Podcaster’s Legal Checklist

by Gordon P. Firemark,
The Podcast Lawyer™

Podcasting is serious business, even if you’re in it just as a hobby. Taking a professional

approach to the business and legal aspects of your podcast from the beginning will protect
you and allow you to start, grow and monetize your podcast with con dence, so you can
take the kinds of bold steps needed to get your message out and achieve your goals.

The legal aspects of podcasting fall into a few basic categories. Here is a short checklist to
help you address the issues and avoid unpleasant surprises.

YOUR BUSINESS STRUCTURE

Consider using a business entity. A corporation or limited liability company (LLC) can
protect your personal assets against liabilities that arise from the podcast, plus business
entities can have valuable tax advantages, and can help establish the rights and duties of
multiple owners and other personnel. Even if a corporation or LLC isn’t in the cards, unless
you’re podcasting completely solo, consider formalizing things with a written partnership
agreement to de ne relations.

YOUR TEAM STRUCTURE

Use a “podcast prenup™ with every member of your team. As the saying goes, “If you
want to go fast, go alone, if you want to go far, go together”. Having a team of people to
help you create and grow your podcast is a great recipe for success. But, because of the way
the law can work, anyone who contributes to your podcast might claim to be a co-owner, (or
worse, sole owner) unless there’s clear evidence of the parties’ different intention from the
beginning of the working relationship. So, it’s important that each person, whether a co-host,
guest, producer, editor, researcher, writer, or whatever, have a signed agreement that
outlines their role, responsibilities, and rights. Even if you do intend to share everything
equally, it makes sense to get it down in writing so there are never any misunderstandings
later on.

If you have employees, it is important to document their roles, responsibilities, compensation

and bene ts too. It’s also wise to have an employee manual and a clear set of policies and
procedures for your entire team.

Practice “Safe Guest:” Use a podcast guest release, every time. A guest release eliminates
reliance on implied permission and all the guesswork about the scope of that permission.
Instead, you’ve got a short, written agreement that grants consent to be recorded, to

fi
fi

fi

 publication of the episode in any and all media, forever, and full ownership and control of the
content created during the guest appearance. No more fear of unreasonable takedown (or
shakedown) demands from former guests. It’s easy to implement a release on a calendar-tool
or web-form when your guests sign up to appear.

YOUR CONTENT

There are several aspects to consider respecting your content:

Trademarks: Choose your title carefully. Select something that is distinctive. Avoid titles
that are the same as or similar to any other podcast, book, magazine, or TV program.
Otherwise, you could be infringing their trademark. Consider registering YOUR title as a
trademark to protect against others creating confusion be selecting similar names. It’s OK to
talk about famous brands, so long as you’re truthful, and not creating confusion, but it’s not
OK to name your podcast after a brand, or to suggest an af liation of any kind.

Copyrights: Know the rules. The mere act of creating an original work of art, music,
literature, sculpture, lm, or what-have-you gives the author of the work a copyright; the
exclusive right to make, distribute, adapt, modify, perform and display the work, and to
prevent others from doing those things. So, each episode you create is protected
automatically by copyright. But that also means that anytime you incorporate other peoples’
work into your own (say by adding some intro-music, or quoting a poem within your episode),
you’ll need permission. Since identifying the correct rights and rights-holders can be quite
challenging, most podcasts avoid using such material. Instead, use pre-licensed ‘production
music’ , but read the license terms carefully to be sure that it allows for use across multiple
episodes, and for any other uses you intend.

Libel: Don’t spread lies about people. It’s really that simple. Any false statement about a
person could cause them reputational harm, so it’s of utmost importance that you fact-check
everything before you publish. This goes for the things you say, as well as what guests say. If
you can’t verify from at least two independent sources, consider removing or changing the
statement.

Privacy: Even the truth can hurt: Some kinds of information are considered private, and
shouldn’t be disclosed unless they’re extraordinarily newsworthy and relevant to a current
matter of public concern. Examples (not an exhaustive list) include: Employment records,
educational records, medical records and status (including medications taken, diagnoses,
etc.), sexual history, practices and orientation, and almost anything concerning a minor. Also
“newsworthiness” and “public concern” are subjective terms, so be thoughtful, even when
you’re doing “hard-news”. Is this really important for people to know? Has it been con rmed
from multiple sources? Does the bene t to the public knowing outweigh the harm suffered
by the person in question if it’s published?

fi
fi

fi

fi
 Use Disclaimers: If you’re offering information that could be construed as legal, health,
nancial or other professional advice, or if you’re talking about activities that could be
dangerous, using appropriate disclaimers is a wise decision. “Don’t try this at home”, or
“Consult a professional adviser before trying this”. Can save you lots of headaches. Got a
controversial guest or subject? Try something like: “The opinions of our guests do not re ect
the views or policies of this podcast or its hosts, their employers or sponsors” Place
disclaimers where they’re likely to be heard… not just at the end of the episode, but also at
the beginning and adjacent (where possible) to the disclaimed material as possible.

