1 00:00:00,000 --> 00:00:18,920 Hey everyone, Ashley here with RSS.com. In today's episode, we're chatting with the podcast 2 00:00:18,920 --> 00:00:24,040 lawyer Gordon Firemark. We'll be chatting all about using music legally in your podcast, 3 00:00:24,040 --> 00:00:28,560 plagiarism, and how to go about properly setting up a podcast if you plan on having a co-host 4 00:00:28,560 --> 00:00:39,200 for your show. There's a lot to unpack, so let's dive in. Enjoy the show. 5 00:00:39,200 --> 00:00:43,920 I'm really excited to have you on the show. I can't even. It's fun. It's gonna be good. 6 00:00:43,920 --> 00:00:47,480 Okay. Well, Gordon, welcome to the show. Can you do us a favor and tell us what it is you 7 00:00:47,480 --> 00:00:51,280 do? Well, hi Ashley. Thanks for having me. I am Gordon Firemark and they call me the 8 00:00:51,280 --> 00:00:57,480 podcast lawyer because I am a lawyer who podcasts and a podcaster who is a lawyer, but I am 9 00:00:57,480 --> 00:01:03,400 also a lawyer who helps and works with podcasters and podcast industry, businesses and creatives 10 00:01:03,400 --> 00:01:10,920 and all those kind of folks. I just love getting my hands dirty with the entertainment law 11 00:01:10,920 --> 00:01:13,640 stuff that finds its way into the podcasting world. 12 00:01:13,640 --> 00:01:17,600 Well, when it comes to podcasting, when did that come into your space? 13 00:01:17,600 --> 00:01:24,960 Oh my gosh. I'm an OG podcaster if I do say so myself. I think my first podcast guest 14 00:01:24,960 --> 00:01:32,920 appearance was around 2005 or 2006 and I was invited to answer questions for a podcast 15 00:01:32,920 --> 00:01:37,480 for videographers at the time. And then that guy who hosted that show, he and I ended up 16 00:01:37,480 --> 00:01:41,400 creating a show where every couple of weeks we would answer questions. That came up a 17 00:01:41,400 --> 00:01:49,200 show that I think we started in 2006 called, maybe it was 2007, The Law and Video was 18 00:01:49,200 --> 00:01:55,240 the name of the show. And that show ended because his boss got wind of it and said he 19 00:01:55,240 --> 00:02:01,280 was moonlighting and he had to stop. And I was hooked. And being a sound guy and a tech 20 00:02:01,280 --> 00:02:05,320 geek and into computers and all that stuff, I said, okay, I got to keep doing this. So 21 00:02:05,320 --> 00:02:10,720 I figured it out and I launched my own show in 2009. And tomorrow morning we were going 22 00:02:10,720 --> 00:02:16,760 to record our 156th episode. That's the 14 year anniversary episode for the show. 23 00:02:16,760 --> 00:02:22,480 Well that's exciting. So I got you to celebrate. That's really cool. So I'll have to cue the 24 00:02:22,480 --> 00:02:28,820 bells and whistles. So you started before podcasting though. You were doing what kind 25 00:02:28,820 --> 00:02:35,720 of law? I was an entertainment lawyer. I came out of the theater community and studied radio, 26 00:02:35,720 --> 00:02:39,560 TV, and film in college and then became a lawyer. And so I worked with entertainment 27 00:02:39,560 --> 00:02:44,040 folks, independent film, independent playwrights and theater producers and those things. I 28 00:02:44,040 --> 00:02:50,960 always been on the side of the little guy, the independent community. And yeah, so I 29 00:02:50,960 --> 00:02:57,520 got, I've been practicing since the early nineties, 30 years in law practice now. And 30 00:02:57,520 --> 00:03:03,160 I adopted new media as my marketing strategy very early on. I started a blog before blog 31 00:03:03,160 --> 00:03:09,200 was the term, before WordPress was the thing. I actually, I found a book in a bookstore 32 00:03:09,200 --> 00:03:15,360 about how to create a database backed website. And I built my own from, you know, coded it 33 00:03:15,360 --> 00:03:20,840 myself and all that talk about being a geek. And so, you know, I was doing any newsletter 34 00:03:20,840 --> 00:03:25,440 and then turning blog posts into, you know, all that kind of stuff. And so when podcasting 35 00:03:25,440 --> 00:03:31,160 became a thing, I got very excited very early. I was listening to guys like Leo Laporte and 36 00:03:31,160 --> 00:03:37,680 