The Flow: Episode 78 - The Legal Side of Podcasting
This week on The Flow, Katie is joined by The Podcast Lawyer™ himself, Gordon Firemark. We'll be talking all about the legal side of podcasting. What can you do? What shouldn't you do? And what are the best practices?
78 : The Flow: Episode 78 - The Legal Side of Podcasting
Ecamm Network
Podcasting, especially video podcasting, can be a great way to share your message with the world. There are so many things to learn and do, but it's hard to know where to start if you've never done it before.
Producing a podcast can initially seem daunting; it's easy to feel overwhelmed when starting something new. Using a Video First approach with Ecamm Live will make it much easier and save you lots of time.
The Flow is here to help. We'll take you step-by-step through creating a video podcast, from planning and production to promotion and monetization. You'll learn how to build an efficient workflow that will make your content shine, leaving you to focus on creating great content.
This week on The Flow, Katie is joined by The Podcast Lawyer™ himself, Gordon Firemark. We'll be talking all about the legal side of podcasting. What can you do? What shouldn't you do? And what are the best practices?
Gordon Firemark helps creatives, artists, entrepreneurs and others achieve the dream of getting their messages out and making a meaningful impact with their craft. He has practiced media, entertainment and business law since 1992 and is often referred to as The Podcast Lawyer™.
A podcaster himself, he’s been producing and hosting the Entertainment Law Update podcast since 2009, and in 2020, launched the More, Better, Faster podcast which offers insights and advice to creative professionals and businesses who want to achieve more, better, faster. Gordon is the author of the Podcast, Blog & New Media Producer’’s Legal Survival Guide and creator of several online courses for creatives.
His undergraduate degree in radio, television and film and experience in live theatre production informs his thinking about all things legal. In addition to his busy law practice, He teaches Entertainment Law at Columbia College Hollywood, Intellectual Property and Media Law at Fashion Institute of Design and Merchandising, and Contract law at Pepperdine Law School.
Find him online at https://gordonfiremark.com
Chapters 📖
00:00 - Countdown
00:27 - Intro
01:30 - Meet Gordon Firemark
04:31 - Important Legal Aspects Podcasters Need to be Thinking of
08:49 - Release Agreements
11:46 - How to Make Updates
13:12 - State by state vs. national vs. international
16:47 - Fair use in podcasting
23:11 - Commercial use
24:14 - Common legal issues
26:17 - "Podcast Prenup"
30:55 - Podcast Platforms
32:43 - AI and legal issues
36:31 - Co-hosts and guests
39:20 - Should I form an LLC?
41:30 - Trademarks
44:55 - Where to find Gordon Firemark
Welcome to The Flow. Created by Ecamm and hosted by Doc Rock and Katie Fawkes, this weekly show will take you step-by-step through the process of video podcasting. Our focus is on building efficient and effective workflows so that your content shines.
Welcome to The Flow. Created by Ecamm and hosted by Doc Rock and Katie Fawkes, this weekly video podcast will take you step-by-step through the process of video podcasting.
Want to see behind-the-scenes? Join the studio audience of our live recordings every Tuesday at 12 pm Eastern on YouTube.
This video podcast is powered by Ecamm. With Ecamm, you can plan, produce, and record your podcast, bring on co-hosts and interview guests, add graphics and animations, and much more. Ecamm makes podcasting easy. Try it today for free at https://ecamm.live
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Music.
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Happy flow day. Welcome back to another episode of the flow.
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I'm still hanging out sort of alone. Gordon is my co-host for today.
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Doc is still traveling and we'll be back again next week, but we've been covering
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all of the best topics while he's been gone.
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So welcome Gordon to the show. We're so excited that you are here today.
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Thanks for making the time. Oh, hi Katie.
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Yeah. Thanks for having me. It's great to be here. I'm really excited for this
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episode. I'm taking you kind of back a little bit into your past because I know
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you don't do this side of things as often now as you used to.
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But I've titled this episode, The Legal Side of Podcasting. And I have a bunch
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of questions to pick your brain about do's and don'ts in the world of podcasting
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as it comes to like, what are the rules?
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What are you allowed to do? And what are you not allowed to do?
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And what are we all missing?
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But before we jump in, can you give us a little bit of background on who you
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are and your shift from the world of law into the world of podcasting?
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Because it's kind of a cool story.
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Well, the name is Gordon Firemark, and they call me the podcast lawyer.
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And so it's less of a shift away from law as just a migration of my sort of
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focus. because I've been pointing
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my nose in the direction of podcasting since, gosh, the mid-2000s.
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2006, I think, I was watching Leo Laporte do his thing with Twit when he started up after Tech TV.
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And then I was fortunate enough to be invited to be a guest on a show that turned
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into a regular recurring thing.
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And that's how I got the podcasting bug and launched my own first show in 2009.
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And that's still going strong. We do a monthly legal news roundup.
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We just recorded 169th episode. Wow. Congrats. That's a lot of months under our belt.
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That is definitely a lot of months under your belt.
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Yeah. But when I got started in podcasting, being an entertainment and media
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lawyer going into it, I was looking for the right person.
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You know, what are the rules? What are the, what are the boundaries and knowing
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how to do entertainment law and what filmmakers and television producers and
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music producers have to deal with.
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I sort of knew the ropes, but I wanted to make sure I was on the right track
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for podcasts, specific digital media stuff.
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And I found that there were no such resources.
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So really, it's super hard to find anything. Well, I sat down and I,
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and I started putting together notes and memos and And that turned into a book
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that I wrote called The Podcast Blog and New Media Producers Legal Survival Guide.
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And it's getting a little long in the tooth too for an update,
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but it's been around for a while.
