Influential Introvert: Communication Coaching for Professionals with Performance Anxiety - Podcasting & the Law: How to Avoid Getting Sued or Kicked Out of Apple Podcasts

Episode Date: July 25, 2019

Have you ever wondered, “Can I share a clip of this music on my podcast?” or “Should my guest sign a release form?” or “How do I legally disclose affiliates so I don’t sound like an awkward shill?” Well, you have come to the right place with your podcast legal questions.    Entertainment lawyer Gordon Firemark joins me on Podcasting Step by Step to discuss:  why your guest should sign a release form and what should be on it; whether you can (or should) choose a podcast name that already exists; how to disclose affiliate relationships on your podcast; what fair use is and whether you can use music, news, or film clips on your show;  the benefits of registering your podcast as a business;  the difference between copyright and trademark and whether you need this for your podcast; if we need formal working agreements when hiring people to help us with elements of our podcast, like show notes and audio editing (you do -- ‘work made for hire’ contracts);  the elements of a podcast sponsorship contract;  the rules of podcast giveaways; the policy that absolutely needs to be on your website (privacy);  the difference between libel and slander; and do we need to worry about GDPR if we don’t plan on monetizing (yes).    Gordon is THE go-to person when it comes to podcasting and the law. He is good at breaking down wonky legalese and also has one of the most soothing podcast voices I have ever heard. Legal information never sounded so good.    Of course, we’re not offering legal advice. This purpose of this episode is to answer common questions podcasters have about the law.    Visit sarahmikutel.com for more articles on how to podcast. Ready to start your own show? Download my free guide: “8 Mistakes New Podcasters Make and How to Fix Them.”    Looking for a podcast media host? Use my LibsynDo you ever go blank or start rambling when someone puts you on the spot? I created a free Conversation Cheat Sheet with simple formulas you can use so you can respond with clarity, whether you’re in a meeting or just talking with friends.Download it at sarahmikutel.com/blanknomore and start feeling more confident in your conversations today.

One of the justices in a Supreme Court opinion years and years ago wrote something like the law does not deal in trifles. Don't bother us with something that's so stupid. Go settle at yourself, children. I do not want to hear about Grumpy Cat. Just please move on. Exactly. Have you been wanting to start a podcast for a while now, but something's holding you back? Maybe it's fear of putting yourself out there or confusion about the technology. I'm Sarah Mikital and on podcasting step by step, I'll break down how to podcast with a little loving motivation to give you the skills and the confidence you need to finally launch that show of your dreams.

Let's get started. Can I use this music on my podcast? Do I need my guest to sign a release form? On this episode, I am talking to entertainment lawyer Gordon Firemark, who is the go-to person when it comes to podcasting and the law. He also has one of the smoothest podcasting voices I have ever heard, so legal information has never sounded so good. On this episode, we answer many of your legal questions, including why your guest should sign a release form and what should be on it, whether you can or should choose a

podcast name that's already out there, how to disclose affiliate relationships on your podcast, what fair use is, and whether you can use music, news, or film clips on your podcast, on your show, the benefits of registering your podcast as a business, the difference between copyright and trademark and whether we need to worry about this for our podcasts. We talk about if we need formal working agreements with people we outsource our work to like show notes and audio editing, the rules of podcast giveaways, the policy that absolutely needs to be on your website. And what the heck is GDPR? This was a very hot topic in 2018. and is still confusing most of us. But Gordon is very good at breaking down wonky legalese,

and you are going to learn a lot in this episode. I actually had Gordon sign the release form that he himself created, which I find hilarious. So let's jump into the interview. Welcome, Gordon. Thank you so much for joining me today. Thanks for having me, Sarah. So you are an entertainment lawyer who has carved out this really interesting niche in the podcasting space. How did you become known as the podcast lawyer? Well, that's a great question. So I, you know, I have an affinity for podcasting, both as a listener and a podcaster myself. And when I set out to start my own show, I went sort of looking to see, was there any resource material on the legal aspects of it? I mean, as an entertainment lawyer, I kind of knew the ropes, the basics of, you know,

media law is media law. It doesn't really matter what medium you're operating in. But when I realized that there was nothing out there specifically addressed to podcasting and specifically addressed to podcasters, now this is, you know, seven or eight years ago, uh, it was actually 10 years ago when I started my podcast. But I, I realized nothing targeted at podcasters, most of whom at the time were not professional media people. They were hobbyists who wanted to have this thing. And so I realized there's a need. And so I wrote an e-book on the legal aspects of podcasting. And that's sort of how you make a name. You know, you establish your authority in a field. And I've just sort of kept publishing and talking about this. And one after another podcasters have come to me for help. And I've been able to refine my knowledge and

expertise and my authority. And here I am. So what podcast do you have now? My main podcast is called Entertainment Law Update, and it is a monthly roundup of legal news in the entertainment and media and copyright space and trademarks and stuff like that. And I have a co-host and we've been doing it together every month for the last 10 years, 10 years and two months now. And so that audience is lawyers. It's, yes, it was originally intended mainly for lawyers and law students. And we actually monetized the first few years we monetized. by offering continuing legal education credits for lawyers. That didn't work out the way we'd hoped.

