Top Legal Mistakes Podcasters Make and How to Avoid Them with Gordon Firemark

Speaker:00:00:00

If you've ever listened to any of my podcasts before, you have seen our guest

 

Speaker:00:00:03

then because he has been around for quite some time. And every time I get

 

Speaker:00:00:07

the chance, I will talk to him and ask him. He is quite

 

Speaker:00:00:10

far, far and away my favorite podcast lawyer. In fact, he is

 

Speaker:00:00:14

the podcast lawyer. We are chatting with Gordon Firemark, the

 

Speaker:00:00:18

podcast lawyer. You can learn more about him at gordanfiremark.com,

 

Speaker:00:00:22

checking out his easy legal for podcasters course, giving

 

Speaker:00:00:25

you all the things you need in order to protect your podcast, to protect

 

Speaker:00:00:29

your brand. And he's also got

 

Speaker:00:00:31

podcastlawforms.com, a great place for

 

Speaker:00:00:35

legal templates to help you get your stuff underway. Gordon, thank you for

 

Speaker:00:00:39

joining me, and great to see you again, sir. Great to see you, Matthew. It's

 

Speaker:00:00:42

always a pleasure. I'm glad to be here. So, of course, you know, again, I've

 

Speaker:00:00:45

I've heard this, but for those who've never heard before, tell us how did you

 

Speaker:00:00:48

get your start into podcasting? Not just on the law side, but generally, like,

 

Speaker:00:00:52

when did you first pick up the microphone? I got involved

 

Speaker:00:00:56

in in theater audio, at a very young age.

 

Speaker:00:00:59

I I I mean, I I got hooked into the theater world when I was,

 

Speaker:00:01:03

like, five years old, six years old, kindergartner. And, by the time I was in

 

Speaker:00:01:06

junior high, I was running the lights and sound at school variety shows and things

 

Speaker:00:01:10

like that. Did that all through high school and into college as a professional sound

 

Speaker:00:01:14

engineer in in live theater environments. And it

 

Speaker:00:01:18

was only after college when I shifted into radio, TV, and film

 

Speaker:00:01:21

as my major, that I thought about going to law school.

 

Speaker:00:01:25

And so this has been with me for a really long time. And

 

Speaker:00:01:29

then the podcasting thing came about when I started my

 

Speaker:00:01:32

own practice, and I was looking for ways to market. Pretty much as soon as

 

Speaker:00:01:36

podcasting became a thing, I,

 

Speaker:00:01:40

I geeked out on it. What so I

 

Speaker:00:01:44

mean alright. So you've been doing, you know, podcast

 

Speaker:00:01:48

since, what, like, 02/2009, '2 thousand '10 ish? I was first asked

 

Speaker:00:01:52

as a guest on some shows in about 02/2006, I think it was.

 

Speaker:00:01:55

And and when that guy who we ended up doing a show together for

 

Speaker:00:01:59

about a year, and then, eventually, his boss made him stop

 

Speaker:00:02:03

because he was moonlighting according to the boss. And,

 

Speaker:00:02:06

so I by that time, I was hooked, and I decided I would go out

 

Speaker:00:02:09

and find a cohost and get started. And then my wife and I well, my

 

Speaker:00:02:13

wife had the baby. I'd I was there for the fun part. But

 

Speaker:00:02:17

but, so that, you know, hung things up for a

 

Speaker:00:02:20

few months. But, yeah, it was mid two thousand nine when we launched. That's, what,

 

Speaker:00:02:23

sixteen years ago now. So at the at the time, you

 

Speaker:00:02:27

were thinking about how to market your well, it was a step

 

Speaker:00:02:31

ostensibly entertainment law firm, but then you decided,

 

Speaker:00:02:35

well, there's a lot going on in the podcasting world. Maybe I should have a

 

Speaker:00:02:38

little bit more of a core focus in this space in particular. Well, I

 

Speaker:00:02:42

still practice a broad base of entertainment law. It just happens that podcasters

 

Speaker:00:02:46

are are you know, they're my people, so I like to work with them. And

 

Speaker:00:02:49

and, I've targeted a lot of my marketing in that direction. The fact of it

 

Speaker:00:02:53

is the show, the that original show from sixteen years ago, still going strong.

 

Speaker:00:02:58

It's a monthly entertainment law roundup kind of a

 

Speaker:00:03:02

show we do call entertainment law update, real original name.

 

Speaker:00:03:05

And, Yeah. We've been doing it consistently on a

 

Speaker:00:03:09

monthly basis since 02/2009. So we're at recording a hundred and seventy

 

Speaker:00:03:12

seventh episode next week or the later this week, actually. So Wow.