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And when you write a book, that's how you become an expert in the eyes of the public.
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And frankly, that's how you learn the things that you need to become an expert.
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So here I am. And, you know, all this time,
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I really have come at it as a way of
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serving the media creator community by providing as much knowledge and information
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as possible so they can do the things they need to do to bring a professionalism
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to the work that they're doing and protect themselves and respect the rights of others as well.
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So that's sort of my mission in life.
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Absolutely. Well, so incredibly needed, because I feel like when you step into
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the podcasting space, as you did all those years ago, there really doesn't feel
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like there is much you need to think about.
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But then there are all these kind of hidden things underneath as you start going.
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I mean, the first off the bat is obviously any kind of like music that you're
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using for your intros and your outros or even content that you're sharing.
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We talk about that a lot at Ecamm, like make sure that you're using copyright
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protected, you know, not copyright protected copyright free music to be able
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to make sure you don't get any strikes against you.
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But other than music, what are what are the sort of the, the main,
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say, like three to five, like the foundational things that podcasters should
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be thinking about that maybe they're not?
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Well, you know, a lot of it varies depending on the kind of podcasting you're
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doing, you know, genre to genre.
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If you know, if you're doing a music heavy show, then you've got all those music
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issues that you were referring to.
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Copyright law is sort of the foundational stuff that we think about in entertainment and media law.
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And it doesn't apply just to audio.
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It doesn't apply just to music. Even within audio, you know,
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that sound effects can be copyrighted. Yeah.
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And the painting or the poster that you have in the background of your shot,
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if you're doing video, could be a copyrighted image that needs some clearance and things.
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So that alone is a lot to think about.
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But then we get into, you know, true crime where we're talking about and perhaps
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accusing somebody of being the perpetrator of a crime.
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If you get that wrong and it's false and it hurts their reputation,
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you get into libel. libel defamation is the umbrella for libel and slander.
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And libel is what we get in this context.
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So, sort of knowing those rules and understanding those boundaries.
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There are privacy rules that come into play as well about not revealing stuff
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about a person that is inherently private information unless it's really a matter of public interest.
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And, you know, what medicine I take for
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my hair loss is probably not a matter
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of public well maybe for me it is but you know
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um uh you know
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people's health conditions their job reviews and educational history those kinds
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of things can be really very private information so uh we have to respect that
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and you know in the in the course of doing journalism sometimes you do want
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to reveal that stuff so you sort of have to understand the boundaries and,
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and be able to make the case for it.
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So that's really, you know, the key to all of this is what I was saying earlier,
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professionalism, being, being as professional in your approach to things as possible.
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And that means thinking like a professional planning, like a professional and,
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you know, acting like a professional doing the things that pros do.
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A lot of what I do with podcast creators and, and, and media creators in general
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is sort of help them structure their businesses so that they are protected and
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insulated from those liabilities and risks that can come up.
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So oftentimes we starting at the very beginning with, you know,
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should you form a limited liability company, an LLC for your, for your, your venture,
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if it's a standalone separate business from something else that you do,
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then you want to keep those things separate for the, for the, uh,
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uh, keep the risk separate, I should say.
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And then obviously, when you're working with a team, you've got contracts to think about,
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you know, you have an editor or a researcher who does work for you on your show,
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that person is bringing their creative talents to the end to the effort,
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and they might end up owning something.
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Their work or part of the whole work and so on if we're not careful so uh that
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that ownership question becomes an issue and also management and control who's
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in charge of this thing you know,
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so yeah oh my gosh my mind is swirling yeah i know i know a lot of podcasters
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have and we don't have this yet actually so i'm super guilty of this so if you're
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sitting in the chat you're you're not alone we we need to implement a lot of
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this but uh we have i have certainly been on a number of
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shows and I've heard people talking about the idea of having some kind of,
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you know, language within your guest registration or your guest signup process.
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If you're a podcast like this one that brings guests on, what is,
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you know, what is, I guess, best practice for making sure that you're covering
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yourself as you were just saying,
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you know, to be able to market and repurpose and use the content that that guest
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shared as part of your podcast,
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um, if you know, but I guess no matter where, no matter what kind of podcast
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you have, is there, is there a best practice there?
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Yeah. I mean, look, the, the, the best practice is always, always,
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always use a release, um.
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Agreement with your guests and that that release
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agreement would be essentially the guest giving their
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consent to be recorded again there's
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that privacy stuff right if you don't consent to being recorded yes we
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know we're being recorded but the consent in writing
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and irrevocable and those kinds of
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things there's a lot of you know nitty-gritty language that we
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have to get in there so the consent to be recorded the consent to have the recording
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used in the ways that you intend and And also I try to plan for the future because
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we don't always know that we're going to take excerpts from our podcast interviews
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and use them in writing a book or it's going to be the springboard for a feature
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film script that we write or something like that.
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So you want that all rights language to be in there.
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Yeah. The fact that they're not being compensated separately with money for
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the appearance, if that's the case, what you can and can't do with the recording.
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Can you use it in advertising? Can you use it for promotions?
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Um, and lately with AI coming into the equation, um, I actually just recently
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revised the standard podcast release form that I offer up to the world for free.
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Um, I revised it to add in a clause that says the, the guest consents to the
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use of AI in editing of the podcast.
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So long as we aren't changing the meaning or tone of the interview overall.
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Oh, interesting. We can't put words in somebody's mouth because that technology is here now, right?
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And I mean, I guess you could use some fancy editing tools to make it sound
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like I, you know, think the moon is made out of cheese.
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You know us, we're definitely going to do that later. Well, now that I said
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that, the outtake will be there.