People were not inclined to pay us for the credit for listening to our funny little show. But we picked up sponsors. And anyway, so the original audience was lawyers and we picked up law students and other professionals in the entertainment industry are listening now as well. I know that you had a course at one point. Is that another way that you're monetizing the show? Not so much that show. The course is, I have several different. courses, but the one I think you're talking about is specifically targeted at teaching lawyers

how to podcast as a marketing tool for their law practices. It's called power podcasting for lawyers. And I actually started a podcast specifically tailored to that show called The Law Podcasting Podcasts, and just interviewed other lawyers who have podcasts, sort of as a proof of concept or social proof of the fact that podcasting works for lawyers as a marketing tool. Hey, it's a great way to put out authority and, you know, prove you know what you're talking about. Yes, you are an excellent marketer, Gordon. I'm so impressed. Thank you. I wish my bank account would reflect that sometimes. So, okay, well, there's so many legal questions that the average podcaster has, who has, in their general life, nothing to do with law, which is why I'm so.

excited to talk to you about some of these questions and to start off. So let's say that I'm a new podcaster and I have my heart set on a name and then I realize that somebody else is already using this name. If I don't feel like change, could I still use this name? So the answer to this one is maybe. The reason for that is that it depends on the name. It depends on what that name is. If it's something very generic and descriptive and broad, then you probably can get away with using the same title as someone else's show. If you search in the directories,

you'll find lots of shows with similar or the same titles. However, if it's more distinctive title, or if it's been a very long-standing show and it's therefore acquired some distinctiveness in the mind of the public, then it's entitled to protection as a trademark and protection under a variation of the trademark law called unfair competition. And that gives the person who was there first, essentially the right to prevent others from using confusingly similar names and titles. So, yeah, for example, I actually represent a number of podcasters in registering and protecting their titles so that they don't have copycat or not even copycats.

It could be a show on a completely different subject that has the same title. For example, you know, maybe I'm a vocal music person and I create a show called The Great Singer Show. Yeah. You know, it's pretty descriptive, right? It's not going to be entitled to that level of protection. But if I'm around for 10 years, or five years even, the Great Singer Show, people are going to start to recognize that that show comes from me. And then when the sewing machine comes along and wants to create the Great Singer Show or even just the Singer Show, they're going to be confusing the marketplace.

And so I do have, if I've registered a trademark, I have the right to stop them from calling their show, The Singer Show. Can we talk a little bit more about what the difference is between copyright and trademark and whether we need this for our podcast? Yeah, this is a very common, I won't call it a misconception,

but it's a mix-up that people have, conflating copyright and trademark. So copyright is designed to protect content, essentially any original work of authorship that somebody creates. That creator, the author of that work, owns a copyright from the moment that they start recording or writing or typing or whatever it is they're doing. So it could be maybe you write poetry or paintings or whatever. And when you record a podcast, you own the copyright in that recording, in the material embodied in the record. recording from that moment on until 70 years after your death, basically. Now, trademark is designed to protect those distinctive brands and names of products and

services that are, the idea is that we want to be able to connect the dots between the brand and the owner or the creator of that brand. So when I say to you, uh, you buy a box of crackers and here in the U.S. a box of crackers with a red triangle in the upper left corner of the package, you probably Nassar, do you know? Is it Nabisco? Nabisco, right. So that red triangle is a trademark, a brand symbol that connects the dots that says

this box of crackers is coming from a company called the National Biscuit Company, Nabisco. And other brands in that same example are Oreo cookie or Triscuit crackers or saltine. All of these are brands so that we know that's coming from this company over here. So when I have my show, the Entertainment Law Update podcast, when somebody hears Entertainment Law Update, they think of me. If somebody else comes along and creates a show by the same title, that's going to confuse that listener. It's all about consumer protection in the trademark space. That consumer is going to go listen to that other show and think, oh, that's not Gordon's show. That's not what I was looking for and get confused.

And so that's why I, as a trademark owner, have a right to put a stop to that, prevent somebody from confusing. though my title is a very descriptive one, because we've been around for 10 years, we've acquired that distinctiveness. So if we wanted to do this, how much would it cost us? Here in the U.S., a registered trademark. The government fees are in the neighborhood of $300 and the legal fees to do it. Look, you can do it with some of these online form filler services that are out there, you know, the rocket zooms of the world.

