Understanding the Legalities of Podcasting with Gordon Firemark

Intro: 00:00:01

It's not just for the geeks and OGs, this show's for those in and around podcasting.

Danny Brown: 00:00:12

Hi and welcome to in and Around Podcasting, the industry show that shares powerful podcasting perspectives. I'm Danny Brown, one of your regular co hosts here, but today I'm flying solo.

However, I do have an amazing guest coming on who's got one of the smoothest voices in podcasting, I feel, which I'm sure you'll agree with when you listen to the episode. Gordon Firemark, welcome to in and Around Podcasting.

Gordon Firemark: 00:00:34

Hi, Danny, it's great to be with you. Nice to see you.

Danny Brown: 00:00:36

You too, mate. You too. And as I mentioned today, what we want to do with this episode is really talk about the legalities of podcasting.

So, you know, copyright infringement, fair use, legal agreements, etc. And I know for anybody that is not aware of who you are and what you do and why we brought you on for this particular episode.

Who are you, Gordon, and what do you do?

Gordon Firemark: 00:00:59

Well, they call me the Podcast Lawyer. I am an entertainment and business and media lawyer in Los Angeles, California, in the U.S.

and I've been doing that kind of work for, gosh, 33, going on 34 years, and got started as a podcaster myself about, gosh, 16 or more years ago. And I decided I needed to investigate the legal side of this industry.

So I scratched my own itch, did the research, wrote a book, and became sort of the expert on the field.

Danny Brown: 00:01:31

And one of the things that I really appreciate about yourself as well is you have a lot of resources, like three resources that podcasters and creators can download. So templates about legal agreements between coasts and that, which we'll talk about in the episode.

And it's just, I feel like that's a really nice thing that you didn't need to do that you could have, you know, just put them behind a paywall or something. But you give a lot of free resources, which is awesome.

Gordon Firemark: 00:01:52

Well, it isn't all pure altruism for me. It's about putting the information out there, obviously to help people, but also by helping them, I help myself because it does raise the awareness.

It makes me visible. There is a quid pro quo. If you download one of my resources or access my stuff, I am asking you for your email address and I'll keep in touch.

And hopefully for some, when the need for the more high touch legal services come, I'm the person that comes to mind and they think of me. So it's marketing.

Danny Brown: 00:02:22

No. And that's perfect. And everything's marketing, right? There's an old saying, I don't know if it's like Jim Cron. Jim Cron, that said it.

Yeah, everything marking or something like that anyway. But yeah, delighted to have you on, in and around podcasting.

I know certainly at Captivate we have our users or some of our users ask about certain things when it comes to copyright, etc. And you see, I'm sure you see it online. I know you do some, you know, a lot of live videos where you get a lot of comments coming in.

We've had you before on one of our livestreams as well. There's a lot of confusion I feel around legalities and what you should and shouldn't do, or what you could and couldn't do.

So really just wanted to touch on these topics today and I feel maybe the first one is around copyright. There seems to be a lot of confusion. What is copyright? What is copyright?

Three, what is, you know, what can you use and what can you not use for, say, your podcast and audio snippets, that kind of stuff.

Gordon Firemark: 00:03:16

Well, first off, Danny, if you don't mind, just as a lawyer, I have to be a little careful, so I'm going to do a little quick disclaimer.

What I'm sharing here today is general information about the law as I understand it and as I have studied it here in the US Being a US based lawyer, copyright law itself is mostly consistent internationally. There are a few exceptions that we'll get to when we get to them. But the good news is that copyright law basically protects the work of authors.

The original work that you do, when you create an episode, when you write a song, when you create a sculpture or painting or a film or anything, it is protected for a very long time, the life of the author, plus 70 or more years in some instances against other people using that material without consent. And there are a few exceptions and things like that.

But what that means for those of us that are creating content is that if we want to incorporate third party material into our work, say a piece of music or a poet, a poem or a snippet from a film, we need to go and identify who owns that material and obtain the proper permission. Again, unless there's an excuse or a defense to not needing that.

Danny Brown: 00:04:33

And you mentioned there, there's a lot of different kinds of copyright and it seems there's also a lot of you mentioned going, you need to get officer permission from the owner of the copyright.

And that could be if it's music, for example, that could be anyone, it could be the songwriter, it could be the producer, it could be the manager, it could be recording. So how do you define or how do you determine that? Sorry.