Adam Curry and then those guys early in the days and, and call me an early adopter. I'm 37 00:03:37,680 --> 00:03:41,280 a geek. I jumped right in. I think that's awesome. So, I mean, since you were already 38 00:03:41,280 --> 00:03:44,920 doing stuff in the entertainment industry, the transition into podcasting sounds like 39 00:03:44,920 --> 00:03:54,680 it was pretty simple. Yeah. As far as my practice in the law of podcasting, I try to think, 40 00:03:54,680 --> 00:03:58,440 well certainly when I started my own show, I went looking to make, you know, to find 41 00:03:58,440 --> 00:04:02,600 out where are the differences between the stuff that I think of if I'm representing 42 00:04:02,600 --> 00:04:06,920 a filmmaker and you know, what do I do? And that's how it led to me writing my, my first 43 00:04:06,920 --> 00:04:12,840 book called the podcast blog and new media producers legal survival guide and put that 44 00:04:12,840 --> 00:04:19,680 out and originally launched it at a new media expo back in the, in the early teens, I think. 45 00:04:19,680 --> 00:04:26,880 And yeah, so it is different enough in a few ways from these other media that I work with 46 00:04:26,880 --> 00:04:31,240 that I had to do a little learning and educating myself. And now I'm on a mission to educate 47 00:04:31,240 --> 00:04:36,280 everybody else. Well, and in a lot of ways, I mean, in being an early adopter, it sounds 48 00:04:36,280 --> 00:04:40,760 like you kind of were there when they were first beginning to figure out what even podcast 49 00:04:40,760 --> 00:04:46,680 law looked like. I think I'm the guy who helped them, who figured out what podcast law looked 50 00:04:46,680 --> 00:04:51,560 like in the sense of essentially identifying the areas where it's not lockstep with the 51 00:04:51,560 --> 00:04:55,280 film business and the television and radio. You know, there's a lot of folks who come 52 00:04:55,280 --> 00:05:00,100 to podcasting from the radio world and they think that you can do everything the same 53 00:05:00,100 --> 00:05:04,680 way you did when you worked at a radio station. And I'd say that's one of them, the biggest 54 00:05:04,680 --> 00:05:10,880 friction points for people is no, this isn't terrestrial radio. We don't have the same 55 00:05:10,880 --> 00:05:16,520 ease of use of the licensing for music and the rules about having a guest on the show 56 00:05:16,520 --> 00:05:22,000 or taking call ins and things like that. And we have to be a little more disciplined in 57 00:05:22,000 --> 00:05:26,320 the podcasting world because the industry isn't old enough to have established those 58 00:05:26,320 --> 00:05:33,040 norms and set up those, what we call compulsory licenses and things like that, that are existing 59 00:05:33,040 --> 00:05:37,360 in the radio world. Well, speaking of what kind of things do you see podcasters deal 60 00:05:37,360 --> 00:05:43,160 with in terms of legal issues? Well, the big one is copyright law. Whenever somebody starts 61 00:05:43,160 --> 00:05:47,600 a show, they always decide they want to use a famous piece of music as their intro or 62 00:05:47,600 --> 00:05:52,000 something like, or they just want to do a music show. And it's just really, really hard. 63 00:05:52,000 --> 00:06:00,560 The music industry hasn't embraced podcasting as a medium that brings them any benefit. 64 00:06:00,560 --> 00:06:05,480 So if you're willing to pay a lot of money, you can get a license to use a piece of music, 65 00:06:05,480 --> 00:06:12,000 but they don't make it easy and it isn't really beneficial to them. So they're not eager to 66 00:06:12,000 --> 00:06:19,280 come to the table. Other issues that come up are in the true crime arena, we have a 67 00:06:19,280 --> 00:06:24,160 lot of plagiarism claims that come up. It's not always copyright infringement, but certainly 68 00:06:24,160 --> 00:06:30,920 attribution issues and people passing off other people's work as their own. When they 69 00:06:30,920 --> 00:06:34,960 go from the journalistic reports in the newspapers and they make a true crime podcast, they're 70 00:06:34,960 --> 00:06:44,360 not doing their own work to verify and gather the data. And then the other, actually the 71 00:06:44,360 --> 00:06:48,960 biggest one that I've dealt with in terms of the most dollars spent on legal and fights 72 00:06:48,960 --> 00:06:54,400 and things usually has to do with the co-ownership of podcasts. Two people sit down together 73 00:06:54,400 --> 00:06:59,760 to have a little fun and make a show. And then one of them decides to leave or wants 74 00:06:59,760 --> 00:07:03,560 the other one to leave and then forces them out. And then you have these, I call them 75 00:07:03,560 --> 00:07:10,480 pod divorces. And I advocate strongly that you should get things in writing upfront. 