 

Speaker:00:03:16

Congratulations. Feels pretty good. So as someone who's been

 

Speaker:00:03:20

in this space for quite some time, have seen podcasters from all levels, right, just

 

Speaker:00:03:24

starting out to veterans who have been around for, I guess, I can now say

 

Speaker:00:03:27

decades. You know, what are some of the most

 

Speaker:00:03:31

common legal stumbles that

 

Speaker:00:03:34

podcasters are making or are bound to make,

 

Speaker:00:03:38

if they're not putting too much thought into this process? Well, I mean, the first

 

Speaker:00:03:42

thing is is that that thing you just said, not putting too much

 

Speaker:00:03:45

thought into this or or waiting too long to start getting themselves

 

Speaker:00:03:49

organized from a legal standpoint. But, you know, from there, it's

 

Speaker:00:03:53

it's just not taking taking it seriously as

 

Speaker:00:03:57

a kind of a business thing. You know, if you're if you're podcasting as the

 

Speaker:00:04:00

business, then you need to think about setting it up as a business with the

 

Speaker:00:04:03

corporation or an LLC or something like that, and and

 

Speaker:00:04:07

having good contracts and those kinds of things in place, especially if you're

 

Speaker:00:04:11

working with a cohost or something like that. Having what I call a

 

Speaker:00:04:14

podcast prenup, kinda articulates the

 

Speaker:00:04:18

relationship and and addresses not only what happens when things are going well, but

 

Speaker:00:04:22

also what if it doesn't. You know? How do we how do we go our

 

Speaker:00:04:25

separate ways in a way that everybody's comfortable with? And,

 

Speaker:00:04:30

and so that prenup becomes a cohost agreement or collaboration

 

Speaker:00:04:33

agreement or joint venture, whatever, you know, can take different forms.

 

Speaker:00:04:38

The other area of areas, of course, are intellectual

 

Speaker:00:04:41

property. You know, you you,

 

Speaker:00:04:45

neglect copyright law at your peril, both as a creator where you

 

Speaker:00:04:49

own the copyrights and if you don't do what you can to protect them, you

 

Speaker:00:04:52

may find others using your content. But also when you use people's music

 

Speaker:00:04:56

or clips in your show, you better know the rules and do it right, or

 

Speaker:00:05:00

or you're gonna have, pushback there. And I'd say

 

Speaker:00:05:03

the most important legal thing to

 

Speaker:00:05:07

do for most podcasters is, look at your title, make

 

Speaker:00:05:11

sure it's a distinctive brand name that you can protect with a

 

Speaker:00:05:14

trademark. And registering a trademark is a an important step

 

Speaker:00:05:18

in making sure you don't end up at one of the 12 shows with the

 

Speaker:00:05:21

same title in the marketplace. Or worst case, you are copying

 

Speaker:00:05:25

somebody who already has that trademark. You've launched the show, and now you gotta go

 

Speaker:00:05:28

back and redo a bunch of stuff or undo a bunch of things. Yeah. Do

 

Speaker:00:05:32

a search before you choose your title if you're if you can so that, you

 

Speaker:00:05:35

know, you're not stepping on somebody's toes. How do you know if if when you

 

Speaker:00:05:39

search for a name, whether or not that name is protected

 

Speaker:00:05:43

versus just being common or popular?

 

Speaker:00:05:47

Well, what can be protected under the law is

 

Speaker:00:05:50

distinctive. So it has to be it has to reach a a

 

Speaker:00:05:54

certain threshold of distinctiveness. So if I call my show the biz

 

Speaker:00:05:58

the the basket weaving podcast, then there can be 12 basket

 

Speaker:00:06:01

weaving podcasts, and nobody's gonna have a claim because it's

 

Speaker:00:06:05

purely descriptive of what you get. Now over time,

 

Speaker:00:06:09

I mentioned my own show, Entertainment Law Update. You know, I've been doing it for

 

Speaker:00:06:12

sixteen years. It has acquired some distinctiveness and in the sense

 

Speaker:00:06:16

that there's a secondary meaning. When when people go looking

 

Speaker:00:06:20

for my show, they know they're looking for my show, Entertainment Law Update.

 

Speaker:00:06:24

So that is now protectable and registerable as a trademark.

 

Speaker:00:06:28

But, how do you know well, first of all, it doesn't

 

Speaker:00:06:31

matter whether it's registered or not. If you're not the first in the marketplace with

 

Speaker:00:06:35

that title, think about choosing a different title. Don't be

 

Speaker:00:06:39

following in other people's footsteps with with your title because that's

 

Speaker:00:06:43

leads to confusion, and that's what trademark law is really about protecting against.

