Podcasting and the Law – An Interview with Entertainment Attorney Gordon Firemark,The Podcast Lawyer
Podcasting is a great medium and more popular than ever, with some unique benefits. You can personally deliver timely information on relevant topics to your audience, build your online presence and open your entrepreneurship to new possibilities. However, it’s very easy to overlook the legal issues that may arise. Whether you’re a podcast host who creates content as a hobby, or use your podcast professionally, you should have a basic understanding of certain areas of law, including what to do if you need legal representation without feeling overwhelmed.
Gordon Firemark, Esq. Photo Courtesy: Gordon Firemark, Esq.
This week, I spoke with Gordon Firemark, Esq., an entertainment and media Lawyer, and the founder and CEO of The Podcast Lawyer™. Firemark has practiced entertainment and media law for nearly 30 years, helping creative industry professionals in all podcasts affairs, including copyrights, trademarks, and corporate matters.
He is also the author of ‘The Podcast, Blog & New Media Producer's Legal Survival Guide’ and a podcaster himself. Since 2009, he has produced and hosted the “Entertainment Law Update Podcast,” which provides a monthly roundup of news and commentary about the field of entertainment law for artists, lawyers, and other professionals in the industry.
During our conversation, which has been edited and condensed for clarity and style, Firemark, Esq. talks about media law, addresses some important legal questions podcasteres usually forget to think about, and whether a media attorney may be right for you.
Q.: Can you talk a little about your background and practice?
“My name is Gordon Firemark. I am an entertainment lawyer. I have been practicing entertainment law for 29 years, that's since 1992. My practice is devoted to representing creatives and businesses in the fields of film, television, live theater, and podcasting. I become known as the podcast lawyer because I am a podcaster myself as well as a lawyer helping those kinds of folks.”
Q.: What is your mission as a Lawyer and as a Podcaster?
“As a lawyer, my mission is just that, to help creative and business folks realize their dreams, achieve all they set out to do, to get their message out and strike the impact that they desire by making smart deals that make sense and protecting themselves against interlopers who would steal their intellectual property, or threaten their businesses.
As a podcaster, my main goal has been to establish myself as an expert and position myself in the space as the go to resource for that kind of work. My podcast is called ‘Entertainment Law Update’ and it is aimed at educating the public, other lawyers and law students about the field of entertainment law with the cases and developments in the field.”
Q.: Why does a podcast host need to be concerned about legal issues?
“Well, podcasting is just like any other kind of media production. It is a business, even though you may be doing it as a hobby, you are entering into a space where you are likely to be interacting with other people and their intellectual property as well as the need to protect your own intellectual property.”
Q.: What are some legal steps podcasters often forget about when they start a podcast?
“My first answer to that is, podcasters need to have their guests sign a release, giving them consent, to make the recording and to use it. That consent needs to be irrevocable, it needs to state all of the various nature and kinds of uses that may be made of the material, whether or not there's any kind of compensation that the guest would be entitled to, as well as addressing the possibility that the guest might later wish to have the material taken down and those kinds of things. So establishing ownership of the content and full control in favor of the podcaster. That's why podcasters need to use a release form.”
Q.: Should podcasts ask guests to sign a release form after the fact?
“I don't think it's worthwhile or wise to go back too far in time. If you recorded somebody yesterday or the day before, and you want to use their performance, then certainly go ahead and ask them. But reaching back weeks and months and years doesn't make a lot of sense because it'll just reopen questions and issues that may have been settled. So ‘let the sleeping dog lie’ is my advice.”
Q.: Should a podcaster obtain a release from callers to a live call-in-show?
“With live call ins, it's difficult because you can't ask them to sign something and send it back to you before they come on the air. What you can do though, as they come on the show, just say, ‘hey, we're recording this and you're on the air. Are you okay with all that?’ and leave it at that.”
Q.: What should a podcaster do if their guest wants them to take their episode of the air?
