Answers from an Actual Lawyer
Written by Jeanine Percival Wright, Simplecast CLO, COO, and actual lawyer.
Note that this is general information, not legal advice, and does not form an attorney-client relationship. Please consult a specialized lawyer to address specific legal issues with respect to co-host agreements!
Just like you hear about the high rates of divorce, you also hear about the high rates of creators eventually having divergent visions from their co-creators, co-producers, and co-hosts. And just like what sometimes happens in divorce, when two people decide to go their separate ways, things can get messy in the split.
Very often, those disputes result in neither party effectively being able to do anything with what they made together because it’s not clear who owns the rights to what. The solution here is a pretty easy one: make sure you’ve got a clear and concise co-host or co-creator agreement. This is very similar to a co-authorship agreement–think of it like a podcast prenup. This way, all parties have a mutual understanding of what their roles and rights are, ruling out future misunderstandings and allowing you to focus on your great storytelling!
How you go about making one: A lawyer is always going to tell you that you should be talking to a lawyer (you should!), but even scribbling an agreement on a napkin is way better than nothing. An even better alternative to scribbling on a napkin is, at the very least, having a discussion about your respective roles, responsibilities and rights, putting it in an email together, and then sending it to each other. Ta-da! You have a timestamped record that describes the agreement you reached. That, at least, gives you something to work off of should you have a disagreement further down the line. In short, make sure you at least put something in writing.
A more formalized and official version of this can be drafted by a lawyer, or you can use a sample like this and update it as you see fit. (Just remember, samples aren’t legal advice because we don’t know your specific facts. Also, we’re not promising to keep them up to date with the law just by linking them here in this article, so it’s on you to get it checked out before you rely on it!) There you go! You’ve got a co-host agreement.
So, what goes into a co-host agreement? You should first define what you mean by “co-host.” Are you really joint owners and joint creators? And if so, what is the relationship between the two of you? Who is going to be able to control what you do with the podcast now and down the road? Who has the right to the money that you make on the podcast? Who’s going to be responsible if something goes wrong with the podcast? How are you going to split responsibility for all of the work (not just the on air part) that goes into making a podcast a success? How are you going to split any revenue? No matter what your arrangement is, it is good practice to document each parties’ rights and responsibilities.
But if your arrangement is that one of you is just a co-host in terms of providing on-air talent and the podcast truly belongs to the other partner (for example, who is the one fronting cash for the venture, show running, creative directing, slogging through editing, hunting down sponsors, finding and arranging guests, responding to listeners, growing your audience, etc.) then that definitely needs to be documented, because otherwise it’s pretty easy to make the implication (and, in fact, in most cases the law will assume!) that “co-hosts” means you were making it together, you own it together, you control it together, and you share evenly in the proceeds.
Next, you want to lay out things like who has the rights to distribute the podcast: do you both have the rights, or does only one of you have the rights? Do either of you have the rights to repurpose your show for other things? Let’s say that Netflix approaches you to make a show about your podcast–do both of you have to decide that together? And who has the rights to the income you may make? What happens when something goes wrong? And when the tax authorities come knocking, who is responsible for paying taxes and responding to audits (Ugh. Knock on wood!)?
Don’t just plan for failure–plan for success, too: Let’s say you never have any kind of hideous falling-out or podcaster divorce, but you do have a co-host for 100 episodes, and those episodes are very popular. However, your co-host’s acting career really picks up and they don’t have time to podcast with you anymore. Fantastic for them! But when somebody comes to you and says “We love what you’re doing, and we’d like to put ads in all of your episodes, including your back catalogue,” you’re going to have to make a lot of representations and warranties that you still have the rights to distribute your show (the old episodes and the new ones), continue to use your ex-co-host’s voice and any of their life details in the podcast (their “name and likeness”), and make money off of your future and previous episodes. The same is true if you have exclusive content, merchandise, and donations linked to specific episodes. And that’s exactly where a co-host agreement will save you tons of trouble and time.
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