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And it's interesting though because i you know there's a lot of um
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certainly you know there's a lot that can go into
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the editing process but then there are people like us who we
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record this show live so right now we're live streaming this
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recording out to youtube and people are contributing in
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from the comments and hanging out with us so there's there
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probably is something extra that we would need to add into that
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you know to that language and that agreement up front
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with our guests that says we can't like
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we could make edits certainly to the final like video that
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we release later and the audio that goes out through the podcast players but
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if there are you know outtakes as gordon was just joking about earlier there's
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not a lot we could do for the live recording other than take it down afterwards
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but obviously we can't take back you know what was said or done while live here
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on youtube so it's very hard to unring the bell yeah you can't unring the bell.
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So that, you know, that part, that part probably is also good to be really clear
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about what, what do you do if you're in like, if you're in our position where we definitely have.
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You know, some written language, but not, you know, certainly not to the extent
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of what you were just saying and certainly not what we need.
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Is it, you know, is it possible, is it something where you just want to apply
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those changes going forward?
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Or is it something that we should go back and, you know, let guests,
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former guests that were on the show before, you know, send them an agreement
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across or give them something in writing that says,
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you know, we're going to continue to repurpose and use this content
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unless you tell us otherwise yeah great question uh
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i generally don't recommend opening up
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the can of worms by going to past guests and so on you know this is the kind
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of thing where you you know look we improve our systems and our processes going
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forward and we do it and um and you know keep it simple of course if you were
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then going to go back and use that content from one of your guests for something that was sort of,
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you know, outside what's normally expected.
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You know, like if it turned into a feature film or you're going to use their
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clip in a major movie or something, then you go back and ask for the permission for that specific use.
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But, uh, um, you know, I, I don't know that it's worth the time and energy and
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trouble to go back to every past guest, especially if you've been doing it a
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while, that could be a lot of people to, yeah.
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So, you know, get the release form and start using it going forward.
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It's, I recommend just building it into the calendar scheduling part of the
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process and, uh, having them check a box and say, yes, I agree to these terms
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and I'd love to be on your show.
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Yeah. There's a, there's a great question coming in, uh, from the law library.
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I love this. Who says, uh, that you Gordon have formed templates available on
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your site. Are the templates state-specific?
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Most of them are not. And the good news here is while lawyers are licensed on
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a state-to-state basis, and the law does vary a little bit in some places and
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others, for example, there's something called the right of publicity,
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which is the right of a person to control commercial uses of their name and image and likeness.
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That right as a property right exists only in about half of the U.S.
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States and a handful of countries around the world.
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The right of privacy is much more widely accepted.
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It's pretty universal in the U.S., and many of the rules echo each other.
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But privacy isn't a property right, it's something else, and so it's treated a little differently.
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Anyway, the point being, we try to get the consent either way so that in a contract,
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and contract law is very universal.
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We have the rights we need in order to do it. So there's the call for the release
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and the other kind of contracts.
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Uh, you can do in contracts what the law, the default law of different states generally doesn't do.
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Um, copyright law also is a federal, uh, and to a certain extent,
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international legal, uh, structure.
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And so it doesn't change from state to state. So most of the, yeah, that is, yeah.
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I was just going to say that it is, it isn't interesting. I'm thinking Thinking
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even about, I do another podcast for fun with my best friend, but she's in Canada.
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And obviously we'd like everyone watching who has a podcast or a show,
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the content itself is international, right? You're putting it out.
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It's available technically globally.
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So yeah, that is interesting to think through the varying levels where there's
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some things that are state-by-state, there's some things that are federal.
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But then certainly the content that you're creating really does these days have
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an international reach. So
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you have to be thinking through what the implications are there as well.
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Yeah. So most of the forms and templates that I've created are aimed at the
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American audience and should handle things pretty well across all the state lines.
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And even with Canada, the one area that is sort of interesting is that in most
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countries, copyright law doesn't sort of distinguish this idea of a work made for hire that belongs
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to the employer and the independent contractor owning their own work in the same way that we do.
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So some of the contracts will specify that language about work made for hire
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and reference American law.
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And I've had folks in other countries just say, is it okay if I just delete
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that sentence? And that works out fine.
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That's good to know. Well, I have a personal benefit question.
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But hopefully it also helps the rest of the audience as well.
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So on my personal podcast, we're a movie review podcast.
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We review old movies, so movies from like the 80s and 90s.
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And we've we've struggled finding information as
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it pertains to fair use so like are
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we able to do things like you know
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have a have a reaction in our podcast to
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a trailer from a movie that was released in the 80s or
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90s if the trailer is you know publicly available it
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was used for marketing things like that i feel like get a little bit difficult
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to find information on and i'm sure other people have you know
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things where they're reacting to video content if the if the
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video is like out there and available and you're referencing it
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and you know you're not using that content or claiming that content
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to be your own what are the what are the rules around that well it's
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interesting they bring that up and and fair use really is the the mystery area
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that there is no definitive answer to whether a particular use is fair use until
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a judge or a jury decides and so that's one of the tricks to it so uh and this
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is one of those areas that is uniquely an american principle, fair use.
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Uh, some other countries have similar called fair dealing and it's fundamentally the same, but, um,
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what fair use is, is the, the way that the judges in the early part of the 20th
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century, and then the Congress brought into, into the newer copyright act at
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the end of the 20th century. Um.
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Address the conflict between a constitutional provision that says that Congress
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will make no law abridging freedom of speech, the First Amendment,
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with a law that says you can't copy that thing into your own work and make it
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part of your speech, right? So there's that inherent conflict.