 

Speaker:00:06:48

At what point does a you know,

 

Speaker:00:06:52

it makes sense. You're a business. Right? You're a brand. There's a lot more things

 

Speaker:00:06:55

that you have to think about and protect, and, you know, you've got clients

 

Speaker:00:06:59

and sponsors and all that. But if I'm just

 

Speaker:00:07:03

average Joe, average Jane, thinking about starting up a podcast,

 

Speaker:00:07:07

how much do I really have to worry about this? Well, there

 

Speaker:00:07:11

I would say there's different kinds of podcasters. There's Average Joe or

 

Speaker:00:07:14

Jane doing a podcast as sort of a hobby, a side thing that they're just

 

Speaker:00:07:18

have doing for the fun of it. And, you know, they wanna maybe make have

 

Speaker:00:07:22

a little impact and influence, but is it really a a business?

 

Speaker:00:07:25

Probably not. They don't need to necessarily worry too much, certainly not

 

Speaker:00:07:29

about the business structure, the LLC, or the corporation.

 

Speaker:00:07:33

Trademark stuff, I think you still don't want someone else coming along and

 

Speaker:00:07:36

using the same name. That's gonna be,

 

Speaker:00:07:40

it's gonna dilute the value of what you build over time. So

 

Speaker:00:07:44

that, I think, is still pretty important. Then there are those who are doing it

 

Speaker:00:07:47

as a business, and they need to think very hard about this, about protecting

 

Speaker:00:07:52

what they're building structurally, in

 

Speaker:00:07:55

terms of ownership as well as the the title and things like that and and

 

Speaker:00:07:59

having really good strong contracts with the folks that they do business with.

 

Speaker:00:08:03

And then there's the third group who are podcasting as an

 

Speaker:00:08:06

adjunct or as a branch of their business, oftentimes a marketing arm

 

Speaker:00:08:10

for the business. Let's say you run a law practice and you wanna

 

Speaker:00:08:14

attract more folks to your practice. You hold yourself out, put yourself out there

 

Speaker:00:08:17

as an expert. Maybe they don't need the LLC, but

 

Speaker:00:08:21

they still need to protect the brand and and think about

 

Speaker:00:08:25

not saying the wrong thing, hurting someone's reputation, defamation

 

Speaker:00:08:29

kinds of things, or infringing on copyright. So I think

 

Speaker:00:08:32

everybody needs to be mindful of you

 

Speaker:00:08:36

not using content they don't own. I guess that's the that's probably the most

 

Speaker:00:08:40

common complaint I see. Yeah. And that's that's always one of the common

 

Speaker:00:08:43

questions that you see in a lot of support groups and support chats

 

Speaker:00:08:47

around podcasting. You know? Can I use this song? Can I use this

 

Speaker:00:08:51

music? And, you know, I think ever since I met you, my

 

Speaker:00:08:55

my test for that has been very simple. Do you own it? Nope. Then no.

 

Speaker:00:08:59

Right, like, it's it's just that simple. So for those who

 

Speaker:00:09:03

are really this is more serious. They've got plans for

 

Speaker:00:09:07

monetization, for building a brand off of it, for making a

 

Speaker:00:09:10

ton of money off of it, or it's or it's building upon an existing

 

Speaker:00:09:14

brand, which has other assets and things that are worth protecting.

 

Speaker:00:09:18

You have the, you know, the podcasters easy

 

Speaker:00:09:22

legal for podcasters. What is that all about? What is that

 

Speaker:00:09:26

system like? What will people expect to get if they sign up for this program?

 

Speaker:00:09:29

Well, so when I started practicing as an as a as a podcast lawyer

 

Speaker:00:09:33

specifically, I I realized that I was doing these things for folks

 

Speaker:00:09:37

who could afford and wanted to hire lawyers to do these things, forming the

 

Speaker:00:09:40

LLC or the corporation, doing the trademarks, the copyrights, the the

 

Speaker:00:09:44

contracts, getting it all getting it all, squared away

 

Speaker:00:09:48

for them, the done for you kind of a model. And then I realized there's

 

Speaker:00:09:51

a lot of folks who want to get this stuff done or need to get

 

Speaker:00:09:54

this stuff done, but don't have the resources or the inclination

 

Speaker:00:09:57

to hire me to do it for them. So I wanted to create something that

 

Speaker:00:10:00

was a little more accessible and and would allow them to do it

 

Speaker:00:10:04

themselves with guidance and

 

Speaker:00:10:07

instruction and forms and templates from me. So the Easy Legal for

 

Speaker:00:10:11

Broadcasters program is a is a four part course that

 

Speaker:00:10:14

teaches these things along with literally

 

Speaker:00:10:18

step by step how to instructional videos on how to form that

 

Speaker:00:10:22

LLC, how to register that trademark, that copyright, what to put in where in

 

Speaker:00:10:26

the contract. And we give you all the contracts and templates and things that

 

Speaker:00:10:29

you need to to get your business up and running, as

 

Speaker:00:10:33

smoothly and quickly as possible. So it is what it says. Easy

 

Speaker:00:10:37

legal for podcasters. And it is in fact just that. Now, again,

 

Speaker:00:10:41

you're not someone now we're talking to someone again. Back to that average Joe, average

 

Speaker:00:10:44

Dane. You have these podcast law forms. What are some of

 

Speaker:00:10:48

the common ones that someone who's hearing this is like, ugh, I don't think I

 

Speaker:00:10:51

need all that, but there's definitely probably a few things that are probably helpful. What

 

Speaker:00:10:55

are some of those real helpful forms and resources that law forms

 

Speaker:00:10:59

would be good for that, you know, just starting out podcast or that indie podcast?

