Legal Tips for Podcasters

Best Practices | Intellectual Property | LLC

January 20, 2022

Fun fact: Previously known as “audio blogs.” Now, podcasts have quickly become this generation’s version of radio shows (and my personal favorite way to consume content). Since Apple introduced Podcasts on iTunes in 2005, the market for podcasts has only increased, and they have come to cover every topic from politics, to health, to murder mysteries. If you have a Podcast or are thinking of creating one, here are some legal tips for podcasters to help ensure your work is protected and you can reap the benefits of your podcast.

Branding

This falls under the category of intellectual property. And, it may be the most important asset of an influencer’s business. is what lawyers refer to as intellectual property. It means protecting your brand name (with trademarks) and your content (with copyrights).

Once you decide on a name for your show, it is important to check its availability to prevent the same name from being used by two separate entities. To check on your chosen name’s availability, you may search:

Trademark name database – www.uspto.gov
Local business registries
Google for any similar names being used

For more information on searching your name, download the pdf on www.draftedlegal.com/start-here. It’s paramount that you are not infringing on someone else’s intellectual property.

Once you have chosen an available name, you may want to consider trademarking your brand name. This costs a little bit more and usually involved hiring an attorney to make sure it’s done right. There’s no clear time on when to trademark, but as soon as your business has value, you want to start thinking about trademarking it so that you can protect the business.

You also want to protect the content you create. Although creators automatically have rights over their work by simply creating it, copyrighting provides the best protection. Podcasts potentially have two separate elements that a creator could copyright.

1. Copyright in the recording

2. Copyright in the material

Pro Tip: At a minimum, you want to have a compliant copyright notice on everything you create whether it’s show notes, a blog article, eBook, or otherwise. Scroll to the bottom of our page to mimic the proper format that US Copyright law requires to signal ownership of copyright.

If you were only producing the Podcast and were not involved in the material development, you would only be able to copyright the recording. However, if you produce and develop the material, you may copyright both elements.

For more information about copyrighting your Podcast, you can visit https://www.copyright.gov/registration

LLC Entity Protection

If you are planning on operating your Podcast as a business, you should want to consider starting an LLC. An LLC establishes your Podcast as a separate entity and works to protect you from personal liability. Although it is not necessary to establish an LLC, the extra layer of protection is helpful as you start collecting money from your Podcast, especially if you are working with another person.

If you are interested in creating an LLC for your Podcast, you will first need to register your LLC in the appropriate state and complete the necessary forms. Use Drafted Legal or an attorney.

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Guest Release

Once you have your Podcast set up, you may want to have special guests on your Podcast to discuss specific topics, and as such, you may wish to have your guest sign a release form. A Guest Release form is a written contract that protects your right to edit the session in any way that you wish as the creator. By outlining the expectations between you and your guests, this allows you to have complete control over what is produced and protects you from potential legal action from disgruntled guest stars.

A Guest Release will typically include language that explicitly allows a Podcaster to edit as they see fit and advertise the guest’s name as a speaker on the Podcast. However, these terms can be flexible, and you may tailor them to give your guest some creative control over the final product.

Advertiser Agreement

Many Podcasters receive a monetary commission for sponsoring items or companies on their Podcasts. Before agreeing, you should think about your content and your listeners and choose a sponsorship that best fits your goals. Once you have found a suitable sponsor, a few aspects will need to be decided on before you sign an advertising agreement.

1. Types of Ads

There are two main types of ads used in Podcasts

Host-Read Ad – This type of ad is read by the podcaster and is either pre-recorded or is mentioned during a live recording.
Programmatic Ad – This type of ad is pre-recorded by the sponsor and is digitally entered into the final podcast

2. Ad Placement

Typically, a sponsor will give the Podcaster the option of where to place the ad. There are three main terms associated with ad placement:

Pre-Roll Ad – An ad at the beginning of the Podcast
Mid-Roll Ad – An ad near the middle of the Podcast
Post-Roll Ad – An ad at the end of a Podcast

3. Ad Pricing

Another important aspect of your advertising agreement is pricing and payment. Sponsors will typically pay podcasters in one of three ways:

1. Cost Per Mile Rate (CPM). This is a flat standard rate based on listeners. Sponsors will typically pay for every 1,000 podcaster listeners.

2. Call to Action (CTA). This is when a Podcaster mentions a special URL or code during the podcast, and the sponsor pays the Podcaster for the number of visitors who use that special code.

3. Download. This is when a sponsor pays a podcaster based on the number of times a podcast has been downloaded.

Once the advertising agreement’s material terms have been agreed to, the terms will need to be memorialized in a written contract outlining the goals and expectations of the sponsorship.

Starting a podcast is a huge and awesome undertaking. Set yourself up for success by taking these important steps to make sure you are ready to scale and monetize all of your efforts when the opportunity presents itself.

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