76 00:07:10,480 --> 00:07:16,680 I call it a podcast prenup. And it really is designed to smooth the way women, if that 77 00:07:16,680 --> 00:07:19,160 podcast divorce ever has to come to pass. 78 00:07:19,160 --> 00:07:23,040 Wow. I got to say, whenever we sat down, I was thinking we were just going to talk about 79 00:07:23,040 --> 00:07:26,800 music and plagiarism. I never in a million years thought you were going to bring up podcast 80 00:07:26,800 --> 00:07:31,400 divorces because that's just not something I would have thought of. But at the same time, 81 00:07:31,400 --> 00:07:35,160 it completely makes sense because so many people are like, oh, let's start a podcast 82 00:07:35,160 --> 00:07:40,040 with our friends. I guess I never thought of the legal aspects of it. So what would 83 00:07:40,040 --> 00:07:43,200 you recommend if someone wanted to start a podcast with their friend? 84 00:07:43,200 --> 00:07:48,040 Well, I think that even if you don't necessarily aim to make money from what you're doing, 85 00:07:48,040 --> 00:07:52,360 I think coming at it, looking at it like you're starting a business with somebody makes a 86 00:07:52,360 --> 00:07:57,080 lot of sense because what you are doing or marriage, I mean, thinking about people going 87 00:07:57,080 --> 00:08:01,260 to marriages a little more casually than they go into business, which is kind of bizarre, 88 00:08:01,260 --> 00:08:08,500 but it's a bigger commitment if you ask me. But you're going to be assembling assets 89 00:08:08,500 --> 00:08:13,920 and bringing stuff of yours to this partnership, this venture together, and you're going to 90 00:08:13,920 --> 00:08:19,080 be creating new things. So it's the house and the kids and the cars and the pets and 91 00:08:19,080 --> 00:08:26,800 all those things. Same is true in podcasting. You're creating these assets that are going 92 00:08:26,800 --> 00:08:31,220 to need to be dealt with someday down the line, either because you're getting that divorce 93 00:08:31,220 --> 00:08:36,680 you're breaking up or because you're going to join a big platform or you're getting bought 94 00:08:36,680 --> 00:08:40,880 by a production company or all kinds of things can happen. You just want to have those ducks 95 00:08:40,880 --> 00:08:49,120 in a row and be ready for the opportunities and the eventualities that come up. 96 00:08:49,120 --> 00:08:52,800 That's brilliant advice. So if you're trying to start a podcast with a friend, it almost 97 00:08:52,800 --> 00:08:56,840 seems like you need to also figure out what the roles and responsibilities are. If you 98 00:08:56,840 --> 00:09:00,520 guys are going to be committing any money into it, you need to write all that stuff 99 00:09:00,520 --> 00:09:01,800 out too. Is that right? 100 00:09:01,800 --> 00:09:05,640 Yeah, that's the stuff that goes in this document that I refer to as a podcast prenup, but it 101 00:09:05,640 --> 00:09:12,200 can take a lot of different forms. Sometimes it's just a simple collaboration equal 50-50. 