 

Speaker:00:11:02

Well, I think that podcast prenup is definitely one. If you're starting a show with

 

Speaker:00:11:06

other people, you wanna establish the nature of that relationship. And

 

Speaker:00:11:09

it's, you know, it's fundamentally a partnership agreement of some sort, but it

 

Speaker:00:11:13

outlines the specifics of who's responsible for doing what, those kinds

 

Speaker:00:11:16

of things. If you are, working with guests, I offer a

 

Speaker:00:11:20

free guest release agreement that is essentially getting

 

Speaker:00:11:24

written consent for the recording and the editing and the publication

 

Speaker:00:11:28

of the episode without which, you may find yourself with a

 

Speaker:00:11:31

guest who later comes back and says, I don't like that. Take it down. And

 

Speaker:00:11:35

you're kinda kind of in a rock and hard place situation,

 

Speaker:00:11:39

especially if you have sponsors that are paying to have that episode up, and now

 

Speaker:00:11:42

you've got a issue there. So, obviously, you don't wanna

 

Speaker:00:11:46

alienate good friends who are guests, but at the same time, you put a lot

 

Speaker:00:11:50

of effort into making a show, so you wanna keep that up.

 

Speaker:00:11:54

I will admit I'm one of those people who definitely started using the podcast

 

Speaker:00:11:57

guest disclaimer form. Not that I've ever had a problem with it, but

 

Speaker:00:12:01

it's one of those places, and this is true of many facets of

 

Speaker:00:12:05

the law, where it's not a problem until it is.

 

Speaker:00:12:09

And something I've always said to my kids to an annoying level, and if

 

Speaker:00:12:13

you ask them, they'll, you know, repeat it back to you with kind of that

 

Speaker:00:12:16

groan, snarky tone. Right? It's better to have it and not need it than need

 

Speaker:00:12:20

it and not have it. And I imagine that is a cornerstone of a lot

 

Speaker:00:12:23

of what you do. It it's also I agree a %, but I also

 

Speaker:00:12:27

think that when you present your

 

Speaker:00:12:30

your face to the guest or whoever as a business, hey. I'm,

 

Speaker:00:12:34

you know, I'm serious about this. There's this thing I need you to look at

 

Speaker:00:12:37

and sign or click the box or whatever it is. Now they

 

Speaker:00:12:41

take it seriously too, and they will remember. You know?

 

Speaker:00:12:44

Maybe maybe among those people who've never been a problem,

 

Speaker:00:12:48

someone once got a little irritated and started thinking, I should get them to take

 

Speaker:00:12:51

it out, but I signed that thing. So you never heard anything more

 

Speaker:00:12:55

about it. Mission accomplished. Yeah. Well, that's that's the lucky

 

Speaker:00:12:59

way to go. One place that I'm sure you've been discussing a lot, we we've

 

Speaker:00:13:03

only kinda, you know, dipped around the the edges a little bit, but I'm curious

 

Speaker:00:13:07

what you're seeing. What what's happening with AI and

 

Speaker:00:13:10

podcasting? More so on the on the

 

Speaker:00:13:14

folks who are using AI to completely generate or

 

Speaker:00:13:17

create their content, what are some pitfalls that they're gonna need to be watching out

 

Speaker:00:13:21

for? What are some things on the horizon that you think are coming down the

 

Speaker:00:13:24

pipeline for them? Great, great question, and it is definitely the

 

Speaker:00:13:28

hot topic these days. The the AI is a bit of a double edged sword.

 

Speaker:00:13:31

You know? It's a great tool. It's very useful, very helpful. In

 

Speaker:00:13:35

order to do that, of course, it has had to go out and slurp up

 

Speaker:00:13:38

a lot of content from the Internet, and and that it's being all the AI

 

Speaker:00:13:42

companies are being sued over this ingestion and

 

Speaker:00:13:46

training based on existing copyrighted works, and these

 

Speaker:00:13:49

lawsuits are, mostly just in the beginning stages. One of them

 

Speaker:00:13:53

recently came down, in a verdict that said not a

 

Speaker:00:13:57

verdict, a court ruling that said what the AI

 

Speaker:00:14:00

company had done ingesting this particular content was not fair

 

Speaker:00:14:04

use, So that means it is copyright infringement. And now we move on

 