Gordon Firemark: 00:04:55

Well, that is part of the hard part, and it's what makes this a big challenge in podcasting, where most of us are producing our content on a fairly short production timetable. So tracking down the right owners for the material can be a challenge.

Now, in the music world, there are usually two copyrights that have to be considered. Unless you're performing the song live on your show, directly into the microphones, you're using somebody's recording of the song.

So you have the copyright in the composition written by the songwriter. That's typically administered by a company called a music publishing company.

And then there's the recording, which was produced by the artist and the producer with the record company. And typically it's the record company that owns that aspect of things.

And it's even more complicated when you have a rock band or something with five members, all of whom contributed to the writing of the song, and it was 25 or 30 or 50 years ago, and now they've gone their separate ways, scattered to the winds, and their children and grandchildren are all partial owners of these copyrights. And those approvals need to be obtained.

So the first thing you have to remember is just leave yourself lots of time if you're going to be using this kind of material.

Danny Brown: 00:06:05

And.

Gordon Firemark: 00:06:05

And you may have multiple stops along the way shopping for the licenses you need.

The good news is that the performing rights organizations here in the US that's ASCAP and BMI and GMR and csac, and in other countries in Canada, I believe it's socan, and in the uk, it's prs. And there's a number of them around the world. They maintain databases of who owns the compositions and.

And that's a really good place to start researching how to identify whom to contact.

And then it's a matter of reaching out with usually in writing some kind of an email or sometimes an online web form to explain what you're doing and what you want and how you plan to use the material and asking for a license. And it's rare that you get. I distinguish permission from a license based on money changing hands. If it's permission, it's free.

If it's a license, you're paying money. Most of the time, they expect to be paid something for the use.

Danny Brown: 00:07:04

And I guess where some of the confusion can sometimes come in as well.

I know when Spotify for creators used to be anchor, they had a feature where you could use music on Spotify because Spotify owned anchor and they had the rights and license to the music, but then they took away the recording, whatever it was, called us, like speaking music or talking music and feature. And then we saw some podcasters, certainly on Reddit. Whether it was correct or not, I'm not sure this was like another podcast.

We know what podcasters can be like themselves. But they were mentioning that they were now being told they have to remove that because a license no longer exists. So.

And obviously that was only for Spotify. You couldn't use that if it was going out to Apple and Pocket Cast, et cetera. So yes or yeah.

Gordon Firemark: 00:07:50

And the reason that that was possible with Spotify for podcasters or whatever they called it was that technically, because Spotify already has licenses for this enormous catalog of music, they are able to play any song in their catalog just as they please. But functionally it actually required you to make your podcast episode and leave spaces where the music would go.

So you couldn't do an under bed and talk over the music as it was fading out at the end or things like that. And it was klutzy. So people weren't really using it very much. And I think that's why they ultimately just, just decided to get rid of it.

I imagine they had some pushback from the music industry as well, complaining that this was not the same as the non interactive streams that Spotify is generally allowed to do. So I wasn't aware that they were making folks take down the older episodes, but nothing surprises me with Spotify.

Danny Brown: 00:08:47

Well, you'd mentioned at the start there that copyrights generally, it's the lifetime of the artist plus x amount of years for artists that provide content. So music, et cetera, primarily music, I guess, on the sites that allow you to, you know, you can sign up and pay monthly for a license, etc.

You can pay monthly and use whatever music you want and downloads you want.

If an artist like fell out with that platform and took away their content, is it up to that content platform to notify the podcasters that bought the license? How, how would that work?

Gordon Firemark: 00:09:22

I think that's a scenario I haven't encountered. I think that even if the artist decided to essentially pull their music, it would be a going forward suspension of rights.

And so any old material that's licensed would still remain licensed, but you'd have to check the terms of your licenses with those folks. And frankly, that's a matter of debate or dispute between the artists and the platform.

The good news is, I think if you subscribe with the reputable platforms, like the epidemics and pond 5 and the envato Marketplace.

You know, all of these folks that license music on that what we call a royalty free or a subscription basis, they're going to be pretty proactive about notifying you if something changes and you need to make a change.

But I think you can generally rely on their promises and assurances that they've got the rights you need and you can use it forever as long as you remain a subscriber or have with the paid license and things. I, I wouldn't make that a big point of concern.