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So the judges develop this fairly complicated four-part balancing test that
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you have to go through for each individual piece of material that is used if
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you're claiming fair fair use.
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And that you, we look at the nature and character of the allegedly infringing
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work and the purpose of the original and how is it transforming the meaning
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and purpose of the original work?
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Uh, how much in both quantity and quality, the amount and substance of what's
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taken and the fourth factor is the impact on the market or value of the original.
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So a lot of people mistranslate that into, well, I'm not making money from it,
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so it's okay. That's not what it means.
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Or I only took 10 seconds. But if it's the fundamental heart of the work,
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10 seconds, that's different, right? It matters. Yeah.
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So that's why we have to do that analysis on a case-by-case basis.
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And that's why when you ask lawyers, the answer will always be, well, it depends.
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Which is, I know, so satisfying. Thanks a lot, lawyers.
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And, you know, the bottom line is that it can be risky to rely on fair use in these scenarios.
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Now, some things we can, we can say with some degree of certainty.
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Look, if you're doing a movie review show, and you need to show a clip of the
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movie that you're going to react to in order to explain why you feel this way
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about the film, that's probably okay.
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Okay if it's a short clip you know 30 seconds from
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a three hour two hour movie is one thing 30 seconds
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from a 60 second video is a
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different story right that's the amount and substance portion um so movie reviews
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music reviews sometimes we see that but the the danger is that somehow the material
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becomes almost a substitute listening or viewing experience for the for the
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audience and that's where you're just not transforming it enough to be considered a fair use.
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Yeah. Yeah, I mean, that's worth considering too as you're, you know,
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I know many of you that are listening or watching are, you know, doing research,
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you know, demos or, you know, or reaction videos or things like that,
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um, on either a podcast or a show.
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So it's certainly worth considering and taking into account.
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You can't makes it really easy to do things like, um, like I know we do this
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for our show where you can use the widget overlay tool to be able to literally
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just drop a YouTube link in and it'll allow you to really easily and seamlessly
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play a video from YouTube.
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And again, that's the challenge of like, I, you I struggle with this all the
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time. We're like, we want to roll the trailer. And again, it's a trailer.
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It's a marketing piece, but it's so easy to do. But yeah, worth giving that thought about.
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I appreciate that. That's a great answer. answer I should also
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just say since I mentioned reaction videos this is you know you
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what we're talking about is where I don't know a YouTuber will
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be playing most of an episode of I don't know
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Shark Tank a friend of mine does the Shark Tank one and um
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you know he's there in a bubble on the screen talking
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over the stuff from time to time and reacting to it and he gets a lot of comments
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you know hey get out of the way and just let me watch the show things like that
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I'm just here for the show i don't want the reaction part yeah and and so but
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that the reactions are what transforms it and so yeah i don't think there's
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been a case where anybody has,
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proven one way or another whether it's actually fair use to do that but youtube.
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Um being the owner of the playground essentially they have mostly allowed those
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reaction videos under the theory that it probably is fair use.
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So just full disclosure.
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Yeah, I did. So I, I have played with, I, I don't do this consistently every
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episode, but I've played with, um,
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you know what we will do occasionally on our
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show is we'll start the episode by rolling the
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trailer and then um and then talk you know
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in depth about the movie itself and i've only in the
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maybe five times that we've done this across a year
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and a half of episodes we've only ever gotten one
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like i don't even think it was a strike it was like a some lighter version from
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youtube for the dirty dancing trailer because it played the song and i didn't
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even think about it and so we actually were We actually were in trouble for
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the song that played and not the actual trailer itself.
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So it is, yeah, it's worth thinking about.
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There's some great questions coming in. So let us ask. So again,
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from the Law Library. I love it.
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Are not the vast majority of podcasts at a basic level produced for commercial gain?
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How would this factor play out in a fair use balancing test?
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That's a great question.
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Well, again, that's not the real question. isn't, is it a commercial?
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Well, that, that factor comes in and the first factor, what's the purpose and
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character of the allegedly infringing use?
Speaker:
I will say that people mistake commercial gain for commercial purpose.
Speaker:
You know, if you are using the, the thing that you're taking and selling it
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directly, like offering tickets or behind a paywall or something,
Speaker:
that's going to be a commercial use.
Speaker:
But the fact that you post your video on YouTube or that you publish your podcast
Speaker:
and you have sponsors doesn't automatically make the content of the show commercial in nature.
Speaker:
You can still be commenting and reacting.
Speaker:
And look, you can have a documentary film that runs on television with commercials
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in between. It's still a documentary film.
Speaker:
It's not a commercial, right?
Speaker:
It's not a commercial. Yeah, gotcha. So when we talk about the commercial use,
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we're really thinking of sort of in connection with a.
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A transaction or an offer of selling something or something like that.
Speaker:
So the fact that it's ad supported doesn't make it inherently commercial in that regard.
Speaker:
That said, if all you're doing is bringing stuff in, so, you know,
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just filling the space between the ads, maybe it is something commercial.
Speaker:
And again, it's one of these, it depends scenarios, but I don't think that typically
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podcasts are viewed as inherently commercial works.
Speaker:
Works yeah that is a good clarification though because
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yeah you are right in that the majority of
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podcasts are like are trying to
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monetize right they are they're trying to be a business themselves or you know
Speaker:
or be someone's full-time job they're trying to be they're trying to make money
Speaker:
from them but that is a good clarifying point uh we have tatiana hanging out
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with us in the the live chat as a reminder this podcast is recorded live on
Speaker:
youtube so you can always hang Hang out with us in the live chat and ask your questions.
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Tatiana asks, if you were to teach college students about top five common legal
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issues that they should watch out for early in their careers, what would you share?