And you could do it that way and save a few hundred dollars. It's probably four or five hundred dollars when you use one of them. I think you get what you pay for and it's risky. So if you use a lawyer like myself, you probably pay between $1,000 and $2,000 for the registration paperwork and processing. And, you know, you really get a turnkey thing that you can feel pretty comfortable about. I heard that Entrepreneur magazine said that no one else can use entrepreneur when it's comes to podcasting. Is this true? It is. Entrepreneur magazine registered a trademark for its word, the word entrepreneur for media, which is a class of goods and services in the trademark.

Now, if I want to call my tennis shoes, entrepreneur shoes, I can do that because that's a different class. But if I want to create something in the media space, whether it's a magazine, a book or a film or a television show or a podcast, then I'm going to be confused. as possibly coming from the people who are behind Entrepreneur Magazine. And so they have the right to stop me from doing that. This seems so unfair to me, though, because when did they do this? Like a really long time ago, I'm sure there have been people out there who've had podcasts with entrepreneur in the title for a long time, right? There have, and they've been stopped.

Okay. So they did this a long time ago. They registered their trademark in the 1970s. Okay. I guess, okay. Okay. Okay. So I'm thinking that podcasts has like their own sort of category. So podcast just falls into media. And anyone who has a trademark for media, it's all going to fall into that bucket. Probably. Yes. In the entertainment space, entertainment media and the arts generally falls in the same class. There are some exceptions. But yeah, a podcast and a radio show and a film and a television show are all going to fall. Look, it's the same thing. It's just a different way of transmitting it in some sense.

I guess I just think they're being scrooges. Well, there's a lot of people who think that. I'll tell you that, you know, here's the other side of it, is that the folks that are confronted with these kinds of challenges, you know, if they're smart, they do a great job with it. You know, I mean, the elephant of the room is John Lee Dumas and his show. It was originally called on fire and he now calls it EO Fire. and everybody knows what it's about and, you know, he's done just fine without using the word entrepreneur in the title of the show. And so it forces us to be a little creative in how we present our brand.

But, but yeah, I think, you know, that's really what it comes down to is be creative. Come up with something that's unique and distinctive to your brand and, and hammer it hard. Okay. I could go on and on, but I'll move on. So if I plan on repurposing my content, should my guest sign a release form? Even if you don't plan on repurposing your content, your guests should sign a release form. And here's why. So each of us has a right of privacy and in some places we call it right of publicity,

which is the right to control commercial uses of our name and likeness and appearance and our persona. And so the right of privacy is not about commercial use. It's anything. If you record my voice, you need my permission to do that. And it's a good idea to have that permission in writing. Yes, the fact that we sat down and started recording and you said, okay, I'm going to start recording now. And I said, okay, let's go.

Yeah, you've got some implicit consent. But what if I decided I wanted to revoke the consent or challenge the scope of what I said we could record for? So having something in writing says, you know, all of the things listed on this piece of paper are fair game for me. What I do with this recording. And I know that the release that you asked me to sign because I wrote it says that, you know, any and all uses in any and all media forever and ever and ever and ever anywhere in the whole universe and so on and so forth. So, you know, that's it. If you want to repurpose this recording, you are free to do so.

and you owe me nothing other than a nice thank you. So we want our release to make sure that it's clear that I own the rights to this content to use however I want forever. Yeah. And I'll tell you, I've had scenarios where a podcaster sat down and recorded a show with somebody. And years later that somebody came along and said, I want you to take that episode down. I don't want you to use it anymore. And because there was nothing in writing, it was a valid question. of whether the podcaster had to do so. And when that particular guest came along and said, well, if you don't take it down, I'm going to sue you.

And then the podcaster and I talked about it. And podcasters said, no, I'm not going to just take it down. She needs to, you know, answer some questions and let me put up an explanation. And this person said, I don't want my name anywhere on your website. I don't want any evidence that I was ever on your show. And so we kind of pushed back. And it ended up in court. And the lawsuit was for lots and lots of zeros.

Wow. Yeah. And we ended up, it was settled, you know, it was resolved to everybody's satisfaction. But it should never have gotten that far. Had there been a signed release, no lawsuit would have happened. Right. Wow. That is complicated.

Affiliate relationships is another thing that I'm quite curious about because sometimes on podcasts, it's obvious to me that they're doing in ad read because all of a sudden we'll start talking about toothbrushes. But they don't explicitly say that it's an ad. So is there a certain language that we should be using legally? You know, it sort of depends on whether it's an affiliate relationship versus a sponsorship where the advertiser is paying straight cash for the mention. With the traditional advertising, the rules are pretty, it's all pretty fluid. If it's not clear that what you're doing is an advertisement, you need to make it clear. That's the bottom line basic rule. So under the Fair Trade Commission here in the U.S. is the organization that enforces, you know, false advertising rules and misleading ads and things like that.

