Protection of brands’ and podcasters’ legal rights in a sponsorship agreement often fails to cover all the bases necessary for a healthy and fair relationship.
It seems like everyone has a podcast nowadays, and that, in part, is due to the accessibility of the platform. If you have something to say, no one stops you from picking up a mic and uploading your first episode.
Since there’s no barrier to entry, no one prepares podcast hosts for the legal ramifications of their job.
“I think trademarks are sort of basic business sense. Podcasters come in not always thinking of it as a business.” Gordon Firemark, The Podcast Lawyer.
- Do you know how to negotiate a contract with an advertiser?
- If you’re negotiating a contract, what should you look out for?
- What’s stopping another host from starting a show with your same name?
- Do you own the ad you created, or does the brand?
- Are you legally protected from any ramifications from your listeners using a product you endorsed?
These are the questions you should be asking yourself as you start to monetize your podcast, and lucky for you, we have the answers. Our founder, Heather Osgood, sat down with Gordon Firemark, attorney and CEO of Firemark Enterprise, to answer your questions regarding media and entertainment law.
Trademarks for Podcasting
In essence, a trademark protects the specifics of your brand or business (like the logo, name, or symbol) and has become essential in the digital media world. Podcasting has blown up in popularity in the past decade, and with that comes many similar ideas.
But you don’t want to be just another name in the crowd, right?
“Having started multiple businesses myself, one of the challenges with naming a company is finding a name that works. Everything is taken. But with podcasts, you could have ten shows with the same name… People don’t seem to pay attention to podcasts that already exist.” (Heather Osgood)
Once you find a name unique to you and your show, you want to make sure no one else can come along and take it for themselves – and that’s why you trademark it.
Think about it, a brand’s name is essential to its identity. It’s not a coffee, it’s Starbucks. It’s not a tissue, it’s Kleenex. It’s not any podcast, it’s your podcast.
Brand identity becomes essential when you start monetizing your podcast and working with advertisers. More than ever, brands are concerned with their public image and the influencers and shows they work with. You could be doing everything right with your public image, but if a brand googles your name and the top result is a different podcast that goes against the brand’s values, you’ve just lost your advertiser.
To avoid any confusion or legal troubles, Gordon recommends checking directories to ensure no other show has a similar name to yours and then trademarking it early on.
If you’re a newer podcast host, contracts can be scary. It’s easy to be tempted to sign right away before reading out of a fear the advertiser might back out, but that can leave you with more trouble down the line.
Specifically, $49,000 worth of trouble if you’re like one of Gordon’s clients who misinterpreted a vague contract and had to return almost all the money he made that year (make sure you listen to the episode for the full story!).
Clearly Defined Terms
A good contract should have all terms clearly defined, but if you see any gray areas, be sure to ask for clarification.
Let’s say you’re talking to an advertiser who has offered to sponsor your podcast for $1,000. Clarifying questions could look like this:
Is that $1,000 for the show? Or $1,000 per how many episodes?
Are there stipulations for the number of downloads or impressions the episodes gets?
The contract negotiation doesn’t end there even after you’ve figured that out. Many first-time hosts make the mistake of thinking they’ve locked down a brand they’re about to work with and they’re set for the next year.
This isn’t always the case, as most brands will include a cancellation clause in their contracts.
Typically, brands can terminate the entire contract with 30 days’ notice.
First Right of Refusal
Finally, you’ll want to look and see if the brand is asking for the right of first refusal.
The right of first refusal is a contract right that gives the holder (in this case, the advertiser) the right to enter a business transaction with the owner (you as the podcast host) before the owner enters one with a third-party competitor.
If Hello Fresh has been a long-time advertiser on your show, they may not like it if you start promoting Blue Apron in the same breath, and if they do have the right of first refusal, you might find yourself in some legal trouble.
It’s common for advertisers to send ad copy after a contract is signed to make sure you have all the key points to say during your ad. You own your podcast, but they wrote the words you’re saying, so who owns the ad?
“… the law has obvious answers. The podcaster is the owner in the situation…The contract was for the scope of advertising on the show.” (Gordon Firemark)
It might seem odd to care so much over a 60-second ad of you promoting a meal-delivery service, but it’s much more than that. It’s your name and likeness.
Remember, podcasting is a business; your business won’t make money if you give your product away for free.
Endorsing Vs. Recommending
If you’re planning on making a career out of podcasting and working with advertisers, it’s important to ensure you know how to protect yourself.
In her episode with Gordon, Heather used the example of THC and CBD brands working with podcasters to advertise on their show. Both THC and CBD are controlled substances under federal law, so, understandably, you might be a little hesitant before allowing brands to advertise them on your show.
But don’t worry, you’re protected.
“It’s first amendment protected speech, just like publishing a newspaper. [Is the government] gonna tell the New York Times they can’t run an ad for a CBD in the New York Times business section? Of course not. New York Times is a private publisher. It’s not within the government’s authority to regulate that.” (Gordon Firemark)
Things get a little more complicated when it comes to promoting nutritional and herbal supplements that the FDA may not approve.
In these situations, it’s important to not make statements like, “you should use this product because it will make you feel great and 20 years younger.” But instead, use phrases like, “I use this product, and I think it’s great.”
If any of your listeners use the product and get upset because it did not do what you claimed or did them harm, you’re protected under the first amendment.
Suppose advertisers are working with supplements that are not FDA-approved. In that case, the ad copy is usually vetted by their lawyers or legal team to ensure there is nothing written that could get either party in trouble. If you read the ad copy and see statements you’re concerned about, don’t hesitate to reach out to the advertiser for clarification.
Talking about contracts and the law can be overwhelming, but your podcast is a business; to run it successfully, you must understand these concepts. Understanding the legal side of podcasting could be the very thing that sets you apart from the rest.
If you are a marketer and are interested in learning more about how podcast advertising works, download our Marketers Guide To Podcast Advertising below.