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Well, I think we've sort of talked about some of them. You know,
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watch out for other people's stuff. Make sure you're getting permission to get it in writing.
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Reading and understanding the contracts that you're signing is important, I would say.
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Oh, huge. Huge. I've made some mistakes there in my career for sure.
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Yeah. And a lot of folks coming out of school are really signing up for employment for the first time.
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And they may not have a lot of bargaining power, but they should still understand
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the contracts that they're signing.
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And even if there isn't actually a formal employment contract,
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understanding the sort of scope of things.
Speaker:
Confidentiality, nondisclosure agreements have become a pretty common thing
Speaker:
for young people doing internships and things like that.
Speaker:
So understand the boundaries of that and respecting that
Speaker:
because I've seen that come back to bite my students when
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they've gone and done an internship and then posted something on social media
Speaker:
and immediately gotten in trouble with the boss and things like that uh five
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boy what else um three yeah beware of the word partnership,
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you know it's a word we throw around a lot but it has legal meaning it means
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that you are co-owners co-creators co everything and sharing liability also so be a little more,
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cautious about throwing that term around. Having a partner means really,
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um, owning and being owned.
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Owning and being owned. I love that. That's the best.
Speaker:
Um, any kind of collaborative relationship, you know, we'll have those kinds of things.
Speaker:
So I, I encourage people to have those conversations and be clear about the
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intentions and understandings and most of the time to document that in writing as well.
Speaker:
In the podcasting world, I call it a podcast prenup. If you're working with
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co-hosts or co-producers or something like that,
Speaker:
make sure you have some clarity on who owns this thing and who's responsible
Speaker:
for what and who gets what money if there's money coming in.
Speaker:
That's actually a really, really good point. That's another thing we don't have.
Speaker:
Luis, cover your ears behind the scenes.
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That's another thing that we don't have that we should work out.
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How do we, you know, we talk all the time about, you know, our workflow and
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our process and who does what.
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That's kind of the foundation of the show is like how to podcast.
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But we don't, yeah, we don't have that sort of clearly listed out kind of in
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that contract viewpoint.
Speaker:
So that's a good one to consider. Just an example, you know,
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from television, when David Letterman switched from NBC to CBS,
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I think it was, There was a whole thing about, you know, look,
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he gets to use his name and he could come over and do the show on the new network,
Speaker:
but they couldn't call it the same title, which I think was late night with David Letterman.
Speaker:
And he wasn't allowed to take some of the classic bits that had become repeated on the show.
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Things like the guy under the stairs and the Velcro suit and things like that,
Speaker:
because that intellectual property belonged to NBC. B.C.
Speaker:
And so, again, having had those discussions and, and.
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Putting it in writing is how you sort of protect ownership
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of those your personal brand your uh
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your uh logos and
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likenesses and those kinds of things are important to uh get out ahead of and
Speaker:
that's what we lawyers are here for so yeah yeah these are all like really good
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good things to be thinking through we're gonna have to update our checklist
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we don't have any of these legal points in our getting started checklist we'll
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have to add those in because it is interesting like we We,
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so we do this show obviously for Ecamm and both Doc and I are employees of Ecamm.
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And so, I mean, not that we have any intention of, you know,
Speaker:
leaving our jobs and continuing this show on without Ecamm,
Speaker:
but, but that is something to, you know, that certainly we could and should
Speaker:
have in writing that like, you know, the show was created solely to,
Speaker:
you know, to help teach people how to do podcasting better, you know,
Speaker:
as a marketing vehicle for Ecamm as a company.
Speaker:
So it is worth thinking about as you're starting a podcast, is it a podcast
Speaker:
that is a marketing tool for your business? How does it connect with what kind of business?
Speaker:
As you said, does it need to be its own business? Does your podcast need to be an LLC?
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Who are the people that are working on it? These are all things to consider
Speaker:
that I think a lot of us, because we're creative people, don't.
Speaker:
We're like yay a podcast let's get started and we're thinking about like title
Speaker:
and colors and you know where it's going to go out across all these different
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platforms yeah um katie i just want to clarify something i'm seeing in the chat
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that awesome fun things is somewhat mischaracterized what i was saying about oh matt come on.
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So matt and i think for people listening planted in the cheek there but that
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doesn't always read That is a little sarcastic, so go ahead.
Speaker:
Yeah, so fair use allows you to use someone else's modified work for profit.
Speaker:
Under certain circumstances. And it doesn't mean any use, even commercial,
Speaker:
is automatically fair use.
Speaker:
So just let's be really clear. It's this complicated test. And so I don't want
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anybody to read that and just start going off and getting themselves into trouble.
Speaker:
Yeah, everyone here, make sure we don't get Gordon in trouble or Matt in trouble.
Speaker:
We don't want anyone to be in trouble.
Speaker:
Oh my gosh, I love it. Well, I want to talk a little bit because Because particularly
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here on the flow, and I think more and more people are starting to get into
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it sort of a similar format.
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We as a podcast are blending a lot of different content mediums together.
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So it used to be, you know, podcast was something that was, you know,
Speaker:
predominantly, well, I guess, started in video, as Doc will say,
Speaker:
moved into the audio space now is kind of in both the audio and video space.
Speaker:
But certainly these days, we have, you know, YouTube is a big player,
Speaker:
and then there's all the individual podcast players that are owned by very very
Speaker:
large companies are there any things that you need to be thinking of in that
Speaker:
space i mean i can think off the top of my head of like,
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for example we um we used an ai tool to create a theme song for a different
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show that i do and um and i you know i was thinking through like okay like it
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did i make sure that i check those boxes that i can use that across all of these
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different places because it's not like i'm just using that on YouTube,
Speaker:
or I'm just using that, you know, on Apple, etc. Like, are there are there things to consider?