Danny Brown: 00:10:23

One area that we see a lot of, and I say we as in we the royal we one, one area, I see a lot of things like is fair use and the understanding of fair use.

Because you mentioned earlier, obviously your focus is primarily the US law and then you have UK law, European law, Australia, so on and so on and so on. Does fair use exist or is it something that's kind of used for not the right reasons, for want of a better description?

Gordon Firemark: 00:10:56

Well, both of those are true. Fair use does exist. It is a codified provision of the United States Copyright Act.

it was encoded in the act in: 1976

first Amendment freedom of speech and press against the rights of copyright holders, both of which are enshrined in the US Constitution. So we had to figure out, well, how do we draw this line?

And we looked at the judges, came up with this complicated four factor balancing tests that you have to run through for each potential infringement. And it's a defense to lawsuits for copyright infringement.

So in the US if you are sued for infringement and the use you have done is of a nature that sort of, we as a society have decided is valuable enough that we want to protect your right to do that, maybe it's commentary and criticism, you know, you're doing a review or, or you're commenting on the original artist or something like that, and you're only using small bits and it's not affecting the market for the original music and those kinds of things, well then maybe it's going to be fair use. And that's a question that generally goes to the judge or jury for each clip that's used.

So you can imagine if you're talking to a judge and jury, you've been sued and you're involved in very expensive Time consuming litigation.

So it isn't something I recommend people rely on heavily unless what they're doing is absolutely a dead bang locked in fair use scenario like doing real hardcore journalism or documentary style stuff and things like that. So it does exist, but it isn't a reliable defense to for the average lay podcaster to use. And it's U.S.

based only because it's based on our First Amendment. Now there are analogs in other countries law in Canada and the U.K. it's called Fair dealing.

I think also in Australia, Australia, New Zealand, other countries have similar principles and in other places they've sort of just adopted a doctrine of we're not going to make mountains out of copyright molehills. And they sort of just dismiss these cases on, you know, hey, it's no big deal kinds of grounds.

So your mileage may vary depending on where in the world you are and what you're doing. The US tends to be the most expansive about this first amendment free speech thing, but other countries do a pretty good job as well.

Danny Brown: 00:13:34

And obviously I'm primarily an audio first podcaster. I'll do video.

A lot of podcasters are now with YouTube and Spotify doing videos well, but primarily with YouTube really coming to the podcasting space and pushing YouTube as a real destination for podcasters.

Does the same hold true for if I'm using an audio snippet from a record or from a band, or if I'm a YouTube creator that does these like reaction videos for example, and I've got a lot of video clips in the same video. Is it all covered under the same or that then get a little bit different because it's video versus audio.

Gordon Firemark: 00:14:09

No, it's fundamentally the same principles. Doesn't matter where the original material came from or what from it you're using other than that, you know, the quantitative part of the discussion.

But no, these reaction videos are actually, I think it's pretty well accepted in the YouTube community that it's acceptable to do this.

I don't know that the copyright owner community necessarily agrees, but when you're dealing with a behemoth like YouTube and Google, you sort of are at the whim of their decision making process.

You can certainly issue a takedown notice under the DMCA and other US provision and probably get the video taken down and then maybe it gets put back up if the, if the creator wants to put it back up and then you get to go to court and fight over it. The truth of it is it's often not worth the expense and time of the battle for either of the parties.

And so they, they, they let it go or leave it alone. But every once in a while we do hear about somebody suing someone else or a channel being taken down and blocked.

And you know, with YouTube, if you get enough of these strikes, you, you, you get your account suspended or terminated. So it's not good for reputation either way.

Danny Brown: 00:15:23

What is interesting as well, the different approaches YouTube and Spotify take from it.

As you mentioned there, YouTube gives a copyright strike, but your content will remain or, you know, you can just reply to that and hopefully prove, oh no, I'm not using it for anything other than this. Whereas Spotify are a lot more strict.

They'll take the episode completely off Spotify and give you like 5 days to reply or, you know, appeal, et cetera. Any of the message that says repeat offenders will be in trouble.

So it's interesting to see where YouTube kind of put it more on the creator, I feel, whereas Spotify maybe less so.

Gordon Firemark: 00:15:57

Well, actually, YouTube has two tiered approach to this.

