Essentials
Podcasting Essentials
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As podcasting evolves, you might find yourself making a podcast in your workplace. Whether you've been specifically hired to create the show, or you're branching out from your regular duties, it's natural to have questions about what you do or do not own, especially after you've left the company. We've found that it depends on three things.
1: Was there an agreement between you and your company that governs you creating a podcast for that company and, if so, what all was covered by your agreement with the company?
For most major employers, when you start at a company, you'll have to sign both an offer letter and what’s called a confidential information and invention assignment agreement. That basically means that anything you create that’s related to your job while you're at work for that company was created for the company as a work for hire arrangement. Basically, you were getting paid to create that intellectual property for the company, and now the company owns it. You don’t have any ongoing rights in the intellectual property and have no control over how it is modified, used, sold, etc.
Where it gets extra tricky, especially in podcasting, is that sometimes the work that you’re creating can be very personal. If you’re the host, you’re using your own name, voice and likeness. If you’re also a writer or contributing to the creative content of the podcast on the fly, often you're using your own personal anecdotes, life experiences, and stories. Usually, even in those cases, the companies that you're working for–who are paying for you to create the content–want to go as far as possible to make sure that that content is still owned by them, including anything that could later be made from it (for example, a television show, film, novel, etc). Standard form confidential information and invention assignment agreements don’t typically include rights to use your name, voice, likeness, life story, etc.
Most of what governs this is in the contractual arrangement between the parties. There can be some defaults under the law, depending on what state (and country!) you're an employee in. In some jurisdictions, what the company does not explicitly lay claim to by way of the agreement remains owned by the creator, especially if the work is outside the employee’s typical job responsibilities.
2: While you were at the company, was creating that podcast within the scope of what you were doing as part of your job?
Imagine this: your day-to-day job at a company is as an engineer. The marketing team is floating creating a podcast, but doesn’t have the headcount to do it. You think podcasting is cool (who doesn’t?), so you step in, and take it over–it’s not part of your regular full-time duties, and, from your perspective, you’re doing it basically as a favor. This is where podcast ownership can get very ambiguous, legally speaking.
Because the scope of your relationship with the company is that you perform engineering services, anything you do beyond that gets murky–your job pays you to create code, and it owns that code, of course. It likely also has a claim to other peripheral intellectual property you create–like your ideas for a new product offering or your writings and drawings related to your projects. But your creative endeavors completely unrelated to your job as an engineer? Well, are they paying you for the podcast? What if you’re a salaried employee? Do you create it at work? Use work equipment to do it? Distribute it through a service (the best one being Simplecast, BTW) paid for by your work? You can see how it can become unclear as to who is the rightful owner of the work while the employee works for the company and, when the disputes usually arise, after the employee leaves the company.
The engineering example above may seem kind of far-fetched, but consider journalists who previously worked in print and digital, who then get pulled into hosting podcasts. Or internal comms and training people who do the same. The line is becoming more blurred as more companies transition into podcasting, sometimes by trying to utilize talent they already have in-house.
It’s often a bottom-up process, too. Internal talent says that it makes sense for a brand to have a podcast, and they begin pitching one. A company is on board, and tells them to go ahead. It’s at this point that it makes sense for everyone to sit down and hammer out some paperwork. The alternative is that the employees can say that they created the show outside of the scope of their work and they own the IP, and the company could say, well, no way, it’s the evolution of media, and what we hired you to do.
The absolute safest thing to do, if you have a side project that you're working on, that you believe is yours, and you don't want the company to have any ownership over, is send something formal to the company (usually to HR) saying that you are reserving your rights in this project. For employees in California and New York, as well as a lot of other states, you’re allowed to do this at any time under your confidential information invention and assignment agreement. (Doing this isn’t at all unusual–the Simplecast team is a pretty side-project-y bunch, so they’re regularly sending updates this way. The number of musicians on the team is bananas–we should put out an album!)
Especially if you're a creator or performer as part of your job for your company, depending on what you’ve signed when you initially start working with a company or during your tenure, the company may have the ability to negotiate with you on ownership. For instance, they may have the right of first offer or the right of first refusal–this means that they may have the chance to option or buy the project first, before you take it anywhere else. They also might have the chance to try and beat any offers you’ve gotten after you’ve shopped it. You may or may not want to agree to these provisions, but you should absolutely be aware of what you’re signing on to.
3: Are you the host?
When you’re a host, you literally are the voice of the podcast and, unless you’re podcasting under a pseudonym, your name is attached to the show, as well. There's a lot of law in a lot of different States, particularly California and New York (which have the most progressive entertainment law statutes in the United States), that somebody does own their rights in their voice, name, and likeness. Check out this article discussing some of the well-known voice misappropriation cases in California involving Bette Midler and Tom Waits to learn more.
If the employment relationship with the company does not already include a license for the company to use your voice, name and likeness–even after you no longer work for the company–in a written agreement with you, and you host a podcast for the company, when you decide to leave, the company’s rights as to whether they can continue to distribute the show are unclear.
When an employee who was a host leaves a company, they could say to the company that even though the company had the rights to the intellectual property the employee created, the company doesn’t have the right to continue to use the employee’s name, voice or likeness in the podcast. This can put the company in a difficult position. The concept, idea and RSS feed may belong to the company, and the company may want to continue the show, but the employee may legally be able to insist that the company no longer distribute the episodes or use any collateral related to the podcast that includes the employee’s voice, picture or name.
You can think about this as similar to the way companies can use employee photos. If the company didn’t get a photo release for an employee and they leave, the company does not have the right to continue to use that photo of their likeness for all time. The same can be said of their voice and name.
Ultimately, your rights come down to the contracts and agreements you may have signed when you were hired. If you didn’t sign anything, you may want to think about asking to get an agreement in place now, just in case.