In the Facebook group for our course and monthly membership, we’ve had a few questions pop up about podcasting and copyright: whether you need to worry about it for your own podcast, what license you should choose when buying music for your intro/outro, how it affects you if you want to use a clip from someone else’s work in your own content. So: here’s a very quick and basic guide. If you have any more questions or need a hand, don’t hesitate to reach out to us (standard disclaimer: I’m not a lawyer myself, just a massive nerd whose entire patrilineal line is made up of lawyers; so while I hope the information is of value, this post should not be considered formal legal advice).
Do I need to copyright my podcast?
Good news: in countries like Australia, New Zealand, the UK and the US, most creative works are automatically protected by copyright. What that means is: even if you haven’t registered copyright, you can still raise hell if some wankpuffin tries to steal your work. This automatic copyright is invoked when you put the work into a “tangible, perceptible form” – whether that’s paper, film, a photograph, or an audio recording.
This does get a little more complicated if your podcast takes an interview-based format; in that instance (as a very general rule), your questions belong to you, and your guests’ answers belong to them. If you’re concerned that they’ll invoke copyright to try and get you to pull the episode, a) you might want to think seriously about whether they’re a good choice of guest and b) you can protect yourself by getting them to do a verbal (make sure you record it!) or written release. You’ll probably also want to ensure you have written or (recorded) verbal permission to use their images and bio in your marketing as well…but I’m getting ahead of myself (as usual). It also gets a little more complicated if you broadcast your podcast live (which some people to do as part of their marketing strategy, or to enable listeners to call in during the recording and share their feedback); copyright won’t kick in until the work is “fixed” (the finalised recording has been saved or posted somewhere), so you’ll probably want to make sure you don’t delay too much between recording and posting the episode.
While this automatic copyright covers the actual content of your podcast and your show artwork – it doesn’t cover the name of your podcast. This comes under trademark law, and there’s two ways that you can make it yours: either by using it, or registering it (basically: you have to earn it, or buy it). There are definitely advantages to registering a trademark (you get more rights and protections, and if someone uses it before you’re ready to go live you can legally say “oi, that’s mine”) – but it’s not a hundred percent necessary. On a related note: we always recommend doing both a quick trademark search and a Google search before sending your podcast live, to ensure you’re not stepping on someone else’s turf. It’s important to remember here that the protections offered by trademark law are a little broader than just protecting the specific title of your work – if (for example) someone called their podcast Carlosophy, Karly could still technically invoke trademark law even though there’s some marked differences between that and Karlosophies (the title of her podcast). Basically: if it’s similar enough that people are likely to get confused or assume that the two properties are somehow linked, you may still be the lucky recipient of a cease and desist letter.
If you want people to be able to share your content freely and easily, but still ensure you get proper credit – licensing is very likely your best option. Essentially what a license does is it allows people to use your work, but only if they follow certain rules. Creative Commons is a good option here; you can apply for a license free of charge, and there’s a number of options to choose from. You can choose whether you want people to be able to make it available for commercial use (eg, someone using a soundbite from your podcast in an advert), or if you’d rather it only be available for people who aren’t making a profit; you can also choose whether people are allowed to make derivative works (a good example of that would be someone taking a soundbite from your podcast and including it in a compilation, or taking your episode and auto-tuning it into a song…and now I’m just giving myself ideas). You’ll just need to make sure that the license is clearly stated in a really obvious place so nobody can claim ignorance (Creative Commons provides you with something to copy/paste, which is handy – and most podcast hosting platforms have a dedicated box for this when you’re filling out your show’s information).
Can I use someone else’s content in my podcast?
This comes up a lot, and my very simple and general recommendation is this: if you’re not sure, ask the person who owns or created the content (just as you have some rights even if you haven’t formally copyrighted a work, other people are afforded the same). Write them a letter or an email, contact them via Facebook or send them a carrier pigeon (whatever works), tell them what you want to use, why you want to use it, and offer to give them approval before it goes live (if you really want to go above and beyond). And as above: make sure that you get a verbal recording or some kind of written proof that they’ve said yes.
If they’ve passed away, that doesn’t mean copyright has lapsed; works usually enter the public domain seventy to ninety years after the person’s death (so you’d need to contact their estate, or whoever you can find that might be able to point you in the right direction). I say “usually” because there are instances where copyright has been extended, or gifted to someone else – Peter Pan is a good and rather complicated example of this, where the UK rights to JM Barrie’s original play belong to a children’s hospital in London. Again, if in doubt: check, or ask.
You may be able to use a portion of someone else’s work under what’s called “fair use” – basically, playing or reading something so you can comment on it, criticise it, parody it, or report it as news – but fair use is a bit of a slippery and subjective concept, so what one judge determines as fair use, another may determine to be copyright infringement. If you can make the point by simply explaining or describing the content (and/or telling people where they can find it), that may be your best bet. A good rule of thumb: if you have to think hard about which category it would come under and/or why it’s fair use…it’s probably not fair use.
If they’ve licensed their work (and have made that license easy to spot), you’ll simply need to look up the type of license, check that it covers how you want to use the work, and make sure that you’ve followed the conditions set out in the license regarding attribution, etc.
What license do I need for my intro/outro music?
The licenses available for purchase do tend to vary a little from website to website – for example, Audio Jungle’s standard license allows you to use the music you’ve bought in a short/indie film, BenSound’s does not, and SongFreedom requires you to get a different license type altogether for film projects. So: always read the fine print. They’re usually pretty good about telling you what you can and can’t do (and if you’re not sure, you can always reach out to support). You’ll also find that most of them are now specifically telling you whether your license covers podcasting or not – if it doesn’t, you’ll want to make sure that it covers both broadcast and online/downloadable media (as podcasting sits on the fence here).
If you’re searching a free music database (like the Free Music Archive), make sure that you’re only looking at tracks that are specifically marked as being free for commercial use, without attribution (you could go for one that requires attribution, but that means putting it in your show notes for every single episode).
In short: check the license. If in doubt, ask.
I have another question…
Excellent! Questions are kind of my favorite thing (in my experience, the best journeys begin with one). If you’d like to join us on monthly live calls and pick our brains about all things podcasting, check out the Radcasters membership. Otherwise, you can contact us here.