“Consider seriously whether there's a good reason to take it off the air, if the guest is somehow threatened in their personal life or their business, because they've gone public with something they shouldn't, or because they're revealing information that could lead a stalker to finding them, or those kinds of things - It may make good sense to take it down. As journalists, and I think we are journalists as podcasters, we should be thinking hard about maintaining the integrity of our work and keeping our feeds intact by not taking down episodes without a good reason. Of course, when you have that release, signed and in place, it gives you the discretion to make that decision for yourself and not have to cave in to the demands of a disgruntled former guest or something like that.”
Q.: We continue to be in election mode in New Jersey - should candidates and other public officials think twice before they go onto a podcast? In other words, are there different rules for public officials who give podcast interviews?
“There are some different rules for public officials – it's a lot harder for a public official, or a public figure, to prove a case of libel that has a defamation false statement about a person that hurts their reputation.Because they are public figures, they have access to the media and the stage essentially. The law treats them a little differently and requires that they prove not just that the false statement was published, but that at the time it was published the podcaster, or the journalist knew or should have knew that it was false, or should have known because they didn't take proper regard for the truth or falsity of the question. So yes, the rules are a little different for public officials. Does that mean they should take special care or think twice about going on a podcast interview? Not really. I think it's important that politicians, or anybody who's going on a podcast should be thoughtful about what they say, and probably not fly by the seat of their pants. Most people in the public eye have advisors helping them to make sure that their messaging is consistent with what they're trying to accomplish. They should be thoughtful about it. But I don't know that there's any reason to be afraid or concerned about going on a podcast, unless, of course, the podcaster or the host, or the nature of the interview is going to be a negative perception negative portrayal of them.”
Q.: There is a misconception among Podcasters that if they are not a member of the Journalist body, they can’t be held liable to the same standard that a Journalist can? Can you share some facts on this?
“The simple fact is, there's really no difference between a journalist and an individual citizen. If you do things wrong, if you publish that false information, or you invade someone's privacy, then you are going to be held liable. If that person who's been aggrieved, violated, feels that it's necessary to file a lawsuit, they will certainly do so. Actually, some journalists have some additional benefits, because they don't have to reveal their sources and those kinds of things. Whereas a person who doesn't identify as a journalist might be subject to actually more scrutiny in these situations.”
Q.: Should guests ask Podcasters if they are a Journalist, or credentialed Journalist before agreeing to an interview?
“It's not not a bad idea, I suppose to find out who you're dealing with. Does that mean that you should only give interviews with credential journalists? I think not. Getting a credential isn't always that easy. Some government agencies that give credentials, usually the local police department or the city, may look askance at a podcaster and decide for some reason not to give a credential to a podcaster, because they're not associated with a major, old style media outlet. I think that's changing, and I think the law supports the idea that podcasters can be journalists. We shouldn't make a decision solely on the basis of whether a podcaster is a member of the profession of journalism, or whether they're credential journalists. It's certainly worth asking and finding out what we can about them. So that we kind of understand who we're dealing with.”
Q.: Should podcasters learn to fact check their work, prior to disclosing someone’s private information?
“I'm going to treat that as a two part question. The first part – ‘Should podcasters learn fact check their work?’ - The answer to that is absolutely yes. Fact checking is how you avoid the most common kinds of claims that are made against media productions. Because truth is a defense to libel and slander claims, it's very important that Podcasters are able to verify the truth of what they're publishing and reporting. I would say even to the point that if someone is a guest on a show, and they say something about a third party, if that material could be harmful and can be fact checked, it should be fact checked. If it's an expression of an opinion, then it should be expressed as so and couched in terms of opinion.
Should podcasters do this prior to disclosing someone's private information? If it's private information, it shouldn't be disclosed. What private information is and whether or not it's newsworthy and should be made public is a question for journalists to pay attention to. ‘Is the newsworthiness in the public interest?’ These are the kinds of issues that we have to consider. The ultimate question is – ‘Would a jury find it offensive that this information was made public?’ Some kinds of information are very, very private. I'm referring to health information, education related information, and what goes on inside the bedroom. Basically, these are the most private kinds of things that we have. They shouldn't be disclosed. Unless there's a very good reason, of course, when a politician engages in bedroom activities outside of marriage, or that involve people with whom they shouldn't be interacting. Then we have newsworthiness because the politicians' suitability for holding off office becomes the question. So we have to make an analysis on each individual situation.”
