The Legal World Behind Podcasts
In 2024 alone, more than 30 million podcast episodes were published, and over 500 million people were recorded as active listeners of podcasts. Needless to say, podcasts have become a very popular form of digital entertainment.
There are currently over three million active podcasts in the world, available in over 100 languages. In 2024 alone, more than 30 million podcast episodes were published, and over 500 million people were recorded as active listeners of podcasts. Needless to say, podcasts have become a very popular form of digital entertainment. As the number of podcasts available continues to rapidly increase, it is important to understand the legal rights and responsibilities behind podcast production.
The Most Common Podcast Model: Podcast Networks
Most podcasters are part of a podcast network, such as Wondery, iHeartRadio, or Radiotopia. When a podcast host signs a contract with a podcast network, the network is responsible for promoting the podcast across the network. The network usually provides additional resources for the hosts, such as podcast design specialists. One of the main benefits to joining a podcast network is that the podcast hosts gain access to the network’s advertisers, which is the primary way podcast hosts make money.
In most podcast networks, the network takes 30% of advertisement revenue, while the podcast host keeps 70%. The most common model of advertising is the cost per mile model, or CPM. This model is based on each 1,000 impressions, or downloads, of each particular podcast episode. For example, if an episode has received 10,000 downloads and the cost of each advertisement is $25, then the revenue from those advertisements would be $250. Networks and podcast hosts work together to negotiate advertisement prices, however, the average cost for a 30-second advertisement using the CPM model is $18, while the average cost of a 60-second advertisement is $25.
The length of the advertisement usually depends on its placement in an episode. Advertisements that play at the beginning of an episode range from 20 to 30 seconds. Advertisements in the middle of an episode are the longest, averaging 60 seconds. Advertisements played at the end of an episode are the shortest, playing around 10 to 20 seconds.
In order to join a podcast network, most networks require hosts to publish at least one episode a week and receive a minimum of 1,000 downloads per episode. While this requires consistency and determination on the hosts’ part, joining a network has its perks – providing credibility and stability for a podcast and its hosts.
The Self-Publishing Model
Some podcasters, especially those just starting out, will choose to self-publish their episodes. The process to self-publish is fairly straight-forward. Once an episode is recorded, a host must upload it to a podcast host site, such as Buzzsprout. A hosting site is different from a podcast network in that it is merely a place to upload a podcast, and there are no monetary, advertising, or resource benefits. However, a podcast host may be able to distribute the podcast episodes to podcast directories, such as Apple Podcasts, or Spotify.
If a podcast host self-publishes and wants to increase their podcast’s popularity in hopes of joining a podcast network, the host will need to promote the podcast themselves. This is usually done through social media and by reaching out to networks.
Podcast Legal Implications
Podcasts are governed by intellectual property law, specifically copyright and trademark law. A podcast’s domain name and episode titles can be trademarked, as well as an original symbol or featured icon of the podcast. A podcast host can obtain a trademark by filing the required documentation with the United States Patent and Trademark Office.
Copyright protection extends to the content of podcast episodes. Common law copyright protection is triggered once an original episode is fixed in a tangible form, such as a podcast recording. A work is fixed in a tangible form when it is written, drawn, or captured in a medium that allows the work to be perceived for more than a transitory duration. A copyright owner has the exclusive rights to reproduce, distribute, and publicly perform their work. However, podcast hosts must be careful about using current copyrighted material—like music—in episodes without a license to avoid copyright infringement liability.
Podcasters can register their content with the U.S. Copyright Office for further legal protection. This is recommended because a valid registration creates a record of ownership and enables a podcaster or network to sue any potential copyright infringers.
A self-publishing podcaster owns the copyright in their content, because that podcaster has no association or obligations to a network. However, copyright ownership of an episode with a podcaster under contract with a network is trickier. Podcast networks and podcast hosts can negotiate copyright ownership of episodes. Podcast rights between hosts, co-hosts, and networks can vary between contracts. Some networks, like Apple Podcasts, have their own specific copyright guidelines that creators are required to follow in order to be associated with the network. For example, Apple Podcasts requires hosts to flag episodes that use explicit language.
There are also guidelines for podcast hosts under contract with a network to follow when a guest is invited to speak on the podcast, which is one of the more popular podcast content models. Hosts must have all guests sign a guest release form in order for the host and the podcast network to remain in creative control of episodes that feature guests. This form helps hosts and networks retain the copyrights to episodes. It can also work to prevent any potential issues that may arise with a guest after recording a podcast. Some guests may be unhappy with the recording process, or the episode result, demanding the episode be edited to their satisfaction. Additionally, the form allows the podcast to use the guest’s name, image, and speech on not only on the podcast, but also on other marketing materials, or social media platforms where the podcast is promoted.
If a podcast host or network fails to have a guest sign a release form, this opens up the host and the network to the possibility of litigation as the guest could potentially pursue a suit for copyright infringement. However, even with a signed release form, podcasts are not completely shielded from liability.
Examples of Podcast Disputes
In 2018, several major record companies like Universal Music Group Recordings, Capitol Records, and Roc-A-Fella Records sued media companies iBusMedia and PokerNews for willful copyright infringement. The record companies alleged that iBusMedia and PokerNews were using copyrighted music without a license. iBusMedia owns PokerNews, which hosts podcasts that discuss the game of poker. Within these podcasts, PokerNews allegedly used clips of 46 copyrighted songs. The recording labels requested approximately $150,000 for each infringement, totaling around $6.9 million in damages, as well as a permanent injunction against both companies. The parties settled the dispute in 2020.
In 2023, two hosts of the podcast The Ugly Truth About the Girl Next Door were sued for defamation. One of the hosts is a woman, who, in conjunction with her therapist, re-tells the traumatic story of abuse she experienced as a young child. The podcast alleged several men of contributing to the woman’s abuse. One of the men accused sued both hosts, claiming he was falsely accused. The man, Calvin Kern, was not featured as a guest on the podcast, nor was he aware that he would be mentioned in an episode. As of publishing, the litigation is still ongoing. Kern has stated he hopes to go to trial and receive damages for the alleged defamation.
Conclusion
Although podcasting has recently become a popular career, there are complex legal factors involved in podcast creation. Securing a contract with a podcast network, navigating copyright and trademark laws to operate the podcast, contracting with brands for advertisements, guest releases, and potential copyright infringement liability are all important legal aspects of the podcast industry. Next time you listen to a podcast, consider the legal expertise behind the entertainment.