Basically, the point is you don't want to mislead the audience into thinking that this is your own personal opinion about this particular product, good, or service, whatever it is, when you're actually being paid to mention it or to say nice things. about it. And so we've all heard those ads on podcasts where you're, you know, hey, if you buy this all, you know, you should read this book on Audible. By the way, Audible pays us, you know, or gives us a commission when you sign up for your Audible account. That's what you need to do is be transparent and tell, tell folks about that. That's the affiliate disclosure. You know, we get paid a little something when you sign up for this or buy that or whatever. But when it's a very obviously an advertising announcement, like, and now a word for, you know, a word from, you know, Casper Mattress or, yeah.

No, Casper did not pay me to say their name. But you know what I'm saying? They're one of the big advertising. So, so when you're clear that, okay, this is an advertisement message. The audience can infer that you're getting paid. Yeah. So sometimes they do it with music. Like they don't say and now, sometimes they'll say a now a word from our sponsor,

but sometimes they'll just sort of have this musical interlude and then say, like da-da-da-da, Casper Matters, and then, you know, fade back into the discussion. So you think that's fine. Yeah, well, I think it's okay. I mean, better to be as open about it and transparent as possible because ultimately it's the, it's the advertiser who's going to get the hit if the government comes after them. And so it's really in the advertisers' interest to make sure that it's done right. But you as a podcaster, you're in the, let's face it, we're in the business of selling earballs to advertisers. Yeah.

So if I'm telling an advertiser, hey, I'm going to get these many people to listen to your thing and you pay me for it, the advertiser ought to be able to be confident that they're not going to have some hidden penalty or fine coming out because of the way you did it. So I think it's in all of our best interest to do it right and the transparency. The more transparent the better. On to fair use, everyone's favorite about whether they can use. music or film clips or news clips in their show. So if I, you know, want to review a book and want to read a passage of it, and also I guess you can tell me if there's a difference between the medium.

If I'm like reading from a magazine or if I want to play like a clip from a film, do these different medium, does it matter what medium it is? And can I actually use these previews in my episodes? The medium really doesn't matter. It really, you know, what goes along with a film, you know, like an electronic press kit you get from a film company is there's an implied license to use it for certain purpose. Sometimes it's even an express license. They've written it out somewhere. You can use it for these kinds of purposes. And so when it's that kind of material, rather than just something you grab off of YouTube or from a rip of the movie, you know, you use it within the scope of whatever that license or permission is.

But no, the general rule is, look, if you're using somebody else's content, somebody else's media, you need their permission in order to do so. The exception or the defense that comes into play that you mentioned is called fair use. And it comes from the American First Amendment, free speech principles. And basically, when we have a law that says you can't, you know, make a copy of something or say something or print or record or whatever, that sort of goes against the idea of free speech. So we have to balance out. Well, we have this copyright thing on one side.

We have this free speech thing on the other. And so the courts developed this multi-factor test in the early 1900s and through the 20th century. They developed this test. And then it has these four factors. And then in 1976, when Congress updated the copyright law, they made that a part of the copyright law. they made that a part of the actual statute. And so the four factors are, all of them weigh equally and independently,

but I'll tell you what they are. The first one is the purpose and character of the intended, the alleged infringing use. And that's where we get into the educational use or criticism and comment and those kinds of uses are more likely to be considered free speech

than, hey, I'm just putting it in my, my TV ad or something like that. That's a very commercial, use and so that's more less likely to be considered fair use and free speech. Then we get into the amount and substantiality of the portion that's taken. So we're looking at how much of the original did we use relative to the size of the original. So if I have a three minute song and I take 30 seconds, I've taken 10% of it. But if I have a two hour movie and I take 30 seconds, I've taken a much smaller percentage.

So that amount counts for something. And then the substantiality, if it's the key core, hook of the thing, then that may be more substantial, even though it's a very small little snippet. And so we have to consider those factors. Then we get into, of course, the nature of the original work and how does this new use relate? Is it similar in nature or is it very different and transformative and sort of a new art form or a new kind of piece or something like that? And then the fourth major factor is the impact on the market for the original. This is the one where people get this idea.

Well, I'm not getting paid for it. So it's okay. That's not exactly true because it can still have an impact on the market. Even if you're not getting paid, it means that I who wrote that song, I'm not getting paid for the copy that you made of the song. Yeah. You know, so you've got to weigh all these four factors and then sort of roll it all up with this idea of does it transform into something really new and different? Or is it really just more of the same and just, you know, sucking away at the market and the benefit for the owner of the original? So it sounds a little bit gray, but that if we're doing some sort of comedy or mixing it up significantly, then that would be okay.

