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Podcasting is a huge growth area in Australia.
Recent research indicates that 1.6 millions Australians are tuning into podcasts, and it’s been predicted that Australian podcasting revenue will increase by 62% over the course of 2020. As COVID-19 has seen more Australians stuck at home, these figures may soar even higher!
With so many active listeners, there’s never been a better time to start your own podcast. It’s a perfect way to deliver the latest information, share your passions, and increase awareness of your brand.
However, starting a podcast can be both exciting and daunting. Before you start recording, uploading and promoting your podcast, it’s essential to get the legalities right from the very beginning.
If you’re interested in setting up a podcast but don’t know where to start, we’re here to help.
In this article, we’ll break down the key legal points you’ll need to consider before starting a podcast. We’ll also answer some common questions about the sort of material you can include in your podcast and how to legally protect yourself.
Naming Your Podcast
With so many different and unique names for podcasts, it can be hard to think up a name that fits your podcast and makes you stand out from the crowd.
However, before you settle on a name for your podcast or start making any social media accounts for it, you should make sure that the name hasn’t already been trade marked in Australia.
A trade mark is a registered design, logo, sign, phrase, word or symbol that distinguishes your business from other goods and/or services. You can use the Australian Trade Mark Search to check if a trade mark already exists.
So, is it necessary to register a trade mark for your podcast name?
In short: yes, it’s very important! If you want exclusive rights over the use of your podcast name and/or logo, it is probably best to register a trade mark. Here are 5 things you need to know about registering a trade mark in Australia.
If you’re keen on gaining global attention with your podcast, you might want to consider registering an international trade mark, too.
Will You Have Ownership Rights Over Your Podcast’s Written Scripts, Music And Recorded Audio?
A common mistake people make when starting a business is forgetting to ask themselves: “Do I actually own every component of this business? How do I know if I own these components?”
In a podcast setting, you’d need to consider whether you have ownership over your music or ‘theme song’, written script and recorded audio.
In Australia, a person who creates a work is automatically protected by copyright. If your work is protected by copyright, you have the right to use and reproduce it. This also means that if anyone wants to use elements of your podcast, they must acquire permission from you.
Copyright protects two types of materials:
- Works (this encompasses literary works, dramatic works, musical works and artistic works)
- Subject matter other than works (this refers to films, sound recordings, broadcasts and published editions)
Generally, a podcast creator should focus on obtaining ownership of their sound recordings and broadcasts.
In order for your work to be automatically protected by copyright, you must express it in some material form, such as writing the script, recording the audio or storing the recording on a hard drive. An idea itself would not be protected by copyright because it is not expressed in a material form.
Once the work is materially expressed, the person who made the original work, such as a recording, will be protected by copyright. It is not necessary to register nor publish your work to the public to claim copyright ownership. You can read more about copyright here.
However, what if a person or business wants to use elements of your podcast? Or what if you hire someone to create work for your podcast — will you still have ownership over it?
In these circumstances, you can protect your intellectual property by having the right legal documents in place. This will vary depending on your specific circumstances, so get in touch with our team for a free chat about your situation.
Do You Need Permission To Use Others’ Work In Your Podcast?
You may be considering using other people’s copyrighted works — like a song — as part of your podcast.
It’s important to get permission to use any copyrighted materials in your podcast. Otherwise, you could run into copyright infringement issues.
For example, if you’re thinking of using someone else’s song in your podcast opening, you’ll need to seek permission from the copyright owner. It doesn’t matter how much of the song you’re using or whether you’ve altered it. You can learn more about this here.
Can You Talk About Current Events On Your Podcast?
You do not need permission to speak about current or factual events reported in the news on your podcast. The only thing you cannot do is reproduce the work itself.
How About Reviewing A Book?
Although a book is copyrighted material, reviewing a book is considered “fair dealing”.
Fair dealing is an exception that permits the use of copyrighted material on the basis that the work is being used fairly for specific purposes or certain activities.
The only accepted purposes for fair dealing are reporting news, research or study, criticism or review, and parody or satire. You must also acknowledge the work for it to be considered fair dealing.
If your use of the work doesn’t fall under these fair dealing requirements, you must seek the permission of the copyright owner.
What Do You Need To Know About Having Guests On Your Podcast?
Before you record with a podcast guest, it’s important to consider whether you, your guest, or both of you will own the work you have created.
If you want to own the copyright to that work, you should put this in writing. It’s a good idea to draft up a legal agreement that makes it clear as to exactly what both parties are agreeing to. If you’re seeking the right to reproduce the material, the right to communicate the material to the public or the right to use the work in any format, you must make sure the agreement covers this.
Should You Have Legal Agreements In Place With Your Podcast’s Co-Hosts, Employees And Sponsors?
If you’ve hired an employee or an independent contractor to help out with your podcast, it’s important to have the right legal agreements in place to protect both parties. This will ensure that you own the intellectual property they create as part of their work, as well as providing clarity around their rights and responsibilities.
Similarly, if you’ve engaged a freelancer to create your podcast’s logo, artwork or other important elements, you’ll want to ensure you have ownership of this intellectual property. A Freelancer Agreement can be helpful for this (the freelancer may supply you with their own agreement, too).
No matter who you’re dealing with, we always recommend that you put everything down in writing to minimise the risk of future misunderstandings and disputes. So, we’d also advise that you have legal agreements in place with your co-hosts and sponsors. This ensures that everyone’s on the same page from the start.
Ready To Get Started?
If you’re not quite sure how to set up and protect your podcast, we’re here to help! Our friendly, experienced team of lawyers will ensure you have all the right legal contracts in place — freeing you up to focus on creating great podcast content.
We’re available for a free, no-obligations chat about your specific situation on 1800 730 617 or at team@sprintlaw.com.au.
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