How Copyright Can Protect Your Podcast and Other Considerations for Podcasters
Podcasts. Are. Popular.
For example, as of early October 2021, there are at least 4,290,593 podcasts worldwide.1 A January 2021 study found that 57% (162 million) of the U.S. population has listened to a podcast, with 41% (116 million) listening to a podcast within the last month, and 28% (80 million) listening to a podcast within the last week.2 And, as further evidence of the vast appeal of podcasts, the U.S. podcast audience is more diverse than the U.S. population overall.3 As a podcaster, how can you protect your work and what else should you be thinking about?
Copyright vs. Trademark
The two primary genres of intellectual property law through which podcasters may protect their work are copyright and trademark.
Copyright protects “original works of authorship fixed in any tangible medium of expression.”4 The “works of authorship” protected by copyright can include such things as sound recordings (e.g., podcast episodes), literary works (e.g., a podcast episode’s script), music (e.g., a podcast’s theme), and imagery (e.g., a podcast’s cover art). The exclusive rights afforded a copyright owner by this protection include the rights of reproduction, distribution, and others enumerated in 17 U.S.C. § 106. Only the copyright owner has the right to undertake and authorize others to undertake these activities for the term of copyright in a work.5
“A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.”6 Thus, a trademark can protect a podcast’s logo or title.
More About Copyright
Copyright exists as soon as a work of authorship is fixed in a tangible medium. Thus, copyright for an episode script exists as soon as it is saved on your computer or written down, and similarly, copyright for that episode’s sound recording exists as soon as it is saved to .mp3 (or similar) format.
It is important to note, however, that copyright does not cover an idea, only an expression of an idea.7 This is why there are so many “true crime” podcasts. True crime is the idea, and there are several different ways of expressing it. If copyright protected ideas, then there could only be one true crime podcast! Copyright protects your expression of the idea, as long as your expression doesn’t take from another copyrighted work without permission.
Registering Your Podcast Copyrights with the U.S. Copyright Office
If copyright exists as soon as a work of authorship is fixed in a tangible medium, what’s the point of registering a work, like a podcast episode, with the U.S. Copyright Office? Though registration isn’t required, doing so has many benefits, as described here. One of the biggest reasons to register is that, unless a particular exception applies, registration is required before you may institute litigation against someone for infringing copyright you may have in a podcast episode.
Registering copyright requires 3 elements:
Application form (online or paper);
A nonrefundable filing fee; and
Submission of a deposit copy (such as for a podcast episode, the media file (e.g. .mp3) and a copy of the text of the episode).
The application “establishes the basic facts of a [copyright] claim: the title of the work, the author of the work, the name and address of the claimant or owner of the copyright, the year of creation, whether the work is published, whether the work has been previously registered, and whether the work includes preexisting material.”8 The Copyright Offices posts this information to its public database, thereby helping you notify the world of your registered copyright.
Turnaround time for a registration can be several months, but the effective date of the registration will be the day that the Office received the application, fee, and deposit in acceptable form.
What If I Want to Use Material I Didn’t Create In My Podcast and Other Considerations?
Due to the exclusive rights afforded copyright owners mentioned above, if you want to use material you didn’t create in your podcast, then you must obtain permission from the owner of the material, unless a specific exception or limitation applies. These include, but are not limited to, fair use,9 or that the work you wish to pull from is in the public domain.10 One persistent myth is that there is some sort of “snippet” rule, i.e., if you use a small portion of another work (say, 30 seconds or less) then permission is unnecessary. Such a rule does not exist! Thus, it is important to do your due diligence to determine if you can use the material you want without permission. Otherwise, there are many sites offering stock materials, such as music and artwork, for licensed use or outright purchase. There is also material subject to Creative Commons licensing.11 But even when purchasing and licensing content, it is imperative to read and understand the fine print to avoid unwelcome surprises going forward—like owing royalties or being sued for not adhering to a contract’s requirements!12
Furthermore, if you have guests on your podcast, you should obtain their permission to be featured. And before posting your podcast, whether with a podcast hosting company or social media platform, or executing a sponsorship/brand deal, again, read the fine print of the “Terms of Service,” “Terms and Conditions,” or other applicable contract to ensure you maintain the level of ownership and control you want over your podcast.
Final Thoughts
We’ve touched upon several items to consider when creating podcasts and registering the copyrights associated with a podcast, but many other issues remain, including how to intelligently leverage your podcast’s copyright and other intellectual property assets for continued success, whether simply within the podcast realm or by branching out into other media.
No matter if you are a seasoned podcaster or a newbie, we can assist you with navigating these and other intellectual property questions that may arise. Please contact us to learn more.
[1] Podcast Index Stats, https://podcastindex.org/stats (last visited Oct. 4, 2021).
[2] Edison Research & Triton Digital, The Infinite Dial 2021 55-566, 62 (2021), http://www.edisonresearch.com/wp-content/uploads/2021/03/The-Infinite-Dial-2021.pdf.
[3] The Nielsen Company (US), LLC, Podcasting Today: Insights for Podcast Advertisers (February 2021) 3, https://www.nielsen.com/wp-content/uploads/sites/3/2021/02/Nielsen-Podcasting-Today-Feb-2021.pdf.
[4] 17 U.S.C. § 102(a).
[5] For more information on copyright duration, see U.S. Copyright Office, Circular 15A: Duration of Copyright (2011), https://www.copyright.gov/circs/circ15a.pdf; Peter B. Hirtle & Cornell Univ., Copyright Term and the Public Domain in the United States, Cornell Univ. Library Copyright Info. Ctr., https://copyright.cornell.edu/publicdomain (last updated Mar. 17, 2021).
[6] 15 U.S.C. § 1127.
[7] 17 U.S.C. § 102(b).
[8] U.S. Copyright Office, Copyright Registration 1 (2021), https://www.copyright.gov/circs/circ02.pdf.
[9] 17 U.S.C. § 107; U.S. Copyright Office, More Information on Fair Use, https://www.copyright.gov/fair-use/more-info.html (last updated May 2021).
[10] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(D) (3d ed. 2021), https://copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf.
[11] Creative Commons, Frequently Asked Questions (June 15, 2021, 17:59:43 UTC), https://creativecommons.org/faq/#about-cc.
[12] Simplecast has created an infographic related to these questions. Jeanine Percival Wright, Answers From An Actual Lawyer: Can I use that Music, Image, or Clip?, Simplecast: Podcast Help (Apr. 19, 2019), https://blog.simplecast.com/can-i-use-that-music-image-or-clip/.
This is a site offering non-comprehensive commentary. It is not an attempt to provide legal advice. This blog may be construed as an advertisement, but should not be construed as legal advice or a legal opinion on any specific facts or circumstances, nor does it create attorney-client privilege.