Q.: What should a podcaster do if they get a cease and desist letter?
“First off, they should not panic. A cease and desist letter itself doesn't carry any force of law or weight of law. It is a warning, it is a threat, it is a demand for something and we need to consider seriously whether or not to comply with that demand, and what complying with that demand might mean in terms of implications for future claims from the senders of a cease and desist letter. The best advice is, if you get a cease and desist letter, then it’s definitely time to be talking to a lawyer who can evaluate your risk and liability and can handle the process of responding so as not to expose you to additional liability or to enhance the case because what you say in response to a cease and desist letter can be used as evidence.”
Q.: Can you talk about the importance of having a co-host(s), co-creator(s) agreement?
“I refer to this as the podcast prenup. Whenever you are getting into a relationship of creation with others, you are opening up the possibilities of challenges relating to ownership and control of the venture, as well as the revenues derived from the use of that material. When you're co-creating something, you are essentially making a jointly owned thing – whether it's an episode or an artwork, or a screenplay, whatever it is you're doing in collaboration, you need to have a clear explanation and delineation of the relationship and how things will be allocated and apportioned.
If the intention is - ‘it's my show, I'm just having you come on as a guest,’ then you should use a release. ‘It's my show, but I want you to come on as a co host for the next while,’ then you should again have a contract that specifies what the co-host gets in exchange for coming on and doing their work. That may not be ownership; it may be some form of compensation, it may be just the exposure and publicity, the bragging rights to say that you are a podcast co-host, or they may be partners. You can document these things in a number of different ways depending on the intention behind that. It's definitely important to have what I call a ‘podcast prenup’ to clarify and document the nature of the relationship between the multiple parties involved in the creation of a podcast. That's not just co-hosts or guests – it's also anybody else who's involved in the production process. You should have something in writing, so that the agreements are clear with everyone involved in the making of your show.”
Q.: Let’s say that someone has a successful podcast and they want to transfer their rights to a new owner – can a podcast be transferred with previously aired episodes to a new owner?
“Absolutely. Podcasts can be bought and sold just like any other business, and a podcast should be thought of as a business. If you have an eye toward an exit strategy like selling, then I think it's important to create a business entity early on and make sure all of the assets including all episodes, and all of the contracts with the various personnel are inside the company. That makes it much easier to make that transfer.
The episodes of a podcast are assets of the business just like office equipment or customer lists. An important factor is that the audience of a podcast is the most valuable asset and that is essentially the RSS feed. So ownership of that RSS feed should be documented very carefully. Both in those prenup agreements that I was referring to as well as in the making of any kind of a transaction to sell, or buy a podcast.”
Q.: Most podcasters who host content on platforms like Anchor, are not aware that such platforms are not policing one’s podcast – What should a podcaster do if someone is pirating their podcast?
“This is another situation where I'd say it's probably a good idea to consult a lawyer. Most platforms like anchor and Spotify, and all of them really, have an established process under the Digital Millennium Copyright Act. That's the DMCA for material to be taken down if there's an allegation of infringement.
The owner of copyrighted material that's being infringed by another has the right to send a formal notice, sometimes through an online forum, sometimes through a letter to get that material taken down. Then there's a whole procedure for either getting it put back up,
and then the parties can sue or leave it down. That's step number one. If it continues to be a problem, then filing a lawsuit against the podcasters, the people who are infringing, or pirating is the next step.”
Q.: Most people, including lawyers and even Judges can get confused at times by ‘fair use’ and ‘copyrights’. Can you talk a little bit about the difference of copyright and fair use in context to podcasting?
“Copyright is a body of law that provides to the owner of an original work of expression. That owner has the right to make a distribution, perform display and make derivative works based on the original work. Anybody who does these things without permission is infringing on that copyright. That's the answer plain and simple.
‘Fair use’ is a recognition by the courts and now by the Congress, that’s a law that says you can't copy that thing, or you can't make a work based on that thing that preceded it, might sometimes violate the First Amendment free speech and freedom of the press.
