Podcasts have grown into one of the most popular forms of content sharing. They can be informative and personal at the same time, exploring current issues, reviewing material and sharing amazing stories. They draw on original content and sometimes it is just about your favourite celebrity talking to people. Often it is just a couple of people in a room chatting about a topic they care passionately about.
Despite this apparently simple premise, a lot of work goes into producing podcasts and, as with all original creative projects, it is worth considering the intellectual property for a variety of reasons. Along the production journey of production you need to make sure your original idea isn’t appropriated by someone else, having strong branding can add value to the product you produce and if you ever wanted to take the podcast into different arenas it is worth knowing about the system of rights and licenses to make that possible. All of these aspects of the production cycle have important links to intellectual property.
Below are some of the key stages in the production cycle for a podcast and the intellectual property issues that are worth being aware of.
Pitching your idea to a podcast production house can be a huge step in your career as a producer but it can feel like it comes with risks. The difference in bargaining power, value of the opportunity and reputations in the industry can mean that it can become a one-sided negotiation. One fear many producers have is for the information they present in their pitch to be taken by the production house and used to produce the podcast without them being involved. A question that is often asked is how to protect something before there has been the chance to fully realise the idea?
There is no straightforward answer, and as we will see, ideas themselves cannot be protected under the intellectual property frame work. However, the content of your pitch could be considered confidential information. There was actually a case which highlights this very issue and provides guidance for those pitching ideas to production houses. Although it relates to a television show it is highly applicable in the world of podcasts.
In Fraser v Thames Television Ltd  1 QB 44, three actresses, an all girl group called “Rock Bottom” along with their composer and manager pitched their idea for a TV show about three female rock singers forming a band, which was based on their lives. They offered Thames first option on the idea provided the three actresses, are given the starring roles but Thames made the programme without them. Thames argued that an idea was not entitled to protection because it was not fixed into a permanent form but the court disagreed. The court stated, in relation to breach of confidence, that the idea was capable of protection provided the idea was “sufficiently developed, so that it would be seen to be a concept… which is capable of being realised as an actuality”.
This means that if you take a sufficiently detailed and developed concept to a production house and then, based on what you communicate, they make a show without you, you may well be able to claim that there is a breach of confidence if the concept is used without your permission and to your detriment.
It’s important to remember that there is no copyright protection in ideas or concepts – only the expression of them that is fixed into a tangible medium. It has to be written on the page, filmed, or in the case of the podcast: recorded. Even though it is possible to protect the expression of an idea, it can be difficult to draw the line between what is protectable (the work)and what is not (the concept).
Copyright in the recording of the show will belong to the person (or business) that made the arrangements for the recording to take place. This will like be the podcast producer. Taylor Swift found out that earlier in her career the studio owned the recording rights to some of her music and she has since had to re-record her songs in order to own the copyright in those recordings. Podcast producers would do well to learn from her example.
Review shows: Copyright exceptions
What about reviewing books or other copyright works on your podcast? Or reviewing other podcasts? What if you wanted to review the reviewers of podcasts? You may want to quote some of the content, even include some snippets of recording. But as we know, this is original work and protected by copyright. Also, crediting someone’s work isn’t enough, permission is required to use works protected by copyright.
However, there are exceptions to this rule and the exceptions include being able to use a work of copyright for the purposes of quotation, as well as for criticism and review. There is also a separate exception for parody and pastiche.
There are limits to these rules, but it is worth understanding that you may quote sections of other original work if the quotation is necessary to highlight the point you are making. If you are considering reviewing, critiquing or joking about a another work without having obtained permission from the copyright owner then it is worth understanding the exceptions that apply and how they may be used. Below is a brief summary and real care should be taken before using someone else’s work without their consent.
The criteria for using these exceptions are:
- The purpose for using the work is really for quotation, criticism or review – you must include a genuine critique, discussion or assessment along with your use of the work – a podcast conducting book reviews may benefit from this exception where short excepts could be used to highlight a particular point you are making about the book;
- The material used is available to the public – you may not use confidential information, such as a private letter;
- The use of material is fair (there is no legal definition for what constitutes fair but this is a judgment call – using the book review example, consider what a publisher may think is acceptable – it may be less than you think);
- Where practical, the use is accompanied by a sufficient acknowledgement;
- The quotation must go no further than necessary than for achieving your purpose. This applies for quotation only.
Many people mistake these criteria for the “fair dealing” exception that can apply under US law. It is so important to understand which legal principles are applicable so as not to misunderstand what is required to enable you to use the content in question. You’ll see that it is far more complex than “fair dealing”.
Another consideration is trade marks – you could apply to register the name, logo, thumbnail, and perhaps even the intro jingle if you have one. Registered trade marks enable the owner to prevent the same or similar marks being used by a competitor for the same or similar goods or services (which in this case would be a podcast or similar production).
Having a registered trade mark for your podcast (and production company) will help you in preventing any similarly named podcasts from popping up. Who wants to be a millionaire is a good example of a tv show that has used trade marks to prevent copycat shows.
Lastly, producers should consider obtaining release forms from any guests who take part in an episode. Live recording of an episode means that there may be performance rights in the performance of individuals involved. In order to cover all bases, producers should have a standard form of release that waives various rights and enables the producer to use the content generated without restriction.
A little knowledge of intellectual property rights can go a long way so that you are clued up and don’t fall into any pitfalls, but it can also be a dangerous thing so before going to a pitch or starting your show, perhaps speak to a lawyer before you begin.
For a more in-depth look at the ways intellectual property rights are relevant at all stages of podcast production, you can listen to my masterclass on the BUILD | Business channel on Apple Podcasts – https://podcasts.apple.com/gb/podcast/build-business/id1610345330