But we can't use it as our theme song. Well, again, it depends on how much and exactly what you use is right. Exactly. Using it for your theme song, now you're using it as branding and that's sort of commercial in its tone. And yeah, that's more likely to be considered infringement. So, you know, no one factor will carry the day. You have to look at all these factors and then sort of balance it out. So, yeah, it's a gray area and it's deliberately gray so that we decide this on each individual basis.

We don't have rules of thumb or bright line rules on us. Yeah. I'm still confused about this. I still would just, I just wouldn't use it. I've been given us for years. But I keep hearing that at podcast movement, there might be. some big announcement. Do you have any hypothesis of what this would be? I have a little bit of inside information, so it's not a hypothesis. There will be some announcement about how it's going to

get easier to use music in podcasts. Yeah, going for in the next six months to a year, we'll see some changes in, well, some products that make it easier in some space. And can you can, can you spill anything? What I can tell you is it won't be all music, but it will be a big catalog of things that will be more accessible. And come hear me talk at podcast movement, I'll tell you more. Well, I'll go interview then, Gordon. Looking forward to it. I will be there. So I'm guessing that these same rules apply to, on our website, if we want to do the same thing. Yeah. Really, any copying. This is not just about music

or film clips. If you want to copy the text of a poem from a book and put it on your website or be posted as a social media meme or something like that. Technically, the same rules apply. You need that permission or it needs to be fair use. And fair use, by the way, just a couple more points on that topic. Fair use is a defense to copyright infringement. It is not an automatic free pass. You have to go through this analysis. And oftentimes doing that means hiring lawyers and spending to make that happen. And there's no such thing as an inexpensive lawsuit. And secondly, it only works here in the U.S. because it's U.S. law.

If you are in another country and the author of the work is in or chooses to come to that other country to sue, they can still do that. And fair use just won't apply at all. So my real advice here is don't rely on fair use. Okay. Get the permission. You know, so, you know, if it's a parody or if you're doing a movie review show or something like that, And you want to play a little snippet of the film so that you can say, you know, that was a scene from such and such. And we're going to be talking about that today.

That's probably going to weigh as fair use. But again, if you get the clip from the electronic press kit for the film, you're going to have a license anyway. And you don't need to worry about fair use. Okay. That's an excellent point. What about all of these memes? Just to go a little bit off of topic. But when people make gifts of things and, you know, I'm seeing all sorts of movie clips.

I mean, I guess it's kind of that space seems a bit wild west. Yeah, it is. The truth of it is it tends to be such small, tiny little bits of things and pretty transformative often because they're using it for a completely different purpose. It's not going to undermine the market. So it probably satisfies the fair use factors. But more importantly, I think it's the kind of thing that copyright owners just don't have the time inclination resources or energy.

Yeah. which isn't to say we should all go out and fly under the radar this way because eventually somebody will get slapped hard. But in fact, I think the guy, not the guy, the family that owned the cat that was known as grumpy cat, I think they were going after people who used photos of grumpy cat without permission, at least on a large scale uses. But yeah, the memes on Facebook, you know, it's minimal. It's in fact, there's a principle in copyright law called de minimis use where you're taking and using it for such a small thing that the one of the justices in a Supreme Court opinion years and years ago wrote something like the court the law does not deal in trifles.

I love that. So look, don't bother us with something that's so stupid. Go settle it yourself, children. I do not want to hear about grumpy cat. Just please move on. Exactly. So should we register our podcast as a business? And there's two ways to do, well, two kinds of doing that. You know, one is the registering, the trademark that we talked about earlier.

You know, you brand your show. You want to protect it so nobody else comes along and creates a competing, confusingly similar brand for a different show. And so registering a trademark is a great start. whether to form a corporation or a limited liability company or something is another question. And I say probably, but really only if there's, you know, sort of one of the good reasons. And I'll run down the reasons. First of all, if it's two or more people doing business together, they're going to be called a partnership in the eyes of the law unless they've created some other kind of an entity.

And again, if they haven't gone to the trouble of writing up a partnership agreement or forming an entity, those partners are going to be treated as equal owners and equally responsible for any bad stuff that might happen. And then they can also end up in disagreements and disputes about what to do if they split up. You know, the proverbial business divorce can be really messy. So having either a written partnership agreement or forming a limited liability, company or a corporation is a great idea when you need to figure out who's responsible for what and who owns how much and all those kinds of things. Another reason that people form entities is because they can realize a tax savings.

If you've got income coming in from your podcast like advertisements or whatever else, and you can run the expenses of the show against that income and reduce the overall to a net number and then the owners pay the taxes on their respective percentages of the net. And the company may or may not end up paying taxes on the income first, where this gets really interesting and you have to talk to your accountant about this. I'm not an accountant. Numbers are not my thing. But if you're earning a certain amount of money and each of the people who owns the company

are in the high income tax brackets where they might be paying as much as 35 or 40, percent of their income and taxes, the corporate tax rate or the LLC tax rate might be lower than their individual income tax rate. And so there's a lot of value to paying taxes at the corporate level and then essentially passing through less income to the owners and they can realize a little bit of a better overall rate. So that's a complicated tax calculation to be figured out if you're in the high tax brackets and you have a show that's making good money. So intriguing. Well, I mean, not even just making good money to start with sponsorships or things like that.