One is that if a music is specifically music owners, if the music owner claims the ownership of a piece of a clip or something like that, YouTube has set up a mechanism and it's sort of by agreement with the, with the creator community and the music industry that they're going to allocate some of the monetization for that piece to the original music owner.

And so they've sort of made a deal, but if the original owner wants it taken down, they can get it taken down completely, but then they're sort of shooting themselves in the foot because there's a small revenue stream that they can't get.

But you see some of the video game manufacturers, Nintendo in particular I think is pretty aggressive about takedowns and others are sort of happy to have the gameplay videos happen and promote their content.

Danny Brown: 00:16:52

It is interesting to watch it. I'm a nerd, so I watch a lot of video game YouTubers and my wife says, why are you watching people play games? Just play the game.

Gordon Firemark: 00:17:03

I don't understand it either, but some people do. My kids like to watch it.

Danny Brown: 00:17:06

Yeah, my son's the same. But it's like, you see, it's more like a fan, right, that's showing love for you as the original game creator or something.

And hopefully as you mentioned, because they've got monetization from the channel going to the creator, the original copyright creator. Anyway, it seems a more agreeable setup, if you like, where we don't need to be super strict.

But you've still Got to recognize and, you know, respect the copyright side. Yeah.

One thing I was curious about because I see this actually quite a bit online where a couple of friends, two or three friends, start a podcast and for whatever reason, one of the co hosts decides to step away. But they've all got monetization going on. They've got someone did all the marketing, someone does production, someone does the art, etc.

And the assets. So how, how do people, creators. I know this is something that you helping specialize with as well, Gordon.

Is it important to get legal agreements set up between co hosts before you launch a podcast? Can you do it afterwards? Should you?

Gordon Firemark: 00:18:09

Well, thank you for throwing me a softball question. I think it is very important to document your relationship agreements as early in the process as possible.

Now, a lot of folks, you know, they're going to start a show because it's something, let's try it out, it's fun, we'll see what we get. And da, da, da. And then a few episodes in, they realize, okay, we're really onto something. We're going to keep keep going.

As often as not many folks don't keep going. And so it may be a poor investment to invest in contracts and legal services early, early on.

But I would say as soon as you're pretty sure this is going to be something you're sticking with, and as soon as you realize that somebody leaving or somebody disagreeing over division of proceeds would be a problem, then I'd say, yeah, it's time to do it. Sooner rather than later for certain. This is what I call a podcast prenup.

The idea being, hey, if the relationship breaks up, you kind of want a roadmap for how you're going to divide things up.

What's going to happen, who gets to keep going with things, who gets access to the RSS feeds and the email addresses and, and all of the, the social channels and all those kinds of things as well as what happens with the old episode content. Sort of who gets the house and kids kind of question. And there are lots of different forms that these agreements can take.

If you're hiring a co host, just bringing them on and it's your show, but they're just going to be coming on to do the show, then that's one sort of an agreement.

If you're going to really be partners in the business, then that's a different sort, a collaboration or co production or maybe you form a corporation or limited company of some sort of limited liability company to be the container in which this bundle of assets that resides. And then you figure out, well, how do we divide things up? What. How does one party buy the other out? Or do we do a structured payout over time?

Or maybe the. You know, if you're leaving, you're leaving and you're turning your back on things. So there's lots of different ways to approach it.

The important thing is to have the conversation before it gets acrimonious, so you can figure out a solution that makes sense to everybody.

Danny Brown: 00:20:11

What you'd mentioned there about previous older episodes. So let's say the podcast is beginning to get monetized. It's got some decent monetization behind it, but the host leave.

One of the co hosts leaves after episode 30. But the shows still continue to monetize. Obviously, because it's evergreen content, you're always going to have monetization.

So I guess that could be like a sticking point. Do they still get paid for the content prior to them leaving?

Should they get, you know, it's like so, like you say, it's like a lot to actually get into once you really get into the weeds on that.

Gordon Firemark: 00:20:44

Yeah. The challenge becomes the measurement and the accounting, not so much the agreement.

If you can agree, we will split the proceeds from those old episodes this way, or we'll aggregate it once a year and figure out and send you a check. There's lots of ways to do it. This is a situation that has come up quite a lot.