Speaker:
Because of the number of companies that you are playing with as a podcast?
Speaker:
That's an interesting question. You know, I think that you have to know where
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you're originating your show.
Speaker:
You know, you mentioned if you were doing a show on Spotify,
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using their creation tools and their hosting tool, their terms of use are a
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little different than other platforms and so on.
Speaker:
And you, you still own your stuff mostly again, unless they're paying you like
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they paid Joe Rogan for those years.
Speaker:
Um, in that case, that was a, well, I don't know what the terms of that deal
Speaker:
were exactly, but ownership,
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well, you know, I'm sure his hundreds of millions of dollars in the bank don't
Speaker:
feel that much like, but, um, you know, the point is, so you need to check and
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understand what you're getting into.
Speaker:
And a lot of the platforms where you can publish publish a podcast,
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um, let you do it for, you know, hosting for free and even YouTube, this is true.
Speaker:
You know, there's no such thing as a free lunch. You need to understand what.
Speaker:
They get out of it and what you get.
Speaker:
Right. So, um, the good news is most of the platforms have done a pretty good
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job of, of accommodating that. Yes, you still own your own content,
Speaker:
But it's the scope of what they're allowed to do with it. That's one of the
Speaker:
areas that I'm watching closely is some of the, I think Spotify has added to
Speaker:
their terms of use that if you publish a podcast on Spotify,
Speaker:
they have the right to use AI to train AI on that content. Ooh, interesting.
Speaker:
And I may be speaking out of turn, so we've got to double check that.
Speaker:
But that is definitely going to become more and more of a, you know,
Speaker:
of a thing to watch for. And I think it's the kind of thing we as creators should
Speaker:
be restricting, not allowing, is don't use my stuff for AI unless there's a
Speaker:
separate transaction happening.
Speaker:
That's my sort of personal view on the subject. Interesting things around AI in particular.
Speaker:
So if you're using tools that involve AI, you may want to make certain disclosures
Speaker:
to your guests, to your audience sometimes that things are AI generated.
Speaker:
I think that's going to become a more of a thing. I think we're going to see legislation.
Speaker:
I think we're going to be forced to do a lot more of that. You're starting to
Speaker:
see that even across the social platforms, like they are now helping to identify
Speaker:
like, hey, it looks like this may have been created with AI.
Speaker:
Let's flag that. Yeah. Yeah, and I think we as consumers have a right to know
Speaker:
whether what we're seeing is real or fake and whether it's been sponsored content.
Speaker:
Those are the other disclosures and things that we are getting used to with
Speaker:
respect to false advertising and those kinds of things. AI, it makes sense.
Speaker:
The other side of AI, you said you created a song using AI tools.
Speaker:
Sure did. You may not really own that song.
Speaker:
Somebody else gets that same song. long, they could probably just use it and
Speaker:
there would be no, so using it for brand centric stuff may not be the best approach.
Speaker:
The reason being that copyright law doesn't allow machines to own copyrights
Speaker:
and only an author is the owner of a copyright.
Speaker:
So if it wasn't human authored, it doesn't have a copyright.
Speaker:
That's interesting. Cause so, so the difference between this show and then my other show.
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So this show, um, we use a tool called epidemic sound and that is the music for this show.
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And as you said, we've heard it in other shows and we're always like,
Speaker:
Oh, that's our theme song out in other shows. And that's fine for us.
Speaker:
Um, and it allows us to make sure we don't get any kind of strikes or any copyright issues.
Speaker:
Um, and we pay monthly for that as a tool in the service. The other show,
Speaker:
we used a tool called Suno, S-U-N-O.
Speaker:
And what it does is it actually, you give it information about your show,
Speaker:
about you, whatever inputs you want to give it.
Speaker:
And it uses AI to write lyrics for your theme song.
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And then you can choose what kind of music you want that set to.
Speaker:
So it actually says our names and says we're like a movie review show and that
Speaker:
we're reviewing viewing movies from the past and is set in like 80s music.
Speaker:
So it's really fun. And it's very specific to us. But it is interesting,
Speaker:
as you said, it was entirely written by robots.
Speaker:
So it's, so it's probably, you know, yeah, and more importantly,
Speaker:
you wouldn't be able to claim it on a YouTube monetization scheme or something like that.
Speaker:
So that's probably not a big issue for most creators.
Speaker:
But it also depends what you're doing. You know, if you're using an editing
Speaker:
tool that is doing a major, I'm thinking of the, what's it called? Opus, right?
Speaker:
Opus. Yeah. Opus clip is an AI generated video edited down from what you've
Speaker:
uploaded to YouTube or wherever.
Speaker:
There are questions about whether if somebody else wanted to take my Opus clip
Speaker:
video and embed it in their website for some reason, would I have any recourse?
Speaker:
Yeah. I don't know. I created the
Speaker:
original footage so theoretically i own that but again
Speaker:
yeah i mean a lot of those have guests in them too yeah that
Speaker:
brings you back to like your guest question oh interesting you've got
Speaker:
my mind spinning today all right tatiana has another great question she says
Speaker:
uh can you share best practices if we are considering having a co-host for our
Speaker:
youtube channel where one person owns the channel but has a regular co-host
Speaker:
for the for the show that's a great question i that is certainly the case for
Speaker:
both the shows I do as well.
Speaker:
So yeah, get a good co-host agreement. What I refer to as a podcast prenup.
Speaker:
Thank you for the softball. I'll just say you can come on over to my website
Speaker:
at podcastlawforms.com.