Speaker:00:14:08

to how much they have to pay that phase. So that's one

 

Speaker:00:14:11

side of it. But the other side, the the creator side is we

 

Speaker:00:14:15

use these tools somewhat at our peril because, a, they

 

Speaker:00:14:19

don't always get it right. So if you use the AI to write a script

 

Speaker:00:14:22

about a particular topic, it could be filled with some

 

Speaker:00:14:26

errors and the mistakes can be troublesome, especially if you're talking about a

 

Speaker:00:14:30

particular there was a situation where someone used an AI to write an article about

 

Speaker:00:14:33

a person and the AI kind of assumed

 

Speaker:00:14:37

a different person was the person we were talking about. And that person

 

Speaker:00:14:41

had a criminal record, and the person we were really talking about didn't, and it

 

Speaker:00:14:45

became the whole defamation thing. The publisher of the show who put

 

Speaker:00:14:48

that out was in the crosshairs of the lawsuit

 

Speaker:00:14:52

over false information that hurt this person's reputation.

 

Speaker:00:14:56

So that's apparel. Another side of this is

 

Speaker:00:14:59

that the copyright office has generally held that material

 

Speaker:00:15:03

that's generated by artificial intelligence isn't entitled

 

Speaker:00:15:07

to copyright protection. So if you're using it to craft the whole episode,

 

Speaker:00:15:11

you're not gonna be able to claim ownership of that episode

 

Speaker:00:15:15

and prevent other people from copying it.

 

Speaker:00:15:19

That's interesting. Yeah. And the theory is that copyright is about protecting

 

Speaker:00:15:23

human authorship. So no human author and this is true

 

Speaker:00:15:27

of photographs that have been taken by

 

Speaker:00:15:31

there's a there was a monkey selfie case a number of years ago. There was

 

Speaker:00:15:34

a case involving an elephant that painted using a paintbrush it held

 

Speaker:00:15:38

in its trunk. And, again, the Copyright Office has consistently said, nope. Those don't get

 

Speaker:00:15:42

copyright. They don't they're not protected. Now just recently,

 

Speaker:00:15:46

like in the last week or two, there was a case where the copyright

 

Speaker:00:15:50

office did grant copyright to an AI generated work

 

Speaker:00:15:54

because the author had done so much additional prompting

 

Speaker:00:15:57

to craft the work to be just what he wanted. And,

 

Speaker:00:16:01

the work is called a single slice of American cheese or it's a just a

 

Speaker:00:16:05

visual artwork. But if you wanna go look it up, it it's actually kind of

 

Speaker:00:16:08

a fun thing to look at. But that's a very specific use case with

 

Speaker:00:16:12

a a very, deliberate effort to

 

Speaker:00:16:16

prove what could be done. So Interesting. So I

 

Speaker:00:16:20

I wanna go back real quickly to right. We've talked a lot about, you know,

 

Speaker:00:16:23

as far as how you can protect

 

Speaker:00:16:27

yourself from stealing other people's content, taking music, taking

 

Speaker:00:16:31

show titles. But, right, as an indie podcaster, we don't really

 

Speaker:00:16:35

contemplate too much about protecting our own work, our own

 

Speaker:00:16:39

craft. Are there situations or have you seen a

 

Speaker:00:16:43

situation where some big network or big show starts to

 

Speaker:00:16:46

dabble with an independent podcaster's material and

 

Speaker:00:16:51

that podcaster had some sort of recourse that they should take? Well,

 

Speaker:00:16:54

there have been cases where, podcast actually,

 

Speaker:00:16:58

networks have, have ended up carrying a

 

Speaker:00:17:02

podcast that wasn't supposed to be on that network. I'm not gonna name

 

Speaker:00:17:05

names, but, and, you know, it was pretty easy to get it removed

 

Speaker:00:17:09

from the network. They don't want the trouble, and and they'll just take it down.

 

Speaker:00:17:13

There's this mechanism, the DMCA, Digital Millennium Copyright Act, that

 

Speaker:00:17:16

allows for takedowns. When there's infringing work,

 

Speaker:00:17:20

the owner of that work can just notify the hosting company or

 

Speaker:00:17:24

the network or whatever and say, hey. That's infringing my stuff. Take it

 

Speaker:00:17:28

down. You have to follow a particular procedure and form,

 

Speaker:00:17:32

for sending that notice. But then the company, in order to avoid being

 

Speaker:00:17:36

sued itself, will take it down right away and just

 

Speaker:00:17:40

basically let's say, okay. If you think that's still valid and should be up

 

Speaker:00:17:44

there, you guys go fight it out and let us know. And and that's you

 

Speaker:00:17:47

know, we've all seen a YouTube video that we were linked to that wasn't there

 

Speaker:00:17:51

anymore or something like that. That that's the DMCA takedown. So it's actually

 

Speaker:00:17:54

a relatively, what's the word, painless and

 

Speaker:00:17:58

easy process to to get material taken

 

Speaker:00:18:02

down in this day and age of the web. Now if there's been a lot

 

Speaker:00:18:05

of profit generated from it, there may be a reason to actually go and sue

 

Speaker:00:18:08

the the infringers and things like that, but it does happen.