And I actually just was recently dealing with a podcaster whose co host, after about 30 episodes, just said, we know there's money coming in, but I don't trust you anymore and I don't want to be a part of this anymore.

Take down all the episodes that I worked on, and they didn't have a prior agreement and now they're embroiled in litigation in court, and there's not enough money to justify that kind of a fight. And yet they're sort of stuck doing it because neither of the parties had the foresight to talk about it early on.

And it's a shame because it's a good show. So the original host, the creator of the show, is recreating those old episodes with a new co host. And it's sort of.

That's a little bit of a thumb in the eye as well.

Danny Brown: 00:21:50

Yeah. Kind of like Taylor's version when she had the music taken away from her and she made her own version. That's an interesting approach.

I hadn't even thought of that. Where you sort of recreate and republish the episodes Prior to the split, if you like.

Gordon Firemark: 00:22:03

That particular show is sort of instructional. So it's step one, step two, step three. So you kind of have to go back and reteach those early steps.

Danny Brown: 00:22:10

Yeah, it's not something where you just say, I'll take it down and you'll get any money whatsoever. You can't do that. Well, that brings me to kind of like a knock on question for this.

It's tied to the, you know, the legal agreements between cohorts is if you're signing with a network or an opportunity to sign with a network and now you've got the network to deal, we've got sponsorship agreements. Does this network deal with it? Do you bring it in? But then you've got to give someone to the network, et cetera. What have you come across that.

What's your general advice for podcasters that may be thinking about joining a network?

Gordon Firemark: 00:22:43

Well, I think there's lots of value that some networks bring to the equation and that being the ad sales mechanism, if they have good ad sales track record, I would call it.

There are lots of networks out there that are really little more than an aggregation of content without a whole lot of support or other value added to the network. Maybe a little cross promotion across the shows on the network and so on.

So really you have to analyze how is this going to be good for us for our show, for my business here?

If they're good at selling ads and they're good at marketing and promoting and they provide some production services, then yeah, it can be really worthwhile.

You need to hang on to, or at least be be mindful about who owns the content, who owns the title of the show, who owns the right to continue after this network relationship may come to an end. You know, similar questions to a prenup. What happens if one of the co hosts leaves? How do we divide the money? How often do we get paid?

When do we get paid? The.

The biggest complaint I hear from podcasters about their networks is that network doesn't pay them for months and months and months and months after they run an ad. And some of that is a function of the way ad sales works.

And you know, it's invoice and bill and collect and then we only pay when we've actually collected the money. The way I think of it is if the network says you should run an ad, then they should pay you for running that ad on day one.

And it's their business, it's their job to collect that money. If they don't collect, that's their business failure, not yours. You delivered what you promised.

And so it's a sticking point in some of the negotiations with networks.

And so at the very least, you want to sort of liquidate any amounts owed within a certain time frame and require the network to do its due diligence to collect and those kinds of things.

Danny Brown: 00:24:37

Yeah. And I guess then because you're running ads and it's now down to the network as to which ads come in, you know, which ad platform use, et cetera.

I guess it's when thinking ahead as a podcast that's joining our network, making it clear as well, if there's certain content that you don't agree with, for whatever kind of personal beliefs you may have, you can't run ads. And if that's going to cause an issue, are we going to go over the network anyway, or can we bypass just these ads, et cetera?

I guess you want to make all that clear up front as well when you're trying to sit down and discuss things.

Gordon Firemark: 00:25:08

Yeah, Approval rights is an important thing for the. Well, for both sides, actually. You don't want the. The network doesn't want. You run ads for unsavory brands and people and things like that either.

And so that's something that's pretty easy to sort of make mutual.

If either party doesn't like the choice of this sponsor or this particular ad copy or something like that, then they have a right to either, you know, pull the ad or restructure it somehow to change it to make it palatable. I think that's a reasonable approach. And I haven't encountered a lot of networks that object to that kind of thing.

Danny Brown: 00:25:42

Well, yes, it kind of ties back as well when co hosts go their different ways, but the show remains, and the co host may all be really tied to the show from a recognition point of view. So even though I've left the show or someone's left the show, I'm. Or you or Mark or anybody is recognized as a part of a podcast.

And I'm curious if the remaining podcasters then run ads or just run content that was completely opposite to the person that's no longer there. Does that person have any kind of comeback or not? Or is that because they've gone now? They have no.

