that they were going to be next week and that happens, then you need to know that you’re going to slot them for a month from now or whatever and so you can plan your thing better.
So what is going on? It can be a number of things. One, it can just be pure paranoia. We happen, but that paranoia is often like we want to make sure that they aren’t doing something that will get either them or the company in trouble.
Some of those things that might be are they’re telling trade secrets. They’re telling secrets, something that makes it valuable because my company knows it and nobody else does. This can happen a lot in research and development. You don’t want somebody to spill the beans on the new thing coming out.
So you might check to see that if there’s an, Oh, no. You just told them our strategic plan and now all of our competitors are coming after us.
Other things that you might do in financial planners and things like that, they have a lot of regulations about what they can do and how they can market and all that. So they might be checking to make sure that the guest is following those regulations and not accidentally getting caught up in something and going against those very strict communication regulations.
Similarly with legal and medical, that you’re not giving advice that’s either wrong or could be deemed actual legal advice or creating a relationship that you don’t want, or sometimes just like making sure the proper disclaimers are in there.
So those are kind of the main things. There could be other things. They could be making sure that, Are you using the right company name? We just went through a branding change and do you keep referring it to the wrong name? The whole point of today of people going out and why we let you do this is that you were going to plug this new thing. Did you?
Sometimes it’s just as practical as that because it’s really easy to blame legal to do stuff because nobody’s going to be like, No, screw the legal department. I want to get in trouble.
Now sometimes they do. But then you’re going to stop having those kinds of guests real quick, probably.”
Guest Releases: Establishing Clarity and Setting Expectations
Some podcasts choose to have their guests sign a release about the content of the episode, their image, everything like that. Other podcasts don’t.
Here are Erin’s thoughts on this:
“My thoughts are always clear. Expectations are always better than assumptions.
So those releases are like, Hey, this is what I’m going to do, and that’s really important if you’re going to do anything more than I did this and I posted it and that was it. If you are going to start cutting it up into promo bits, if you are going to edit it heavily, more than just dropping out the elms, uhs, and f bombs.
So now all of a sudden you are maybe changing my words. That’s another reason why legal might do it, is like, did you edit it so heavily that I’m no longer saying what I said because of your editing. And the more you promo right now you’re using my likeness to make money for you. Maybe I don’t want that. The more famous I am, the more I want to be in control over my name, image and likeness.
This is college sports all over. There was a huge fight about name, image, likeness, because there is a value there. There’s a right to publicity and there’s a right to privacy. If I’m well known, I have the right to say how my name, image and likeness is publicized. If I’m a private citizen, maybe I don’t want, and this is another reason why you might review., I might not want my private things being put out there on every Instagram post in a five second snippet without context.”
Levels of Formality in Agreements
Erin Ogden:
“It depends on how enforceable you want it to be.
A contract is a digital handshake. As well as a digital contract. That’s all the handshakes are. It’s a formalization of the relationship. And so if you want it to be really loose and vague, cool, you can do that. You’re just assuming more risk.
Seven-page release for a contract. You can do that. Probably overkill. So it depends on what you’re doing, who you’re doing, what your goal is.
Again, if your goal is to represent all of these or to bring in all of these celebrities and talk about all this stuff and use their name, image, likeness, that’s going to be a longer contract than I’m going to talk to business owners about their travel, to how they got to be there, how I built this versus People Magazine.
That can matter. And then is there proper language? Again, if you want it to be enforceable, you have to have specific, or courts look for a certain language, and contracts go from the state in which it is or province in which it is. And so if I have a Canadian one and I’m saying, and in my contract, because I pulled it off the web and it says I’m using US Law, probably not a good thing.
Because why am I using US Law if I’m in Canada. Maybe there’s a reason.”
Balancing Risk and Liability in Contractual Agreements
I’ve occasionally been asked because, at One Stone Creative, our contract shows under laws in the province of Quebec, and I’ve definitely been asked if we could change that to somewhere in the states for companies signing the contract, which I can’t do because we’re in Quebec.
But according to Erin, I could do that.
Erin Ogden:
“You can do lots of things. It’s just how much risk you want to take on and how much liability.
If something goes wrong, who’s left holding the bag? And that’s what contracts are meant to do and build expectations of what we want to do, and what happens if it doesn’t happen? Who’s sitting there going, Uh oh.”
Final Thoughts
After talking to Erin, I feel this wonderful level of clarity around intellectual property regarding our show and our client shows, and that gives me so much more confidence about how to make decisions and advise others to do the same when it comes to these tricky and important issues.
The conversation has also inspired me to take the plunge and start getting some of our names and content protected a little more firmly, which is a somewhat intimidating but ultimately very exciting process.
Swinging back around to the topic of fair use, Erin has provided all of us a flowchart that can be used to determine if you can use a particular piece of content that you want to in your own show or elsewhere. So if you’re ever in doubt about whether something is really appropriate to use, this is going to help you.
Thinking About Facebook Ads?
So getting this kind of clarity on complicated topics is an amazing feeling.
Another time that I got to speak to an expert who laid things out so clearly was on a strategy and networking call last year where we had Stacy Reed, a Facebook ads virtuoso, spend almost an hour breaking down exactly how Facebook ads work, when and why.
The strategy and networking call was so awesome that we also made it into a podcast episode. So here’s a little clip where she’s sharing one of the reasons Facebook ads are a good strategy for so many businesses.
The whole episode is available here—and it’s a really good one. I recommend you check it out.
Key Quotes
“If you think it’s transformative, assume you need to talk to a lawyer to make sure, because you are not going to be able to make that determination.” – Erin Ogden
“If in doubt, get permission or don’t do it.” – Megan Dougherty
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Stacy Reed Website | Instagram | Twitter | Facebook | LinkedIn | YouTube
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