 

Speaker:00:18:12

Fortunately, well, or maybe it's unfortunate,

 

Speaker:00:18:16

podcasts aren't necessarily a a ripe target for this kind of stuff.

 

Speaker:00:18:21

I mean, I guess there are some shows that have such a big audience that

 

Speaker:00:18:24

they're you know, people wanna use their stuff. I've

 

Speaker:00:18:28

I couldn't imagine clips of some of those top shows out there being

 

Speaker:00:18:32

repurposed and and rebroadcast and things like that. And, in fact,

 

Speaker:00:18:36

I was just telling you before we started, there's a recent case in

 

Speaker:00:18:39

the copyright claims board involving

 

Speaker:00:18:43

a podcast that was doing a critique of this particular

 

Speaker:00:18:47

online influencer and her lawyer who were going after people.

 

Speaker:00:18:51

And, of course, when they used a clip from the from that influencer's

 

Speaker:00:18:56

content and that lawyer's content, they then sued the

 

Speaker:00:18:59

podcast, and the podcasters just just won last week, a

 

Speaker:00:19:03

finding that what they were doing was fair use. And that's that

 

Speaker:00:19:07

defense to copyright infringement that's meant for

 

Speaker:00:19:10

education and criticism and commentary kinds of material.

 

Speaker:00:19:14

So there is a way. And I guess that does lead

 

Speaker:00:19:18

to the other big issue, which is, right, if you are

 

Speaker:00:19:22

using somebody else's stuff, right, you're using a song, you're using

 

Speaker:00:19:26

clips, what whatever it is. Typically, what is it gonna look like as the

 

Speaker:00:19:30

podcast? Or what are you going to experience? Is it going to be

 

Speaker:00:19:33

you know, are you gonna get subpoena to a lawsuit? Are you just gonna get

 

Speaker:00:19:37

a takedown? Are you just getting an email? Like, what is the what what is

 

Speaker:00:19:40

the evolution of of trouble gonna look like for

 

Speaker:00:19:44

you? Well, there are some law firms out there that have made a

 

Speaker:00:19:48

business of going after folks that infringe on these sort of

 

Speaker:00:19:51

smallish scales. And, you know, they

 

Speaker:00:19:54

they come at you with a threat of a what I what I would call

 

Speaker:00:19:58

a nuisance lawsuit. You know, pay us a few hundred or a few thousand dollars,

 

Speaker:00:20:01

and we won't sue you. And, you know, it's easier to pay

 

Speaker:00:20:05

it than it is to fight it. So you might see that. Most often, it's

 

Speaker:00:20:08

gonna be that DMCA takedown. And, you know, it's at best, it's

 

Speaker:00:20:12

an embarrassment if your show goes live on Monday

 

Speaker:00:20:16

and it's down on Tuesday or or Wednesday or even months later. That

 

Speaker:00:20:20

episode missing from your feed kind of leaves a gaping

 

Speaker:00:20:23

hole, at least in some shows. So that

 

Speaker:00:20:27

embarrassment and if you then push to get it put back up because

 

Speaker:00:20:31

you think it was legal, then you get into the

 

Speaker:00:20:35

these claims in the copyright claims board or or going to,

 

Speaker:00:20:39

full grown federal court over these kinds of things. It does happen, but,

 

Speaker:00:20:44

fortunately, not that often. Gotcha.

 

Speaker:00:20:48

And I guess the the big thing here is that even if

 

Speaker:00:20:51

you are I don't wanna say even if you're in the

 

Speaker:00:20:55

right, but, typically, no matter

 

Speaker:00:20:58

what, this experience is going to be painful for you even if you're

 

Speaker:00:21:02

right. Is that true? Like, if you're facing takedown

 

Speaker:00:21:06

notices, if somebody is claiming you're using their property incorrectly

 

Speaker:00:21:09

or, you know, a lot of people like to say, but it's fair use. Right?

 

Speaker:00:21:13

Like, fair use maybe, but it's still gonna

 

Speaker:00:21:17

be painful. Yeah. Yeah. So,

 

Speaker:00:21:20

painful yeah. I mean, tell me choose your pain, I guess.

 

Speaker:00:21:24

Having your episode taken down and just living with it is is a kind of

 

Speaker:00:21:27

pain, and it's sort of an embarrassment I was was talking about. Fighting it is

 

Speaker:00:21:31

a painful process. It takes a long time. It takes a lot of back and

 

Speaker:00:21:35

forth and hiring people like me to help you and represent you in these

 

Speaker:00:21:38

cases. And, yeah, I mean, I've I've I've never met

 

Speaker:00:21:42

anybody who's been a party in a lawsuit who is enjoying the process.