The courts created this very complicated four factor balancing test that considers all these four factors on a case by case basis to determine whether or not the work is a fair use, or whether it is copyright infringement.
Fair use is a defense that is brought forward in copyright lawsuits by a defendant who believes that their use was appropriate under the circumstances and as for factors very quickly are the nature and character of the alleged infringing work, whether it's educational, or artistic or commercial, or, or criticism and commentary will affect which side of the scale tips the balance.
The second factor is the nature of the original work - ‘Is it a commercial kind of work? Is it an artistic work?’ There are a number of different ways of looking at this factor, that will affect which way the scale balances.
The third factor is the amount and substantiality of what was taken, and that's where a lot of people get this misconception, that they can use a little bit, or that they can use 15 seconds of a song and those kinds of things.There are no such rules of thumb, where each case needs to be evaluated in and of itself, because you can take the substance of the song in a very small snippet, or you can use a lot of it, but not take that much. We have to analyze and weigh the amount and substantiality of things.
The fourth factor is the market impact – the impact on the market for or the value of the original work. Then we sort of overlay all of that with a discussion of whether or not the new use is really transformative of the old, or is it similar in nature, or a substitute for it, and if it's transformative, we're more likely to be looking at fair use.”
Q.: A lot of podcasters seem to use fair use music, take a quote from a movie, a photograph, an illustration, logo, or sound effect - can they do that?
“The answer to this question comes from the previous. If it's a fair use, it is okay, but we have to do an analysis on each and in each individual instance. We can't just rely on a blanket rule. The advice generally is ‘don't rely on fair use’ because that's a defense. That means that by the time you're duking it out, over this question of fair use, you're involved in a lawsuit at tremendous expense with lawyers and and judges and the whole routine.”
Q.: International Podcasting - are there different rules for foreign countries?
“Every country has its own laws, most of them are very similar. There is an International treaty on copyright protection that essentially says that countries have to respect the copyright law of their other countries that are signatory to the treaty. One major area is that no other country that has a First Amendment, and therefore many other countries don't recognize that kind of freedom of speech and therefore fair use in the same way that the United States does.”
Q.: What if a podcast host asks a question and the guest answers it by disclosing private information about someone? Is the podcast host as the publisher going to get sued? Or is it both, the podcaster and the guest?
“The short answer is lawyers will sue everybody and let it sort of sort itself out as time goes by. So yes, the podcaster as the publisher of the material would be liable. That's why you need to do your fact checking and verify things, so that you know, it's not defamatory. That's why you need to analyze whether or not this information that's being disclosed is newsworthy as a matter of public interest, and or whether a jury would conclude that it's an offensive thing to publish that material.”
Q.: If someone who’s been a podcaster for some time now, who has not thought about, or had a chance to implement some of these items, should they panic? Or can they start making legal changes now?
“I think the latter – get started now. You can't change the past. Fix what you can and move forward in a more safe and secure manner.”
Q.: Podcasting is a business that is maturing - some major companies engaged in podcasting are expected to earn over $50 million from podcasting this year, overtaking radio in terms of sponsorship income. Should Podcasters prepare legally for what's to come?
“Absolutely. As more and more of the larger platforms get larger, and as more and more shows get acquired by platforms and networks, it's important that you have your legal ducks in a row, so that you're ready when that opportunity comes along. Even if you don't have a plan to sell out, or to make an exit strategy of sorts. It makes sense to form a business entity to protect and shield your personal property and assets from your business. Your podcast related stuff - it makes sense to register your copyrights and trademarks to protect your intellectual property so that you don't get undermined or undercut by others using the same kind of material in competing ways. It's important to make sure that your contracts with your team, your podcast prenup, as I mentioned, or your co-hosts and all the people involved in the making of your show should have written contracts, it's important to get your team structures in order. And it's important to have documentation of your contracts and deals with your sponsors, or however you decide to monetize the show.”
Q.: Do you think this is something that we’ll see moving forward? Are there any statutory limitations set in place how far one can go when looking to file for a lawsuit?