102 00:09:12,200 --> 00:09:17,880 We're going to share everything, expenses and revenues and assets. Although then you 103 00:09:17,880 --> 00:09:21,680 do want to think about, well, what happens if somebody leaves, dies, gets sick, can't 104 00:09:21,680 --> 00:09:28,760 participate or whatever. So having those what ifs answered is important. But sometimes it's 105 00:09:28,760 --> 00:09:34,760 the LLC operating agreement if you're forming an LLC or a more formal joint venture co-production 106 00:09:34,760 --> 00:09:40,320 agreement. Or sometimes you just bring in on a host, a co-host. In my own show's situation, 107 00:09:40,320 --> 00:09:47,680 my co-host is, that's her job. She's just co-host, which is saying a lot. But it's my 108 00:09:47,680 --> 00:09:51,920 show. She's there because I've invited her to come on and we shared things a certain 109 00:09:51,920 --> 00:09:58,640 way. Again, just having those things in writing in a way that establishes some clarity from 110 00:09:58,640 --> 00:10:00,760 the get-go. 111 00:10:00,760 --> 00:10:04,200 It sounds like if you're going to go into this kind of thing, you don't need to think 112 00:10:04,200 --> 00:10:08,160 of it as a bad thing. It's more of just a protections thing. 113 00:10:08,160 --> 00:10:14,760 Absolutely. Same thing. When you're joining any kind of a team relationship situation, 114 00:10:14,760 --> 00:10:20,240 it's good to know what you're getting into. It's good to think about some of those what 115 00:10:20,240 --> 00:10:26,040 if questions that I was mentioning just so that you aren't one sided later on if something 116 00:10:26,040 --> 00:10:27,040 changes. 117 00:10:27,040 --> 00:10:31,500 Yeah. That makes complete sense. I just can't believe that's not even what was in my brain 118 00:10:31,500 --> 00:10:37,140 whenever we sat down to talk about legalities and podcasting. But here we are. The more 119 00:10:37,140 --> 00:10:38,760 you know. 120 00:10:38,760 --> 00:10:43,320 It's why I do what I do, bringing these issues to people's attention. Everybody's talking 121 00:10:43,320 --> 00:10:47,000 about music, so that's easy. But let's talk about music. 122 00:10:47,000 --> 00:10:51,000 Yes. Let's talk about music. That's one of my favorite things. I've noticed that there's 123 00:10:51,000 --> 00:10:56,160 this big myth, and I spoke with you about this before we got on. There's this big myth 124 00:10:56,160 --> 00:10:59,920 that, oh, I can sample seven seconds. Tell me about that. 125 00:10:59,920 --> 00:11:09,080 It's what you described. It's a myth. It's understandable that people have these ideas 126 00:11:09,080 --> 00:11:15,160 about things. Another one is I'm not making any money from it, so it's okay. The rule 127 00:11:15,160 --> 00:11:20,480 is very basic. It's very simple. If somebody else made it and you didn't buy it from them, 128 00:11:20,480 --> 00:11:27,160 you shouldn't use it. Copyright comes into existence the moment an author, an artist 129 00:11:27,160 --> 00:11:33,240 creates something original. Period. You don't have to register anything, file anything, 130 00:11:33,240 --> 00:11:36,880 pay any money or nothing. You own a copyright from that moment, and that means that the 131 00:11:36,880 --> 00:11:41,600 copyright owner has the exclusive right to make and distribute copies and display and 132 00:11:41,600 --> 00:11:46,600 perform the work and make things based on it or incorporating it and those kinds of 133 00:11:46,600 --> 00:11:50,960 things. So when you make a podcast episode and you use a piece of music that comes from 134 00:11:50,960 --> 00:11:56,040 somewhere else that you didn't create, that person has the exclusive right. That means 135 00:11:56,040 --> 00:12:02,880 they can say no or they can charge you money. So that's the basic rule, copyright. There 136 00:12:02,880 --> 00:12:07,000 is a principle in copyright law because here in the U.S. we have the First Amendment freedom 137 00:12:07,000 --> 00:12:11,920 of speech. This principle called fair use came up as a way of dealing with this fact 138 00:12:11,920 --> 00:12:16,640 that on the one hand, the First Amendment says Congress shall make no law abridging 139 00:12:16,640 --> 00:12:20,960 freedom of speech and of the press, among other things. On the other hand, you have 140 00:12:20,960 --> 00:12:26,400 this law that says you can't make copies of stuff you find out in the wild. So we have 141 00:12:26,400 --> 00:12:30,600 an inherent conflict. So in the course of the early part of the 20th century, the judges 142 00:12:30,600 --> 00:12:37,760 had to deal with this on various cases and they developed this fair use doctrine which 143 00:12:37,760 --> 00:12:43,000 established a multi-factor balancing test that you have to do