Gordon Firemark: 00:26:15

Boy, that's a tough one.

Danny Brown: 00:26:17

I gave you a softball earlier, mate.

Gordon Firemark: 00:26:19

Well, yeah, I think if you're talking about dynamically inserted ads in old episodes, then I could see a co host who's no longer part of the show objecting to. Oh, now you're running ads for liquor or sex toys or something like that, I could see those objections being raised and have to be addressed.

I think that can be addressed in the prenup. It can be addressed in the dissolution arrangement if there's a settlement agreement or something like that.

I suspect more often than not it's not addressed and then it, you know, I haven't heard about that being an issue often.

But you know, I don't think the network or the other remaining podcasters have any business telling the departing member what they can and can't do with their life going forward. So that sort of has to cut both ways.

Danny Brown: 00:27:08

Now, one thing I did want to ask you about because we again, we see this a lot when people were first starting a podcast and they're asking about how do I trademark, Should I trademark my podcast? Should I copyright my podcast? And the difference between trademark and copyright?

And I know you're a big fan of getting trademarks and doing it properly, but what's the process for that? Is it long and convoluted?

Is it just a matter of once you've actually published something and it's out there, it's trademarked, or is that a bit different from.

Gordon Firemark: 00:27:41

No, it's quite different. So with copyright, remember, that's what protects the actual work, the content of your show.

The copyright springs into existence the moment the work is created. If it's original and it's recorded, you own a copyright and it lasts for that good long time. Trademark is the brand.

The title of the show, maybe certain elements, maybe even the logo or the COVID art could be considered a trademark. It's the distinctive mark or symbol or phrasing that identifies it as coming from a particular source.

So when we see in and around podcasting, we know it's you guys and that's, that's the brand.

In order to protect a brand, the step, first step is to adopt it, but then to really protect it, registration of that trademark with the appropriate governments is wise because that's what sort of puts the rest of the world on notice. Okay, they're using it as a brand. We should not do anything that's going to be causing confusion in the marketplace.

That's likelihood of confusion is trademark infringement. So I recommend registering the trademark for the title of your show as early again as possible.

These are the kinds of preventive maintenance things that you do to make sure that the show can persist without too much friction going forward. Where should you register? I'm a US based lawyer.

I think the vast majority of podcast listeners in the world, at least for English language shows are here in the US So I strongly recommend registering in the US but if you're based in another country and you have a large listenership there, it does make sense to register in the home country or wherever you have a large listener base. You know, it's a cost benefit analysis. Of course, the other thing is here in the US we're more litigious and we're more, I guess, confrontational.

And so folks are maybe a little more likely to step on your toes than you would encounter in kind of gentle Canada or the uk. But yeah, I think we need to analyze how broadly do we want to get this protection in place.

Good news is there's international treaties, so once you're registered in one place, getting registered in other places gets a little bit easier. But it is also somewhat expensive. So it's something we have to really consider before going hog wild.

Danny Brown: 00:30:09

Well, that's what I was going to ask you and you covered it there actually.

And your answer is, does it make sense to have multiple trademarks in multiple countries based on either audience size, where you're based, obviously where you're located, or can you just go for one trademark and then hopefully people see that and think, okay, we're not going to try and have a similar sounding name to, you know, to trade off that name because they've already got a trademark in place.

Gordon Firemark: 00:30:36

It's really a question of how much risk do you want to take with, with the possibility that someone in that other country is going to adopt a confusingly similar title or brand for their service or product and that. And is that going to cause a problem for your show?

If you feel like it would be a problem, you'd lose listeners or you'd lose credibility or your listeners would get confused and think that their terrible show is part of yours or something like that, then you want to be able to tell them to stop and have the force of law behind it.

Danny Brown: 00:31:06

And is there somewhere, I'm going to assume that if you've got a trademark, you'll be alerted if a similar name pops up. Or is there companies and platforms that you can use to set up alerts about names, et cetera?

Gordon Firemark: 00:31:19

Well, yes, certainly you can use Google alerts and tools like that to just identify anytime somebody uses the exact match or similar matches to what you're doing. There are also companies out there that do trademark monitoring services. It is incumbent on the owner of the trademark trademark to do that model.