Speaker:
Podcastlawforms.com. I'm swinging over there after. Yeah. And I have a co-host
Speaker:
agreement on there that does exactly what you're talking about.
Speaker:
I own the show. You're my co-host. Here's the nature of our relationship.
Speaker:
And there's another one called a co-production agreement where the intent is really to be equals.
Speaker:
Yeah so yeah that's the approach have the conversation figure it out i also
Speaker:
have a um a podcast prenup sort of planning guide a checklist that you can go through.
Speaker:
Podcastprenup.com that's free you can give me your email address and you'll
Speaker:
get that so you got it you can have my email no no no not at all no this is
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really super helpful as i said it's It's one of those things that I feel like
Speaker:
the more that I was podcasting, the more these questions were surfacing.
Speaker:
And then you and I were at an event together and you messaged and I was like,
Speaker:
oh, we need to talk about these things because I'm sure if I'm having these
Speaker:
questions, everyone else is having these questions as well.
Speaker:
Or it's things that maybe it was somewhat of a question in the back of your
Speaker:
mind, but you assume you're doing it right or it doesn't feel like that big
Speaker:
of a deal until it becomes a big deal, until something happens and you have
Speaker:
a fight with your co-host.
Speaker:
Poster, or you decide that you want to launch, you know, a fourth wall shop
Speaker:
and you want to start selling merch and you, you know, and then all of a sudden
Speaker:
there's questions on who, you know, who gets what cut and split.
Speaker:
And if, you know, if the show is promoting the merch, how does all that,
Speaker:
how does all that work? So.
Speaker:
Exactly. I mean, these are all the kinds of conversations that we need to have.
Speaker:
You know, the, what I like to say about this is that if you're doing everything
Speaker:
right from a legal and business standpoint, nothing happens. You don't notice.
Speaker:
It's only when you haven't checked the boxes or crossed the T's and dotted the
Speaker:
I's that when something goes wrong.
Speaker:
It becomes a catastrophe. So that's my argument for using lawyers and using
Speaker:
legal stuff and doing your thing.
Speaker:
Yeah, I know. You're right. If everything is going well, then you'll never have
Speaker:
to work with lawyers or very, very rarely.
Speaker:
It's a situation where we like to have friends that are lawyers,
Speaker:
but we don't want to work with lawyers.
Speaker:
You don't want anything to be going wrong. So, yeah.
Speaker:
Oh, I really appreciate it. I cannot believe that we're nearing the hour.
Speaker:
So, let's think through if there's anything else that we're missing.
Speaker:
I'm trying to think if there's anything else that you get asked a lot that would
Speaker:
be valuable sharing with the podcasting audience. else?
Speaker:
Yeah, I think we've covered the frequently asked questions.
Speaker:
Should I form an LLC? That's a big open, you know, you need some analysis in there.
Speaker:
But the reasons for doing that would be around the liability insulation, setting it up.
Speaker:
Sometimes it becomes the podcast prenup. It's the structure of the relationships
Speaker:
between the people involved, the owners.
Speaker:
There are some tax benefits to running things through an LLC sometimes if you're
Speaker:
making enough money to justify it.
Speaker:
And, uh, there's a little bit of street cred that comes with it,
Speaker:
having that LLC after your name and, you know, and frankly, it just imbues a
Speaker:
kind of professional tone to the, everything that happens.
Speaker:
Um, intellectual, oh, trademarks, um, titles of podcasts, if they are distinctive, can be a trademark.
Speaker:
A trademark is a really good point. Yeah.
Speaker:
A trademark is a brand, a distinctive symbol or word or phrase that is used
Speaker:
that identifies the goods or services that it's affixed to as to their source.
Speaker:
So when you watch the flow, we know it's coming from Ecamm and Katie and Doc.
Speaker:
That is a brand. And we ought to take care to choose distinctive titles if we
Speaker:
can and protect them by registering a trademark trademarks where that makes sense,
Speaker:
you know, financially it does have a cost.
Speaker:
So, um, and the process isn't overly complicated.
Speaker:
It's a technical, um, uh, form that you, you know, some people do it themselves
Speaker:
and some of them come to me to fix it, but,
Speaker:
uh, but it is worth exploring at least should you register a trademark for your
Speaker:
podcast title or your YouTube channel can be a title.
Speaker:
The name of the channel could be a trademark as well.
Speaker:
And I think that's a powerful.
Speaker:
Kind of professionalism to bring to the table also absolutely and at what point
Speaker:
does it move um i knew this at one at one point in my life but the difference
Speaker:
between a trademark and a registered,
Speaker:
registered trademark registered mark copyright yeah well what's a little art
Speaker:
right yeah trademark can be protected just under basic common law it tends to
Speaker:
be very territorial really just regional wherever you're using it now in podcasting
Speaker:
and youtube that's pretty much national, international,
Speaker:
but you're more likely to encounter confusion in the marketplace if you don't register.
Speaker:
The registered trademark takes us out of that sort of state by state or regional
Speaker:
level of protection and gets us the more broad federal protection.
Speaker:
And then you can register in individual countries as well.
Speaker:
And at some point it becomes expensive and ridiculous, but certainly in your
Speaker:
home country and where you have big audience, I think it makes sense.
Speaker:
So you don't end up with another show that has a very similar title and causes
Speaker:
confusion and dilution. And, you know, if they make a crap show and you make
Speaker:
a good one and someone tunes in and hears it and thinks it's your show's crap,
Speaker:
that's not so good. So, yeah.
Speaker:
Yeah, absolutely. Yeah. So the R in the circle indicates a registered trademark.
Speaker:
Registered trademark. You'll see TM sometimes as an indicator of common law trademark.
