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In recent weeks, I’ve written about my presentation at the Podcast Movement Convention on legal issues for broadcasters who are thinking about podcasting, and followed up with an article warning any company with employees or contractors creating podcasts or other digital media projects to be sure to clarify who owns the content that is created. Recently, there has been litigation about another issue – the individuals featured in podcasts suing the producer for unauthorized uses of the interviews recorded for use in the podcast, under theories including the invasion of privacy or violation of the rights of publicity of the interviewees.

One lawsuit receiving significant publicity (see for instance the detailed articles here and here) is from the family of the individual who became the main focus of the popular podcast S-Town. The podcast focused much of its attention on the life of an individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity. Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest. Most broadcasters, covering news events, don’t routinely run up against the restrictions set out in these laws. But podcasts and various other reality programming may be more lifestyle-oriented, and may detail private facts about individuals who are not in the news, leading to issues like these. Getting a release from the subject of an interview waiving any such rights, and otherwise giving the producer the rights to exploit the recordings that are made, can help to reduce the risk that these laws may otherwise pose. Plus, there are other reasons that a release may be helpful.
Continue Reading More Podcast Legal Issues – Getting Releases From Interview Subjects

Last week, we wrote about legal issues for podcasters, and made the point that media companies should be making clear by contract or otherwise who owns the podcasts that their employees and independent contractors have created. This week, there was press coverage (see, for instance, the article here) about a law suit…

Last week, 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.
Continue Reading A Presentation on Legal Issues for Podcasters – Who Owns What?

Next Wednesday, July 25, I will be speaking at the Podcast Movement Conference in Philadelphia, as part of the Broadcasters Meet Podcasters Track, discussing legal issues that broadcasters need to consider as they move some of their content into podcasts. One of the topics that I will be discussing will be the music royalty obligations of podcasters who use music in their programs. A month ago, we wrote about how broadcasters’ streaming royalties are affected by smart speakers like the Amazon Alexa and Google Home, as these speakers play the digital streams of a radio station’s programs where SoundExchange royalties must be paid, as opposed to the over-the-air signal of the station, where no such royalties are owed. These smart speakers may have an impact on podcasters royalties, affecting who needs to be paid in connection with the use of music in podcasts.

When I initially started to write about issues of music use in podcasts, my emphasis was on the need to secure direct licenses from performers and composers (or their record companies and publishing companies) for the rights to make reproductions and distributions of music in podcasts. When digital content is downloaded, it triggers rights under copyright law implicating the reproduction and distribution rights of copyright holders (see our article here), as opposed to their public performance rights – the rights with which broadcasters are most familiar as those are the rights that they obtain when paying Performing Rights Organizations ASCAP, BMI, SESAC and GMR in connection with their over-the-air broadcasts and those PROs plus SoundExchange in connection with noninteractive digital streaming. When podcasts were something that were downloaded, just like the purchase of a download of a song from the iTunes music store, it was the reproduction and distribution rights that were triggered, and conventional wisdom was that the PROs had no role to play in the licensing of downloaded media. As technology has changed, the analysis of what rights you need to use music in podcasts may well be changing too. The direct licensing of music for your podcast is still needed – but a public performance right may well also be necessary.
Continue Reading Hey, Alexa, How Are Your Affecting My Podcasting Music Royalty Obligations?

I was recently interviewed by Steve Goldstein of Amplifi Media, a firm that consults for podcast companies, on the difficulties with the use of music in podcasts. That interview has been turned into an article on Steve’s blog, here, discussing these legal issues. That article discusses the same issues that we’ve written about…