Legal issues in podcasting

The Legal Point

My friend Woube Gebre and I started a podcast recently. For the 40 percent of readers who may not know what a podcast is, we started an online radio show that is available to listeners any time after we post it on the Internet, and it can be heard through phones, computers and other devices. In our podcast, we talk to each other and to guests about youth sports and other competitive activities on the Peninsula, such as football, basketball, swimming, softball, spelling bees, wrestling and horse shows. We record our podcast weekly in my office’s conference room, interview our guests by telephone and distribute our podcast on free platforms such as YouTube and Twitter.

We had been thinking about starting a podcast for a year or so, but family and work commitments delayed our entry into this growing area of entertainment. Finally, in January, we hired a friend who had recording equipment and the skill to patch telephone calls into that equipment to be our producer, asked another friend to be our first guest and then sat around a table on a Sunday afternoon and talked sports. Then, while our producer edited our recording into a podcast, Woube and I picked a name for our podcast, opened free accounts on Twitter, YouTube and Gmail, and selected intro and exit music. Within 24 hours of pushing the stop button on our recorder, we had the first “Pen Sports Podcast,” or “PSP,” as we like to call it, ready for listening. Once we posted our first episode online, we became podcasters.

Easy, right? Not quite. There are still many things we need to address to make our podcast the best that it can be (realistic goals only at the beginning). Some of these issues include finding listeners, improving our sound quality and on-air communications, finding a sponsor or 12 to cover our costs and allow us to expand our coverage and trying to prevent the sound of screeching brakes coming from a nearby intersection from being the third host on the podcast.

Then, of course, there are the legal issues. Podcasting carries legal risks that must be addressed upfront or those risks could become expensive legal problems and challenges down the road. Even though we are just starting, we already took several steps that all podcasters should take to avoid future challenges and problems.

First, we selected a unique name for our podcast on which we can secure trademark rights and protections. We certainly hope that our podcast will become very popular in the future, so we do not want others trading off that popularity. We also want to be sure that we can use our own name legally in media and markets other than podcasts like television shows or webinars and on goods like t-shirts and action figures.

Second, we formed a limited liability company (LLC) registered with the Virginia State Corporation Commission. This step cost us $100 plus some time to prepare the proper forms and an operating agreement (as both of us are members), but it is well worth the cost for the liability protection and tax benefits that operating as an LLC offers us.

Third, we are not using the hottest music recorded from iTunes as the intro and exit music on our episodes. Sure, we would like to start the show with clips from Bruce Springsteen or Kendrick Lamar that we copied off the Internet, but doing so would subject us to copyright infringement claims for each and every episode, claims that could result in six-figure damage awards against us. We then considered having Woube learn popular songs on his ukulele to play at the beginning and end of each episode, but even recording a popular song and playing it ourselves would get us sued. We also considered buying the proper licenses to use this kind of music or song, but that would cost money we do not have. So, we went with using music obtained from websites that license our use of generic music for free or just a small price. We want to draw attention to our podcast, but not the attention of copyright lawyers.

Finally, when we are recording, we take care to have reliable sources for facts that we relay, because uttering false statements that serve to diminish another’s reputation can lead to civil liability for defamation. Thanks to the U.S. Constitution, however, we can freely give our opinions on local events and participants without fear of such liability. And, while it generally is acceptable in the podcasting world to use profanity, neither one of us thinks it’s appropriate to do so when talking about kids playing sports.

In sum, while it is relatively easy to start a podcast—at least easy enough that Woube and I can do it—new podcasters must think and plan ahead to reduce the risk of certain legal challenges down the road.

Frank A. Edgar, Jr
About Frank A. Edgar, Jr 2 Articles
Frank A. Edgar Jr. is an attorney with the law firm of Goldstein, Edgar & Reagan in Newport News. He can be reached at faedgarjr@ibglaw.com or 757-873-8773.

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