Intellectual Property Protections: Copyrights and Trademarks for Podcasting and Podcasters
By Justin M. Jacobson, Esq.
In addition to the licensing of music and content for a podcast and other related business considerations for operating a podcast, there are also a variety of intellectual property protections that a podcast operator could employ to efficiently manage and safeguard their business interest, including those that exist under trademark and copyright law. Consequently, an owner should be aware of the available mechanisms to protect their podcast’s intellectual property (IP) assets, including any rights that the podcaster may secure in any recorded podcast materials as well as those contained in any associated creative assets.
Trademark Protection for Podcasters: Trademark of Podcast Series Name, Logo Design, and Hashtag
One intellectual property protection available to a podcast operator is a trademark. Trademark law protects a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods or services of one party from those of others. A trademark could be obtained in a company name, a color, a sound or a logo design that appears on goods or services or for a catchphrase, a marketing slogan or a hashtag that is used to promote or advertise the goods and services of an individual or a business.
As a result, trademark protection is available for podcast series name, a podcast’s logo design as well as any marketing slogans or hashtags that the podcast uses to promote and market itself. In these cases, it is important to be aware that the protected podcast name must be utilized for a podcast series and not just for one episode. Furthermore, prior to selecting and beginning to use a specific podcast name, it is prudent for the podcaster to first conduct a thorough trademark screening search to determine the availability of the desired podcast title. This search is conducted to ensure the party’s usage is not prevented by another mark that is already using the same or a confusingly similar mark as the desired podcast series name.
Additionally, if podcast series is named after or incorporates a specific individual’s legal name, stage name, or nickname, the podcast operator must obtain rights to the individual’s name, including acquiring the ability to register, own or otherwise use their name in commerce for the specific services, including for operating a podcast. As a result, the podcaster operator should execute a formal release with the featured talent to permit the network to apply for and register a trademark in the show name that incorporates another person’s name in it.
While a podcast operator might apply for protection in a variety of goods and services, two commonly applied for International Classes of Goods are Class 009 and Class 041. Class 009 includes downloadable MP3 and other digital audio files, and Class 014 includes entertainment services such as the “production of podcasts” as well as providing “entertainment namely, providing podcasts in a particular field” such as art, politics, music, sports, fitness, video games or anything else. These two classes might be in addition to any other ones that the podcast operates in, including providing or selling its own apparel or merchandise brand as well as offering any type of services under the same tradename.
Copyright Protection for Podcasters: Copyright of Podcast Episodes, Logos, and Original Music
In addition to trademark law, a podcaster might apply for copyright protection for several different creative assets. A copyright protects an original work that is fixed in a tangible medium of expression such as a podcast recorded as a WAV or MP3 file. (17 U.S.C. §§ 101 & 102) As a result, a podcaster might file for copyright protection for each individual finished podcast episode (or just their most popular ones) as well as for any original material that is incorporated into a podcast recording. This protection could apply to a podcast “intro” or “outro” song, any show anthems, theme songs or “jingles” as well as for any animations or introduction video clips that are displayed in the podcast. Additionally, a podcast network might apply for copyright protection in the podcast’s logo design as well as in any individual podcast cover artwork distributed with the episode. Accordingly, it is crucial that a podcast owner receive written permission and the appropriate rights from its owner to any logo, artwork, animation, or audio clips that they are using in a podcast, including possessing the ability to publicly display the work as well as to incorporate the creative assets in any marketing and/or commercial recordings of the podcast. The lack thereof could subject the podcaster to liability for infringement or other potential causes of action by its rightsholder.
While a creator has “copyright” upon creation, there are many benefits to registering a copyright with the U.S. Copyright Office. In addition to applying for a formal registration, a podcaster can try to protect their created works by including a verbal notice at the beginning or end of the show that the podcast is copyrighted, and that “all rights are reserved” by the host or operator. A creator could also incorporate similar copyright notations in any written podcast descriptions, in any episode listings, on the podcast’s website or homepage or anywhere else that the podcast content appears. For example, a podcaster could include a copyright notice in a format as follows: “© [year] [owner] All Rights Reserved.” This could read as: “© 2022 Justin Jacobson Law, P.C. All Rights Reserved.”
In conclusion, trademarks and copyrights are two intellectual property law protections that provide unique benefits to a podcaster operator, including assisting in safeguarding their rights in a podcast series name as well as in a finished episode or a unique show tune or introduction video. As evident, a successful podcast has the potential to be acquired by a large content distribution network and generate substantial revenue, including a reported “$2 billion” in “podcast ad revenue” by 2023. However, for an operator to monetize their recorded works fully and most efficiently, they must be aware of and utilize the proper business and legal protections as the lack thereof could expose them to liability or loss of business opportunities.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
© 2022 Justin Jacobson Law, P.C.