 

Speaker:00:21:47

Fair use is an interesting thing because it is a defense in copyright

 

Speaker:00:21:51

infringement. So if you're gonna if you have to say, but it's fair

 

Speaker:00:21:54

use, chances are someone's already threatening or suing

 

Speaker:00:21:58

you. And, you know, that's just

 

Speaker:00:22:01

by then, you you're experiencing some of that pain already, and I would caution

 

Speaker:00:22:05

against it. If if what you're doing is real critic like movie

 

Speaker:00:22:09

criticism or music criticism or teaching real education kinds

 

Speaker:00:22:13

of stuff, then maybe there's an argument that fair use is is the way to

 

Speaker:00:22:16

go with what you're doing. I would say, you know,

 

Speaker:00:22:20

invest in a small a short consultation with someone like me to,

 

Speaker:00:22:24

make sure you're on the right path. Alright. That

 

Speaker:00:22:28

that is very fair. And, yeah, again, it's you know, if if the

 

Speaker:00:22:32

question you have to ask yourself is if you wanna use that piece of music

 

Speaker:00:22:36

in your episode and you believe that you have this

 

Speaker:00:22:39

fair use defense, will the cost

 

Speaker:00:22:43

of hiring lawyers, going to courts, dealing with all this

 

Speaker:00:22:47

stuff at the end of the day, was it did it

 

Speaker:00:22:50

improve your show by that much? Right? Like, was this battle worth it? Was your

 

Speaker:00:22:54

was your content so much better because you include that little music clip,

 

Speaker:00:22:58

or is it really just a giant headache for you? You know, I would say

 

Speaker:00:23:01

nine out of 10 times, it's not worth it. It's a big headache and or

 

Speaker:00:23:04

or big expense one way or the other, and it's better just to, you know,

 

Speaker:00:23:09

avoid you know, take the path of least resistance and and avoid

 

Speaker:00:23:13

using the thing. If you are doing something where you have to use a clip

 

Speaker:00:23:16

of the music to talk about the fact that the artist did this and

 

Speaker:00:23:20

was was exposed to that. You know? What a great either what a great or

 

Speaker:00:23:23

what a terrible person the artist is, those kinds of things. You know?

 

Speaker:00:23:27

The newsier, the better, I guess. And there are some situations where I'd

 

Speaker:00:23:31

say go ahead. And some shows where

 

Speaker:00:23:35

it's their their method of doing things. So I

 

Speaker:00:23:38

think they've done their legwork and figured out how

 

Speaker:00:23:43

to carve out those niches and do it right. As a reminder, we

 

Speaker:00:23:46

are chatting with Gordon Firemark. He is the podcast

 

Speaker:00:23:50

lawyer. You can get more about him at gordanfiremark.com.

 

Speaker:00:23:54

You can also check out his easy legal for podcasters

 

Speaker:00:23:57

program and his podcast law forms. Great resources

 

Speaker:00:24:01

for those of you who are looking for ways to protect your

 

Speaker:00:24:05

shows, protect your properties, without having to go, you

 

Speaker:00:24:08

know, too crazy on spending money for

 

Speaker:00:24:12

legal defenses and legal assistance. Gordon has been doing this for

 

Speaker:00:24:16

many, many years. I've known many, many, many podcasters who have

 

Speaker:00:24:19

taken advantage of his resources, present company included, and those who have

 

Speaker:00:24:23

worked with him, and you're getting a great product and a great service. So

 

Speaker:00:24:27

cannot encourage you to check him out enough. Gordon, before we let you

 

Speaker:00:24:30

go, we have questions we like to ask every podcast. So the first one is,

 

Speaker:00:24:34

is there a place in podcasting in general where you'd like to see improvement

 

Speaker:00:24:38

from distribution, production, creation,

 

Speaker:00:24:42

even from consumption? You know, something about podcasts, you were just like, god, I wish

 

Speaker:00:24:45

we did this better. Well, I think discoverability is the big gap

 

Speaker:00:24:49

in podcasting. It's just, you know, if I listen to a show

 

Speaker:00:24:53

that is about a particular topic or that has a particular I

 

Speaker:00:24:57

probably would like to hear other shows about it. And, you know, as an

 

Speaker:00:25:00

example of folks that are doing it really well, YouTube

 

Speaker:00:25:04

and their algorithm is brilliant at this. And, yeah, you you can we can get

 

Speaker:00:25:08

into the debate of whether what YouTube is calling podcasting is podcasting,

 

Speaker:00:25:12

but they're doing a good job of feeding you more stuff that they think you're

 

Speaker:00:25:16

gonna like. And the podcast community, they're just the mechanism

 

Speaker:00:25:19

isn't there. I think that's something that could be developed.