You can do things like that you were doing. Eventually you're like, you know what? I think my listeners would like to have a course or, you know, different services like that. And so I think having it set up in advances a nice way to just, yeah, have that foundation. Yeah. So the podcast may be the business or the podcast may be part of a business. For me, my podcast is a part of my law practice business, so I don't have it as a separate entity. I mean, the one remaining reason that you might want to form up, well, there's two of them,

but the one big one is liability. Corporation or a limited liability company can protect its owners from liability related to that business's enterprise. So let's say you did have a copyright infringement happen in your show and you get sued, in the corporate or LLC structure, they sue the company. And only the company's assets are going to be exposed to that liability. Whereas if you're a partnership or a solo practitioner, a solo proprietor, then all of that person's personal assets might be exposed to the liability.

You could end up having a lien on your house or some of your property taken or something like that. So if you're, again, if you've got assets to protect, forming an entity might be a really good idea there as well. And then just to wrap up the discussion, the last reason you might want to form an entity is if you want to go out and bring investors in, you then have equity in the company to sell within a management and ownership structure that is more manageable than just taking on lots of little partners. I love that you are setting us up for such success. Now people are interested in investing in us. That's great. I'm going to bring it back to a negative part, a negative spot, though, which is not usually how I am, but you mentioned people suing us. And that got me thinking about slander. And in this age of fake news, when people seemingly are saying whatever they want, whenever that, you know, whenever, what exactly is slander from the legal perspective and what should we know about it when it comes to podcasting? So slander is the oral version of a, what we call tort, called defamation.

The written, recorded, published version of that is called libel. And it's basically when you tell lies about someone and that hurts their reputation. So if it's a false statement that's made about a particular person or, you know, the small group of people who can easily be identified and it hurts that person's reputation, then they have a claim for that damage to their reputation, that harm. For libel, in podcasting it would be considered liable, not slander. Slander would be if you and I are talking in a room somewhere and I say something terrible about one of our mutual friends

you can find out about, then that's slander. Okay. But when I publish it to the wider audience, electronic media, pretty much almost always makes it a libel situation. Okay. So, you know, if I say something false and harmful, it has to be both false and harmful. It's not enough, you know, if I say so-and-so likes to wear flowers in his hair, is that really harmful to the reputation?

And if so, how, to what extent that might not be liable or slander? But if I say that that person's a child molester, that can be really harmful to somebody's reputation. So false damaging to reputation statement that appears to be factual rather than opinion and or humor and and yeah, false about a person that causes harm that yeah, that's that's running through the fact. Yeah. But I mean, I guess you could say something that's true that someone doesn't like and they could still see you, right? Probably not. I mean, that's the thing. If if someone actually is a child molester and I say it, they don't have a claim for me against, against me for libel.

They don't have a claim against me for right of privacy because that's a matter of public record, right? Yeah. So, oh, I mean, they, look, anybody can sue anybody for anything at any time. Can they win is the real question. Yeah. And I would say, no, not in that scenario. Yeah.

Saying something that's true that sort of creates a false impression about a person, that might be something that would. would come into play. There's a principle called false light invasion of privacy. We're getting into the weeds here a little bit, but it's theoretically possible, but not something I would worry too much about, unless you're deliberately trying to create a negative implication, hurting somebody's reputation. Bottom line is, you know, all the golden rule. Yeah. You know, treat others as you wish to be treated and and be honest and and truthful about things. Don't tell lies and, you know, don't reveal people's deep, dark secrets. Well, if you're an investigative journalist,

that's your job. But, you know, for most of us. Yeah, let's keep it positive, everyone. Life's too short for going around libeling people and being mean and awful and listening to true crime all the time. Well, the truth is, I think that there's a, there is a place for the expose journalism. Oh, yeah, true journalism. Yes, I agree. But I think if you're going to be doing that kind of podcasting, you need to take the time to study up on what it means to be a journalist and what it means from a legal standpoint to get it right so you don't expose yourself to liability for these things. Right. But for the most of us, you know, you're kidding around on the show with your co-host and you say something terrible about somebody else,

you know, be nice. Well, on more innocent topics, so if we wanted to hire someone to help us with our show, let's say we are sick of doing show notes, we want to pass it on to somebody else or the editing of our audio, do we need to have any agreements in place or is it assumed that they're providing a service?

and we retain all the rights to our work. Right. Nothing is assumed. And no, it's actually a very common misassumption, I guess, is that, well, I paid them, so it's mine. No, that's not the way it works in the copyright space. The, yeah, I mean, copyright belongs to the person who creates the work. So if I give a bunch of raw audio data to an editor, the edited version of my show may very well belong to that editor unless I have a written contract with that person that includes

the special language about it being a work made for hire. That's magic copyright language that transfers ownership. So you definitely want your editor to have signed a work made for hire agreement. You definitely want your virtual assistant or your show notes writer or anybody who's writing stuff for you to transfer ownership either by work made for hire or by an assignment of the copyright later on if that's the way. I prefer the work made for hire for these scenarios. So, yeah, you need something in writing. That's great to know.

