The Pew Research Center reports that in 2023, 42% of people ages 12 and over listened to a podcast in the previous month. Getting an exact count on how many podcasts there are is difficult as more people start new podcasts each day. Those who are starting or have started a podcast may want to be mindful of the intellectual property that their podcast may have, as well as how to protect that intellectual property. Whether you are in the planning stages, have just started your podcast, or have been podcasting for a long time, our experienced Chicago intellectual property attorneys at Sullivan & Carter, LLP may be able to assist you in protecting the rights to your podcast’s intellectual property. Call (929)724-7529 to schedule a consultation and learn more and intellectual property and podcasts.
There are four types of intellectual property: trademarks, copyrights, patents, and trade secrets. Two of the four can always be applied to podcasts, while the other two may only apply occasionally.
Podcasters can trademark unique names and taglines that their podcast uses. These can include the domain name, the podcast name, live streaming events, and individual episode titles.
While a creator automatically owns the copyright once the creative work is fixed in a tangible form (such as audio or video), registration offers additional rights. Registering copyright allows the podcaster to enforce their rights, such as filing a lawsuit if the copyright is infringed on. Copyright can be registered for podcast episodes, live streaming events, music or jingles associated with the podcast. If registration fees are a concern, podcasters can begin by registering their best or most popular episodes and eventually register all episodes.
Podcasts rarely have intellectual property that requires a patent. The United States Patent and Trademark Office (USPTO) offers three types of patents. If a podcaster came up with innovative new technology or processes, they may be able to apply for a utility patent for creating or improving upon an existing process. Examples of this type of intellectual property might be a groundbreaking software or recording equipment or method.
Like patents, it is rare that a podcast has this type of intellectual property. The most common trade secret a podcaster may have is their email list. Because trade secrets cannot be trademarked, patented, or copyrighted, their best form of protection is keeping them as confidentially as possible. Podcasters can protect their trade secrets by restricting access and using non-disclosure agreements when they do grant another individual or business access.
While there is not a legal requirement to register trademark or copyright protections for a podcast, podcasters do get specific benefits by doing so. First, it establishes the record of ownership and makes it easier to prove ownership in the future. Registration also proves the originality of the content and confirms that it is not copied from others.
Financially, registration allows the podcaster to file a lawsuit if their intellectual property rights are infringed. This provides access to remedies such as attorney fees and statutory damages. Registration may also enhance the value of the podcast and assist in transitioning to other forms of media if the podcaster is interested in expanding in such a way.
Many creators have begun to rely on artificial intelligence (AI) to help them create their content. From AI-generated images to asking AI to create a podcast title, list of interview questions, or write a blog post, AI has proven helpful to many creators. However, the United States Copyright Office has determined that when the content is solely AI-generated, it is not the product of human authorship and therefore, cannot be copyrighted.
This does not necessarily mean using AI means being unable to copyright material. What it does mean is that if a podcaster uses AI, they must select, arrange, or modify the material to such a degree and in a creative way that makes it meet the requirements for copyright. In other words, if a podcaster uses AI, they must think of it as a starting point and add their own unique flair to it, rather than using it as a complete content creation tool if they wish to copyright the material. Additionally, if some material is AI-generated and some is human-generated, when filing to copyright the human-generated content the podcaster must disclose that some of the content is AI-generated and what that content is. Failure to do so can result in a denial and the loss of some intellectual property rights.
Many podcasts take a question-and-answer approach and interview guests about various topics. While it may seem as though consenting to and recording the interview is enough to prove permission to use it, it is strongly recommended that podcasters have guests sign releases authorizing them to publish the interview or any other content the guests provide. If the guest later decides the material is unflattering or changes their mind about something they said, this release can protect the podcaster.
Some podcasts may want or need to use others’ intellectual property. Film, television or book review podcasts are prime examples, but other podcasts may also want to use intellectual property such as a clip of a guest’s interview on another podcast or playing a piece of music. Podcasters should always ensure they have permission to use trademarks. In most cases, they will also want to get authorization to use copyrighted material as well. Two specific things that podcasters must be mindful of are fair use and advertising.
Fair use is a term applicable to copyrighted material. Fair use allows the use of a certain amount copyrighted material without authorization from the copyright owner in certain circumstances. This may often apply to podcasts that review or discuss books, movies, music, television, or other copyrighted materials.
Whether a use is fair use is dependent upon the purpose and character of the use, the nature of the work, the amount of the work used, and the use’s effect on the original material’s market value. Because fair use can be subjective, podcasters may wish to consult with an intellectual property attorney with Sullivan & Carter, LLP to discuss their intended use and confirm whether it would likely fall under fair use or if they should seek authorization before use.
Some podcasters do it for fun and enjoyment, but other podcasters monetize their podcasts and make a living from doing so. They may monetize the podcast by charging listeners to listen to episodes or they may monetize by including advertising. While such advertising is legal, podcasters should ensure they have a clear, well-defined contract with the advertiser. They should ensure this contract includes explicit permission to use the advertiser’s trademark or endorse specific products. Additionally, podcasters should make sure that they make the appropriate disclosures and comply with other Federal Trade Commission regulations for endorsements and testimonials.
As a podcast grows, the podcaster may wonder if they need to file for international intellectual property protections. This will largely depend on the podcast’s content and popularity, as well as the specific locations in which the podcast is popular. Copyright laws vary by country, so podcasters may want to consult an attorney to learn more about when, where, and how to apply for international copyrights, if necessary.
For podcasters who are wondering about trademarking their podcast in foreign countries, the World Intellectual Property Organization (WIPO) Madrid System may make doing so easier and less expensive. This system allows users to pay a single fee and file one application to register their trademark in more than 120 countries. However, despite the convenience and lower expense, it may still be wise to review the podcast’s needs with an attorney before moving forward.
While some podcasts are hosted by a single person who has no guests and no co-hosts, many have one or both. The inclusion of additional people can complicate intellectual property rights, especially when guests or co-hosts are part of the content creation process.
Podcasters should establish intellectual property ownership and usage agreements with their co-hosts. These agreements should outline content ownership, revenue sharing, each individual’s responsibilities, and termination clauses that prevent disputes later. If both parties are considered equal owners of the podcast and its content, the agreements should also include details about whether one or both parties can start another podcast on the same topic and how or when they can use content from the original podcast.
As previously indicated, guests should sign a release authorizing the podcaster to publish the interview or content. This release should also grant permission to use the appearance in promotional materials or future episodes so the podcaster can promote the podcast and use clips in other episodes. The release should also outline content distribution, restrictions, and royalty payments, if any, if the podcast is or will be monetized.
Whether you are just starting a podcast and want to protect it from the start, or you are gaining popularity and think it is time to start protecting your intellectual property, an experienced intellectual property attorney can assist you in many ways. At Sullivan & Carter, LLP, our skilled Chicago intellectual property attorney may be able to assist you in registering trademarks or copyrights, drafting contracts with guests or co-hosts, and more. Call (929)724-7529 to schedule a consultation and learn more about protecting your podcast’s intellectual property rights.
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