“Lawsuits for various kinds of claims are going to be subject to statutes of limitation. That means that a copyright claim, for example, would have to be filed within three years of the infringement or at least when the owner of the copyright learned of the infringement. You can't go back forever in time, you can only sue for the most recent three years of infringement damages. In privacy and defamation, every state is going to treat that a little differently. You need to check and verify before you file lawsuits, that the statute of limitations hasn't run out. Best thing is if you learn about a violation of your rights, or some kind of an infringement, act on it quickly, don't sit on your hands and wait around for too long, because some of these statutes of limitations can be as short as a year, and in some instances even shorter.”
Q.: I would like to talk about advertising revenues for a moment. More specific about the type of ads a podcaster is allowed to run, such as ‘liquor,’ or 'CBD' ads. Can you talk a little about this?
“There aren't exactly any restrictions on the nature of the kind of advertising that podcasters can do, unlike the broadcast world where the broadcast radio spectrum is a public trust, where stations and networks are licensed by the government. Anybody who wants to can start a podcast, because you're not using any of those public resources, and the government doesn't have as much interest in regulating the nature of the ads. As long as the ads aren't deceptive, and aren't calling for a crime to be committed, then you're okay. ‘Can an advertisement have a liquor or tobacco or CBD product in mind when you do a podcast?’ Absolutely. However, check in your local area. If you're doing a local show directed at a local audience, and the product is illegal in that community, you may be advocating or promoting an illegal substance, and you could have some issues, you might win, but you can still have a fight about it.”
Q.: Do podcasters in certain states have to be incorporated in order to run ads, or any type of sponsorships?
“Short answer is no, you're not required to be incorporated. As far as I know, there's no government basis for requiring it. However, there may be some places where in order to receive payments, you need to provide a tax identification number. That's because of course, the government has an interest in getting paid when you get paid. For example, in New Jersey, I understand that you have to provide your tax ID number in order to receive PayPal payments, for example, and that's perfectly within the rights of the states, but they can't require you to have a corporation or, a limited liability company or anything like that. If you're a sole proprietor, you should be able to tell them that and provide your personal tax information.”
Q.: Podcasting is an international - and space - form of media. Can you talk a little about some of the legal implications people forget?
“We're crossing state borders, international borders, and the laws of privacy and defamation, copyrights, and trademarks are different from nation to nation. We need to be mindful of that and think hard about what we're doing. That said, if you know where most of your audience is located, that's what you should be thinking most about. Don't rely on fair use if you are located outside the United States, or if the owner of the content you plan to use is located outside the United States, and there's some way for that nation's courts to exercise jurisdiction over you, then you could still have a problem.”
Q.: Hear impaired community have been suing the podcast community for close capturing. Do Independent podcasters need to comply with (Americans with Disabilities Act) ADA?
“I don't think the courts have ruled yet that it's an absolute necessity for every independent podcaster to comply with closed captioning. These lawsuits are against the big companies in the space, and the outcomes of those lawsuits will definitely be setting the standard of care and standard expectation for what podcasters will need to do. It's important that we as podcasters, reach out to the big companies and participate if we can, in approaching those cases and how those cases are settled.
The Americans with Disabilities Act, which applies by the way beyond just the hearing impaired community, but to people with all sorts of disabilities, requires that you make reasonable accommodations, so that people with disabilities can do business with you; purchase your materials, your products, your services, or consume your content, so providing some text based form of audio material makes good sense. That could be captioned video, it could be a separate captioning track, or it could be a transcript. The good news is that transcripts are relatively easy and affordable these days. I think a machine transcript is probably good enough, unless you know that it's bad. You've got to find the best machine transcription you can.”
Q.: Does deepfake litigations risk apply only to companies, or does it also apply to someone who starts a podcast out of their basement?
“Deep fake is a relatively new technology that allows for us to essentially create the false impression that somebody has said or done something or worn something.
It's really not any different than older technology such as Photoshop or editing of content in order to create a false impression. We do need to think hard about the way we use technology. We shouldn't be putting words in people's mouths and we shouldn't be creating false implications or impressions about them. We could be liable, and yes, it applies to the independent Podcasters as well as companies. We definitely want to think about this and be in integrity about these kinds of things.”