So what, can you just run through the basics of what that would need to say, that work for hire document? Well, that main, first of all, you name who are the parties, what's the subject matter of the agreement. This is the double use of writing, who, what, where, when, why, how, how much, those kinds things. So who are the parties? What are we hiring them for under, you know, what are the conditions and circumstances that would affect things? How much are they going to get paid and when? And what are they supposed to deliver and when? And that it's a work made for hire. And,

yeah, and that's basically it. I have a bunch of legal forms available. If you don't mind, I'll make a little plug. If you go to podcastlawforms.com, there's a handbooking There's the free podcast release form that I offer everybody. I'm on a crusade. I want everybody to use that release form. But there's also a few other kinds of forms on there that people can purchase for, I think, very modest prices. Including the work for hire.

You know, I have to go look and verify that there's, I know there's an independent contractor agreement on there. I don't know if I have one sort of specific to the editor or the show notes writer, but I probably should add that in. I just gave you a business idea. Yeah, now we're partners. We're partners. No, we're not. So sticking with contracts, let's say that I've worked out a sponsorship deal for my show.

How does that contract work? Would they give me a contract? Would I give them a contract? Are we working on this together? How does that work? Well, sometimes both parties will have the contract that they want to use. and you either choose one or you agree to sign both of them and let the chips fall where they may if something is different between the two.

I recommend that if you're the seller of a product or service, in this case, the advertising service, you should use your form, your contract, and say, okay, here are the terms and conditions under which we will run your ads against our show for how long, you know, again, you know, how many, you probably need to say how many listeners, maybe you're not guaranteeing listeners. You know, there's, there can be a lot of wiggle room in these things. But we do a podcast for this many listeners each week and we will give you your ad in the next five episodes or whatever for X dollars. It can be really that simple.

How long is the ad who provides it? Is it a host read or do we provide a recording? You know, all those kinds of things need to be worked out. But, yeah, the advertising contract isn't all that complex. get into weird things where for some reason the ad doesn't get included in an episode, then you have to sort of make it up on the other, on the back end of the order, those kinds of things. But these are all, you know, pretty standard in the advertising space. And yeah, the forms that the, you don't have to invent the wheel.

Template forms do exist for all this stuff. Good to know. Yes. And I include a sponsorship example contract in my last episode. So you can go check that out. if I wanted to hold a giveaway for my listeners, like give away a free book to a random listener, is this fine? I know that there are some rules about contests. So if it's giving away for free, they don't have to pay for an entry. They would maybe like have to enter like their email or something.

Yeah. Generally I think that's okay. I mean, if it's a contest, you know, I'm not really an expert. on this area. My recollection is that if it's not a game of skill, I'm going to get this messed up. But no, basically I think what you're describing is okay

as long as there's either no entry fee or no skill involved. Just a few more questions. So if we have a website for our podcast, what are the policies that need to be on there right now? And are there free ones available, like templates that we can use? So every website needs to have nowadays a privacy policy and a terms of service.

The terms of service isn't as critical, but the privacy policy is absolutely a requirement. And the reason for that is that the state of California has a very strict privacy rule that requires that any website that anybody in the state of California might view has to have a privacy policy. And it just basically says, you know, what data you gather about what and why and and how it's going to be stored and operate. And you may remember back in, in early 2018, there was a big brouhaha and every, all the operators of email lists and websites and so on all had you come and review their website policies. GDPR.

It was like Armageddon over here in Europe. It was May of. and everybody was doing it. And it was, yeah, it was a big deal. So that also requires that every website have a compliant privacy policy. So that's the one. The next is the terms of service. It's very important, but not absolutely required,

that you essentially set up the agreement, the contract between every visitor of your website and you. And you want to be able to disclaim certain things and not make promises about the content being entirely 100% accurate all the time, just in case. Something, you know, gets weird. So you need a privacy policy in terms of service. And then sometimes, depending on the kind of website, you may need a disclaimer or disclaimer page.

If you're talking, if you're selling services or goods, you may want to have an earnings disclaimer, explaining your results may vary from what we're promoting here, those kinds of things. So this is an area that it calls for a little research, I would say. The privacy policy is an absolute must. And I think there are templates of GDPR and California compliant privacy policies out there. What I want to say is anytime you're using a template, there's a risk because, let's face it, no two businesses, no two websites are exactly the same. That's a whole point. So you want to make sure that it actually matches up with your business operations.