YOUR MONETIZATION

Most podcasters hope to monetize their shows someday, and there are countless approaches
that can be taken. Each has its own intricacies and nuance. Here are a few guidelines:

Get it in writing. No matter how you’re monetizing, the very nature of things means that
there’s a transaction involved. You’re taking money from someone in exchange for something.
The nature of that deal should be documented in a written contract. Whether it’s af liate
marketing (refer to the Terms and Conditions of the Af liate program), sponsorship, or
something else, be sure you know what’s expected of everyone, and that you abide by the
terms set out.

Disclose, disclose, disclose. In the U.S. the Federal Trade Commission (FTC) regulates
advertising, endorsements, and in uencer marketing. The basic rules are simple: Don’t
publish false or misleading information. For in uencers like podcasters, this means that
whenever there’s a nancial relationship behind or underlying your message, that fact must
be clearly and conspicuously disclosed to your audience. So, if there’s an ad, make it clear
with “and now a word from our sponsor” or some similar kind of message. If you’re
promoting a product as an af liate, say so, clearly, and explain that you’ll receive a
commission when listeners purchase using your link or coupon-code; and if you’re being
paid by your guest, you have to say so, with enough explanation that listeners will know it.

Keep good records. If you’re making money from your podcast, the government will want its
slice of that delicious monetization pie. At minimum you must keep records of your gross
revenues. If you want to deduct your expenses, you’ll need to keep records, receipts and
other evidence that they’re related to your podcast. Check with your accountant or tax
adviser to learn what can and cannot be deducted and how long you should keep things.

OTHER STUFF

Website Documents. Privacy Policy. If you maintain a website, the law requires that you have
a privacy policy that outlines what data you collect about your visitors, how it’s used, when
fi

fi

fi
fl
fl
fi

fi

fl

and with whom it’s shared, where it’s stored and more. Terms of Use/Service. The Terms of
use for your website lays out the contract between you and each visitor. It should set forth
what’s allowed, what’s not, how to complain if something’s wrong, how to contact your
designated DMCA agent, and more. Disclaimers. Depending on the kind of information
on your site and in your podcast, you may need to use disclaimers to warn your audience
against reliance on things as professional, tax, nancial, health, or legal advice.
Don’t just copy website documents from another site. (First of all, that’s copyright
infringement, and secondly, the terms you copy might not actually re ect how your site
operates. Make sure your policy is customized toward your speci c use-case.

Good, old-fashioned common sense. Although it often seems that common-sense

actually just isn’t that common. But exercising good judgment and following basic ethical,
moral, and just plain neighborly approaches to things just makes sense. Following the
Golden Rule is never a bad idea.

_________________

About The Podcast Lawyer™

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. Gordon is the author of the Podcast, Blog & New Media Producer’s Legal Survival
Guide and founder of Easy Legal For Podcasters - a complete package of training, tools and
templates to help podcasters get the “legal stuff” done quickly, easily and affordably. Just
need template forms? Visit PodcastLawForms.com

More information online at gordon remark.com

Join our free community!

Share tips, questions, answers and more!
http://legitpodcastpro.com

fi



fi

fi
fl

 NOW! Get Your legal and business affairs in order the

fast, easy, done-by-you way with
Easy Legal For Podcasters.

Easy Legal For Podcasters is a unique online, do-it-yourself legal training program I've
designed speci cally for podcasters like you. 
 
With Easy Legal For Podcasters,  you will:

• Select and form the appropriate entity for your professional podcast business

• Register your podcast title as a trademark

• Develop a system to  register your copyrights in a timely fashion

• Properly structure your relationships with co--owners, co-hosts, co-producers, and

other collaborators

• On-board team members with appropriate contracts and protections

• Make advertising, af liate and endorsement deals that make sense.

• make more money podcasting.

“Whether you're in it as a hobby, a side hustle, or as your main gig, getting your
business and legal affairs in order is the best way to feel con dent and secure so you
can grow, monetize and supercharge your podcasting operation and go forward for big
success, impact and in uence”

Learn more: http://easylegalforpodcasters.com

fi

fi
fl



fi