We call it policing the trademark. Because if you don't you can eventually be essentially deemed to have abandoned your rights. So it is incumbent on the owners to. To do that work.

But hiring these trademark watch services, it's, you know, maybe $100 a year or something like that for. For that service. And I think it's worthwhile if you've got a brand worth protecting.

Danny Brown: 00:31:57

No, for sure. And I know, like I said, I do see especially on Reddit, I'm really active on Reddit and.

And that comes up quite a lot about trademark and, you know, I want to publish my. Something I'm always surprised at. So Pod News, industry publication.

POD News has a little search bar and you can type your show in there and it'll bring up details if there are any stories about you and where your podcast is listed. It's really useful for finding apps that you're listed on if you want to grab links to these apps.

k afterwards and. And there's: 2030

If I'm a new podcast, maybe I don't know about that kind of, you know, research, et cetera.

Gordon Firemark: 00:32:44

Yeah, this is one of my. I guess I should maybe do more teaching on this point.

But yeah, I think that selecting the title of your show is something that shouldn't be done too casually. I think people take it really seriously when they're looking at how can I convey what the show's about and.

And the excitement or whatever, but they don't think about the possibility that, yeah, there are 10 or 20 or sometimes even more shows with the same title. The other thing you have to remember is that, remember I said, when what is a trademark, it's a distinctive symbol or phrase or term.

If it's that widely used, it's not distinctive or probably not distinctive.

Maybe it was for the first adopter of that title, but because they've sort of sat on their rights and failed to protect it, they may be in some trouble there. So it has to be a distinctive title.

And that's the key is really choosing something that conveys what you want to convey, but also separates you from the other.

So when you're choosing a title, do that research and figure out what everybody else is doing and be different enough that you stand apart and that's how you get a protectable brand.

Danny Brown: 00:33:48

I like it. That map makes it a lot easier. Well, I say a lot easier. I'm not a lawyer. I know. So I just made a like it sound really flipping.

Gordon Firemark: 00:33:55

You know, all the good ones are getting taken. So get on it, do it quick.

Danny Brown: 00:33:59

Exactly. Well, Gordon, I could talk to you for hours on this because I know there's like, we've just covered five, six topics there.

There's so many more and we'll have to get you back on. We'll, you know, we'll talk more about this.

If you were to give like just one piece of advice for any podcaster or creator, whether that's starting out or a reasonable establishment now, thinking about legalities, what would be the one thing you'd recommend they do or the one thing to think about doing?

Gordon Firemark: 00:34:26

Well, I think it's sort of an umbrella that sort of covers the things we've talked about here and that is that whether you are in podcasting as a business or for your business or purely as a hobby, just something you're doing for fun, you must remember that what we're doing is media production. And media production is a business. It is something that should be thought of as a business.

And so put on that business hat a little bit from time to time and just sort of ask the questions, what would a real business be doing about this issue or this question? And you know, follow your nose a little bit. I think that's the key. Should you protect the brand? Should you be thinking about these copyright issues?

What's at risk if I don't get permission? What about this relationship with the co host or the. Or the co producers or the sponsor or the. Or the network?

All of these are big business questions that may not seem super important when you're a hobbyist, but you know, if someone else is a business owner or thinks of theirs as a business and they don't like what you're doing, you're going to hear from them. So better to be forearmed with good information and prepared for the worst. So I say get your legal and business stuff done sooner rather than later.

Get things in writing. You know, all that. What do you expect to hear from a lawyer?

Danny Brown: 00:35:44

Well, no, no. And like I mentioned at the very start of the episode there you have a lot of resources on your site which we will share soon.

Before we let people know where to find you and how to access these resources and get in touch with you as well, we are going to do one of our little segments which is our Jolly flattering ram.

Gordon Firemark: 00:36:05

The flattering ram.

Danny Brown: 00:36:11

And this is where we ask our guest to give a shout out. You know, there can be a lot of negativity in the world and podcast and creation, etc.

So we always like to finish on a positive note on every episode.

And we like to ask if our guest has anyone, any tool, any platform, anything that's doing cool, fun stuff in podcasting, et cetera, that you want to give a shout out to.

Gordon Firemark: 00:36:31

Well, first off, I've got to give big kudos. You already mentioned POD News and how you use that tool as a search for titles, and the podcast index that they've put together is really, really.

Is it. Is that the podcast? No, that's.