 

Speaker:00:25:23

I don't know. Maybe it's more like a good reads where you you self

 

Speaker:00:25:27

curate by explaining what you like and what you don't like about that. I don't

 

Speaker:00:25:30

know. There's there's there's options. That's one. And the other area would

 

Speaker:00:25:33

be monetization with

 

Speaker:00:25:37

micropayments or crypto or something, and I know there are some folks working on

 

Speaker:00:25:41

it. I think that needs to be built out bigger and

 

Speaker:00:25:45

better and, frankly, just easier to do for both consumers

 

Speaker:00:25:48

and creators. Couldn't agree with you more there. What

 

Speaker:00:25:52

about is there any tech on your wish list, whether something that's out there that

 

Speaker:00:25:55

you just haven't bought yourself or something that you're like, god. Somebody needs to make

 

Speaker:00:25:59

this piece of hardware or software that would make my podcasting life a lot

 

Speaker:00:26:03

easier. I, you know, I haven't identified

 

Speaker:00:26:07

a major major I mean, I've got I've

 

Speaker:00:26:10

spent a lot of money on the studio and and equipment, and I'm using a

 

Speaker:00:26:14

good mic I I wish I had a, this the

 

Speaker:00:26:18

what is it? The Shure SM seven, but I'm pretty happy with my

 

Speaker:00:26:22

Heil PR 40 here.

 

Speaker:00:26:25

Beyond that, no. I mean, I I I'm sure there are things that would make

 

Speaker:00:26:29

it easier for those less technically inclined

 

Speaker:00:26:33

to create a podcast quickly and easily and maybe even publish it.

 

Speaker:00:26:37

There are yeah. I mean, I think some kind of a

 

Speaker:00:26:41

maybe a back end software that would take a live stream

 

Speaker:00:26:44

and automatically convert it and turn it into a a

 

Speaker:00:26:48

podcast episode or something like that. But I think most of the tools are

 

Speaker:00:26:51

getting pretty good. The the AI editing assists are are getting

 

Speaker:00:26:56

I know for podcast editors, they don't like to hear that part. But, they're

 

Speaker:00:26:59

getting pretty good at identifying the stuff that needs to

 

Speaker:00:27:03

go. So Well, and as someone who's been in the

 

Speaker:00:27:06

space since, you know, February, it's it's certainly gotten a lot

 

Speaker:00:27:10

better since we first started. Right. And,

 

Speaker:00:27:14

lastly, are there any podcasts on your playlist that are must listen

 

Speaker:00:27:17

tos, whether new episode comes out, you're gonna stop and check it out, or you're

 

Speaker:00:27:21

just you're not gonna let that episode go by without checking it out?

 

Speaker:00:27:25

You know, I I listen to a lot of business podcasts and and and marketing

 

Speaker:00:27:29

oriented stuff. I'm not a big entertainment content

 

Speaker:00:27:32

consumer. So most of what I listen to is, yeah,

 

Speaker:00:27:36

about how to how to do better in business, how to how to get more

 

Speaker:00:27:39

clients, get more traction with things and so on. So my one of my

 

Speaker:00:27:42

favorites is a a guy named Colin Boyd who is a coach and

 

Speaker:00:27:46

teacher of of public speaking and speaking to

 

Speaker:00:27:50

sell, basically. And his show is called

 

Speaker:00:27:55

The Expert Edge with Colin Boyd. He's an Australian gentleman, a

 

Speaker:00:27:59

client, and a friend as well. And, his show is

 

Speaker:00:28:03

is must have weekly listening. I also like Amy

 

Speaker:00:28:07

Porterfield's online marketing made easy show. Although, I just heard

 

Speaker:00:28:11

she's changing it up and calling it the Amy Porterfield show starting in March.

 

Speaker:00:28:14

So Well, wonder if she got it with a trademark. I doubt

 

Speaker:00:28:18

it. I think she's just pivoting the

 

Speaker:00:28:22

the the focus of things a bit. You are probably correct. Once again, we have

 

Speaker:00:28:25

been chatting with the incredible Gordon Firemark, the podcast

 

Speaker:00:28:29

lawyer. You can learn more about him and all of his services at

 

Speaker:00:28:31

gordonfiremark.com, including the easy legal for

 

Speaker:00:28:35

podcasters program, his podcast law forms, and, yes, he's a

 

Speaker:00:28:38

podcaster. Check out the Legit Podcast Pro podcast for

 

Speaker:00:28:42

some quick two minute, three minute tips, every week from this

 

Speaker:00:28:46

wonderful gentleman, Gordon. It's great to see you. Great to chat with you. Thanks for

 

Speaker:00:28:50

being here. Thank you. It's been great being here. Appreciate it.