Speaker:
Yeah. Awesome. Thank you for the clarification. application um so
Speaker:
from the law library wants to know if you do consultations and
Speaker:
if you have a rate I do consultations I
Speaker:
offer free consultations to folks who
Speaker:
reach out to me um you know assuming it makes sense
Speaker:
from the initial email whatever but uh yeah you can you can visit my website
Speaker:
at firemark.com and uh follow the link and and visit or just reach out to me
Speaker:
and contact me through socials or whatever and I'll give you information I don't
Speaker:
want to I don't want to publish the link for the free consultations on here,
Speaker:
but, uh, but find me on, on whatever social media G firemark is,
Speaker:
is how you find me on most socials and we can make that happen.
Speaker:
And, um, yeah, I love to do consultations.
Speaker:
Yeah. Oh, I super appreciate it. All right. Uh, last question,
Speaker:
and then we'll wrap it up here. Tatiana asks thoughts on selling digital tools.
Speaker:
Uh, she'd to begin selling slide decks activities etc there
Speaker:
are legal considerations around this if you're using your podcast or
Speaker:
your show and you're you're including information about
Speaker:
buy your options to buy things if the stuff that you are selling is original
Speaker:
to you or that you have acquired the right to sell there there are very few
Speaker:
big important concern i mean obviously you may want to use the llc structure
Speaker:
to protect yourself and your personal stuff there there.
Speaker:
Um, uh, truth in advertising is of course important.
Speaker:
Um, and, uh.
Speaker:
Slide decks, yeah, there shouldn't be a lot to worry about there.
Speaker:
If you're putting out information that people could rely on to their harm or
Speaker:
detriment, you may want to think about some disclaimers and disclosures, that kind of thing.
Speaker:
But no, I think it's not rocket science.
Speaker:
Just make sure that you're checking the boxes. Yeah, I was going to say,
Speaker:
unless you're selling slide decks about rocket science. Astrophysics courses.
Speaker:
I am not.
Speaker:
That is not my field. Well, this has been so much fun, Gordon.
Speaker:
So I, so I know you said you didn't want to plug a bunch of stuff,
Speaker:
but like one more time, we've, we have these in the comments as well.
Speaker:
And in the description, um, and show notes, regardless of where you're watching,
Speaker:
but where can we find you?
Speaker:
Okay. Well, gordonfiremark.com is sort of the hub for most of my courses and educational stuff.
Speaker:
Firemark.com for the law firm side of my, my life.
Speaker:
And podcast law forms if you're looking for those legal forms if you're looking for a guest release,
Speaker:
to have on your to use with your guests on
Speaker:
the show podcastrelease.com is a free guest release
Speaker:
that i just recently updated for ai and that is my my main you know lead magnet
Speaker:
thing that i'd like to invite podcasters to uh access podcastrelease.com and
Speaker:
if i may i just want to tell you tomorrow Tomorrow morning at 9 a.m.
Speaker:
Pacific time, I'll be hosting a workshop called Podcast Growth and Profit,
Speaker:
Mastering the Fundamentals and Avoiding Common Mistakes.
Speaker:
And you can sign up for that by going to podcastlaw.net.
Speaker:
Podcast law.net. And, um, that is July 10th.
Speaker:
So if you're listening to this later, you missed it, but still follow back up
Speaker:
with Gordon to see if you can get a replay.
Speaker:
Oh, good. Good. I do it every, I do it every few weeks. So even if you're hearing
Speaker:
this later and you're interested, head on over to podcast law form,
Speaker:
I'm sorry, podcast law.net and, uh, and sign up for the next one.
Speaker:
Awesome. Yeah. I will definitely have to check that one out.
Speaker:
I think that, but I think that would be super helpful.
Speaker:
Well, I really appreciate it. And thanks to Paul for dropping in all of those
Speaker:
links into the chat in the description for us. We appreciate it.
Speaker:
And yeah, Luis, let's roll on over to our credits.
Speaker:
So you can find this show at any time at slow.ecam.com.
Speaker:
We are available on YouTube, Apple Podcasts, Spotify, Amazon Music, TuneIn, and more.
Speaker:
And this show, like all others, are hosted by Captivate, our friends at Captivate
Speaker:
Make make podcast hosting so insanely helpful and easy.
Speaker:
And they are entirely focused on helping you to create a successful podcast that grows.
Speaker:
And just I mean, I can say this from experience, I have used both Captivate
Speaker:
and I have used other ones that we will not name here.
Speaker:
And it really is a big difference. You get what you pay for and Captivate is
Speaker:
affordable, but they really make a a big impact in what you're able to do and
Speaker:
all the different features that they offer.
Speaker:
So worth checking them out. They are over at Captivate.fm.
Speaker:
Huge thank you to them for always being such a huge advocate for this show and many others.
Speaker:
And thank you so much to Gordon for hanging out with us today.
Speaker:
Now I'm like, my mind is reeling. I have to go sign up for all of the different forums so I can catch up.
Speaker:
Sorry, future guests. We're now going to have to fill out some forms.
Speaker:
My plan for world domination. Exactly.
Speaker:
I really, I super appreciate it. I think this was really valuable information.
Speaker:
I'm seeing lots of thank yous coming through the chat here as we're recording.
Speaker:
So super appreciate it. And we'll be back again next week. Same that time,
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same bat channel. So you can find us every Tuesday.
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If you catch live recording at 12 p.m. Eastern on YouTube, or you can listen
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episodes drop on Tuesdays, wherever you get your podcast or here on YouTube.
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Thanks, Gordon. And thanks, flow writers. We'll see you next time. Bye, everyone.
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Music.
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