Danny Brown: 00:36:45

I think that's Adam and Dave. Yeah, yeah, yeah, I know James. Pod News.

Gordon Firemark: 00:36:49

Yeah. James is a great guy and he's doing a real service to this industry, both with the POD News newsletter and platform and podcast.

But also they're maintaining this index of all these, all the podcasts they can find out there. And the podcast index is the other one.

I think they're great and it's a great place to find and discover new material and certainly want to be indexed there.

And I also think that the folks, Brian Bartletta and Tom Webster at Sounds Profitable are doing important work in the podcasting space, research and data analysis and those kinds of things that can really help us get a better handle on what this industry is doing, where it's going, and what some of the threats that are out there are. So all of those folks are doing great work, and you folks at Captivate are fantastic too. I'm really impressed with your platform.

I have a show hosted on Captivate and I really like what I'm seeing and how easy it is to use. So kudos to you guys.

Danny Brown: 00:37:54

Well, thank you. I'll make sure to pass that on to our design and development team.

But yeah, the three that you mentioned there, POD News, Podcast Index, and Sounds Profitable. Awesome resources. I feel where anybody can access it.

Whether you're a hobbyist or you're a big production that, you know, that has a lot of budget and a lot of team members on you, it's good stuff for everybody. So I will be sure to leave links to those in the show notes.

So if you're listening to your favorite podcast app or on the website, just check out the show notes as usual, and the links will be there.

Speaking of links and show notes, Gordon, if anybody wants to find out more about yourself, the work you do as a podcast lawyer and the resources that you mentioned at the start and all the good stuff that you do. Where's the best place to connect with you and find you online?

Gordon Firemark: 00:38:38

Well, thank you. I am blessed with a distinctive name that's memorable and pretty easy to spell.

Gordonfiremark.com that's G O R-D O N F I R E M A R K.com Gordon is sort of the hub for the things that I do.

My law practice website, my online courses for creators, podcasters, entrepreneurs, as well as the forms and templates store that I have for podcast law forms that, you know, folks may want to use with their co hosts and there's a lot of that kind of stuff. Also finding me on YouTube and most social media. GFiremark is the handle so that's pretty easy to find.

Instagram, it happens to be my full name, Gordon Firemark. But other than that, G Firemark.

And yeah, reach out, subscribe, you know, find my stuff and and get in touch if you are doing May I just Danny, if you don't mind. If you are doing shows with guests, please use a release form with your guests.

Ask them to sign a consent that they are willing to be recorded that you're willing to okay to publish the material that you can edit as needed as long as you don't change the meaning of things too dramatically. And that way you don't end up getting a former guest who says you got to take that episode down, I don't like you anymore or whatever.

And that will get you onto my email. Even if you're not going to do a host a show with guests, get on my email list so I can keep in touch with you.

And more of that free information is coming out every week, so I hope you'll follow along.

Danny Brown: 00:40:08

And that is great advice and a nice reminder for Mark and I to get a little checkbox added to our intake form, et cetera. But yeah, I 100% agree. I've got one of my other podcasts. I've just got a link to a Google Doc that just signed off on some information.

So yeah, great advice there as always.

And as mentioned, if you're looking to connect with Gordon, find out what he does, all the really cool resources that he has on his website and just follow him online. He's a super smart guy, really nice guy, really approach. I will leave all the links to those in the show notes, so be sure to check them out.

Once again, speaking like a broken record, but make sure to check out the show notes and the links that will be there to take you over to Gordon.

So again, Gordon, I really appreciate you coming on today and opening up and simplifying, if you like, some of the questions and answers around the legalities of podcasting.

Gordon Firemark: 00:40:54

Well, it's been a real pleasure, Danny. Thank you for having me. I'm here to share.

I want to, you know, my mission really is to get more creators the opportunities to achieve the impact and influence and income that they deserve from what they're doing. So that's why I'm here.

Danny Brown: 00:41:09

Awesome. Thank you for listening to in and Around Podcasting.

If you know someone else that might enjoy the show, please send them over to in and around podcasting.com or listen on the favorite podcast app. And if you wanted to throw us a review, you can do that really easily at inrun podcasting.com forward/review.

Until the next time, keep doing what you're doing. It's important. Bye.

Gordon Firemark: 00:41:30

Bye.