Session 2: Podcasting–Legal Issues

“Avoiding Unmitigated Disaster and Achieving Unlitigated Success”

Moderator: Denise Howell, of Bag & Baggage

Speakers: Jeff Henninger, Reed Smith LLP; Colette Vogele, Stanford Center for Internet & Society & co-author, Podcasting Legal Guide

Starting a podcast? Form a limited liability corporation. Register your podcast name as a trademark with the USPTO. Think about insurance against liability for libel, slander, defamation. Get written agreements on everything up front. Use lawyers judiciously. You don’t need a lawyer for any of the things mentioned above. When do you need a lawyer? When the potential loss to you exceeds the cost of hiring a lawyer. Also, when the other side has a lawyer.

Questions:

For universities, etc.: how do you make podcasts accessible for “508 compliance” under the Americans with Disabilities Act? (None of the panelists had an answer.)

Trademarking your name: will consumers be confused by the use? If your podcast is “ESLpod” (English as a Second Language), and someone else uses the “eslpod” as an acronym for something else, you may not be able to stop them.

Music in podcasts: What about a 30-second clip as background while you talk over it? The artist still owns the work. Despite the common myth, there is no “30-second rule” on fair use.

Is it prudent to get written releases for all interviewees? Yes, that’s the most prudent approach. The podcasting community is pretty young and non-litigious at this point; it’s a good idea to begin documenting your relationships with your partners, guests, etc.

Right of publicity: an individual has the right to control use of their name, likeness, and voice. There is some relief from liability if you are doing a journalistic-oriented podcast.

(Heads up: Colette Vogele will soon be doing a weekly podcast to answer these sorts of questions.)

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About James G. Milles

Professor of Law, SUNY Buffalo Law School

Posted on September 29, 2006, in Podcast Expo 2006. Bookmark the permalink. 1 Comment.

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