Q.: Can you talk about the importance of trademarking the podcast title and logo. Is this an easy process?
“Trademark law protects distinctive words, phrases, symbols or logos, which are called marks. Your brand is your mark.The title of your podcast can and often is a trademark or service mark, because you're providing an entertainment or information service. We want to protect the name so that no other podcast can come up and adopt the same title. The process for doing that is the trademark registration. It is not a simple process, but it is not rocket science either. It is generally the kind of thing that people should use a lawyer for unless they are well educated and understand the process of registering trademarks, because it's easy to fall into some of the little pitfalls and traps. I have a course where I teach podcasters how to do just these kinds of things. It's called ‘Easy Legal for Podcasters.’ I do a walk through the processes involved in establishing a company, protecting intellectual property, and making contracts related to the monetization of the podcast/program.”
Q.: Can someone trademark a name and logo of another person if it’s not trademarked?
“No, you can't. You have to be using the brand in interstate commerce here in the United States in order to register a trademark. You can't sort of preemptively stop somebody else from using their brand or name unless you are also using it first, because trademark law protects the rights of the first user in interstate commerce.”
Q.: You have a FB page and run a FB Legit Podcast Pro Group. Can you talk about it?
“I have a Facebook page for podcasters who are serious about treating their podcast professionally. It's called ‘Legit Podcast Pro.’ Anybody who is interested in podcasting and wants to take it seriously and treat things right can join. You'll be added on a mailing list, and you'll be invited into the group, where we will be talking about all the kinds of issues we're talking about here today, but also, more practical discussions about monetizing podcasts or just approaching things in a professional manner. Even if you're an amateur, even if you don't intend to make money from your podcast, or make it your career, tweeting things professionally is a sign of seriousness and that you value what you're doing.”
Q.: Based on some of the things we've talked about today - what’s the importance for podcasters to retain or work with an entertainment attorney?
“I would say it's important as you get into doing these processes. If you're not educated enough about it, if you don't know how to do these things, and you're not the ‘Do It Yourself’ type, then using an attorney is really important. You essentially are trading money for your time and headaches. Hiring a lawyer can be very valuable. Do you have to have a lawyer? No, you can learn how to do these things yourself with a course like I've described, or you can learn it yourself. It's all a question of how much investment of time versus the investment of money that you want to make. If you're not sure about it, and you have questions that have legal implications, or could have legal implications, I think it's worth reaching out to somebody like myself, so that you can get answers that you can rely on, and feel confident that what you're doing moving forward by doing the right thing.”
Q.: For someone who is just starting out, but taking their podcast seriously, should they go into a FB group and take random people's advice?
“Of course not. Legal advice that you find in Facebook groups, or in any free forum really is worth exactly what you pay for it, and not a penny more. As someone who goes into those groups and does provide a lot of information, my goal in doing that is to make sure that the disinformation gets dispelled, and that folks have access to me and the information I provide so they can make informed thoughtful decisions about what they're doing.”
Q.: You have a book called ‘The Podcast, Blog & New Media Producer's Legal Survival Guide.’ Can you talk a little about it?
“When I started podcasting, I realized that there was not much out there in terms of the guidance for the legal aspects of this particular kind of media production. So I set out to create it for myself and for others. I wrote an e-book called‘The Podcast, Blog & New Media Producer's Legal Survival Guide.’It's about 10 years old now. But most of the rules and laws that are discussed in it are still the same, nothing has changed dramatically. It's a great resource for getting a foundational level knowledge about all of these copyrights in defamation and privacy and journalism and dealing with the government, the rules about advertising and endorsements, and those kinds of things.”
Q.: Do you have any upcoming events for Podcasters?
“At the moment, I don't have any immediate events coming up. But I would encourage folks to join ‘The Legit Podcast Pro Group,’ so that I can keep them informed about events when they come up. I will be launching a new class for ‘Easy Legal for Podcasters’ in the future. The best way to learn all about it and get a lot of preview information is by joining ‘The Legit Podcast Pro Group.’