And GDPR, the rules are very tight. You have to do things a certain way and just make certain kinds of disclosures about what plugins does your website use and what data is collected and how and where does it go. And I think this is one of those things that really needs to be a little more customized than just relying on a basic template.

And there are some template services, or not sort of template service, but services out there that will sort of custom craft a GDPA. GDPR policy for you. And if you have a big business website, so I would say this is where you hire a lawyer to do it for you to make sure you get it right. Yeah. For anyone who doesn't know what we're talking about when we say GDPR, there's not really an easy way to just. I can take a way out. It's the general data protection regulation. It was enacted by the European part, the EU parliament in, it was actually enacted a couple of years ago. And it went into effect.

at the end of May of 2018. And it has a set of rules and restrictions. It explains exactly what the member of the public who comes to a website or signs up for a, you know, buys something from your business online. It, what they have a right to expect in terms of how their data, information about them, is collected, treated, and disposed of. And so the GDPR privacy policy is the document that, discloses to the person, here's what we do with your stuff.

And because every website operates a little differently, it's important to custom tailor that for your business. Right. And it also is related to email as well and how you collect signatures, right? Could you speak to that? Yeah. Well, if you're setting up a form on your website to collect people's information, again, you have to be able to link them to this privacy policy directly from that form.

and before they have to opt in, they should be able to tell, is this something I want to do? Do I want my data being handled this way? And something as simple as a first name and an email address is considered valuable personal data that the GDPR regulates and governs. So could you just like include your policy, your privacy, like a link to your privacy policy in the pop-up? and is that sufficient? That's actually the best practice. Yeah. Okay.

I'm just trying to think of a way to make it very easy for somebody who they're like, you know what, I just wanted to start a podcast to talk to people about hot air ballooning. And I have no intention of monetizing. And I want to have their email address so we can like communicate. Why am I being burdened with all of this stuff? I'm not doing anything with anyone's data. Except that you are. And a lot of people don't even realize that they're doing things with people's data.

The fact of it is when you visit a website, your browser, whether it's your phone or your computer or whatever, actually transmits information about what IP address you're coming from, what state, country, whatever you're in, and which browser you're using and the website is collecting in that information and dropping a cookie on your website, on your browser so that when you come back, it'll remember what you've seen and not seen and those kinds of things. and maybe to advertise information to you, those kinds of things. So there's a lot of this going on in the background, the average user doesn't even realize. And that's what the GDPR was really trying to, I think trying to do is to open people's eyes and say, look, your data's out there and it's being collected and they're going to use it to sell you stuff or worse.

And we want everybody to know about that. So if you are operating a website, this is a price of doing business. You've got to do this, unless you want to just block access from the entire European Union. Or pay a fine, I guess. Potentially. Yeah, the fines can be released deep.

Now, so far, they're going after the big guys, the Googles, the Facebooks and, you know, who are slow, but slow to get on the wagon here and do things. But, you know, it's possible that they would come after somebody smaller to set an example. And, you know, that's the thing. Thank you so much for talking to me today, Gordon. If people want to find out more about you and your book and your podcast and your services, what's the best place to reach you? Well, you can find my main entertainment law website at firemark.com.

And the forms that I mentioned earlier, the podcastlawforms.com, is a great place to go. And if you're interested in my e-book on the subject, it's called the podcast blog and new media producer's legal survival guide, and it is available at podcastlawbook.com. Thank you so much, and I will see you at Podcast Movement. I look forward to it. Thanks, Sarah. I feel like we just went through three years of law school. We've hacked so much in. Also, I think I said that I included a sample sponsorship contract in the last episode. That was actually episode 16 with Jessica Cupperman.

Oh, my gosh. Podcasting is still a bit wild west with lots of solopreneurs setting up shop to help podcasters edit and write and create social media posts and all these other things. Did you know that you need in agreement that this content actually belongs to you? What was your number one takeaway from today's episode? Find me on Instagram and let me know. I'm at Sarah Micatel. If you are listening to this in the future and Instagram no longer exists. I hope that means that the world has become a more harmonious place and that we're spending less time on social media and meeting with more people in reality. If that is the case, feel free to get in touch with me via my website at sarahmicatel.com

or on my travel website, postcardacademy.com. Actually, come say hi to me wherever you want. Thank you for listening to podcasting step by step. You are now one step closer to launching that podcast you've been dreaming about, but I want to get you even closer. I created a free guidebook for you with actionable worksheets called Eight Mistakes New Podcasters Make and How to Fix Them. To find that, head on over to sarahmicatel.com slash fix. Do you ever go blank or start rambling when someone puts you on the spot?

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