every single time to see 144 00:12:43,000 --> 00:12:49,880 is it fair or isn't it. One of those elements of that test, one of the factors is the amount 145 00:12:49,880 --> 00:12:55,260 and substantiality of the portion taken relative to the whole. That's where people get this 146 00:12:55,260 --> 00:13:01,800 idea that a few seconds is okay. And sometimes it is and sometimes it isn't because there's 147 00:13:01,800 --> 00:13:06,780 three other factors you have to consider. The nature of the original work, the purpose 148 00:13:06,780 --> 00:13:14,280 and character of the infringing work and the harm to the market or impact on the market 149 00:13:14,280 --> 00:13:18,840 or value of the original. And that's the big one because the music industry, they're in 150 00:13:18,840 --> 00:13:23,680 the business of selling licenses to use music. So it's easy for them to point to yes, there's 151 00:13:23,680 --> 00:13:29,080 a market impact and if everybody starts doing this, this market goes away. This industry 152 00:13:29,080 --> 00:13:35,320 goes away. So it really comes down to this analysis having to be done on a case by case 153 00:13:35,320 --> 00:13:40,480 basis. There's no rule of thumb. You say seven seconds, some people refer the musical term, 154 00:13:40,480 --> 00:13:47,000 they'll say four bars. But I've seen situations where even just three seconds of something 155 00:13:47,000 --> 00:13:53,400 was too much because the record label or the music publishing company wasn't happy about 156 00:13:53,400 --> 00:13:58,520 it. And honestly, even if it is a fair use, you're going to spend $100,000 fighting the 157 00:13:58,520 --> 00:14:04,640 lawsuit to prove it's fair use. Better to pay for the license or choose not to use the 158 00:14:04,640 --> 00:14:05,640 music. 159 00:14:05,640 --> 00:14:09,400 Absolutely. Because I don't know about you, but most of these podcasters that I know, 160 00:14:09,400 --> 00:14:11,360 they don't have $100,000 to fight that. 161 00:14:11,360 --> 00:14:14,120 I don't have a hundred thousand bucks to throw at a problem like that. 162 00:14:14,120 --> 00:14:18,040 Yeah, absolutely. So what would you recommend for someone who wants to use music somewhere 163 00:14:18,040 --> 00:14:19,920 in their podcast? What should they do? 164 00:14:19,920 --> 00:14:23,560 Well, there's a few options. One is what we call royalty free music. And that does not 165 00:14:23,560 --> 00:14:27,440 mean it's free of charge. It just means that you pay once and you don't end up paying an 166 00:14:27,440 --> 00:14:33,080 ongoing fee, which is what we usually think of as a royalty. There are libraries of music 167 00:14:33,080 --> 00:14:36,600 out there that let you do that. You have to be careful because some of them talk about 168 00:14:36,600 --> 00:14:41,400 single use licensing and you pay 30 bucks or something and they say, go ahead, use the 169 00:14:41,400 --> 00:14:50,120 song. The problem that I've seen arise is that the podcaster takes that $35 single use 170 00:14:50,120 --> 00:14:55,880 license and makes it the intro, opening the intro of their show. And so under the license 171 00:14:55,880 --> 00:15:00,120 terms, they owe 35 bucks for every episode they put out. And they didn't think that and 172 00:15:00,120 --> 00:15:05,280 they just write. So again, read the license agreement carefully. If you don't know, ask. 173 00:15:05,280 --> 00:15:11,320 If you don't understand, ask. Some licenses are much more expansive and you can do that 174 00:15:11,320 --> 00:15:16,560 or you can buy the enhanced licenses or something. So do your reading. Other great way to do 175 00:15:16,560 --> 00:15:20,040 it is using the subscription services. There's a few of them out there. I'm not going to 176 00:15:20,040 --> 00:15:25,880 name names because I don't want to endorse any particular brands. I'm not an affiliate. 177 00:15:25,880 --> 00:15:29,880 But you can subscribe. And as long as you remain a subscriber, you have access to their 178 00:15:29,880 --> 00:15:33,920 entire catalog of music. That's a great way to go. If you especially if you want to use 179 00:15:33,920 --> 00:15:38,560 different music every week for different purposes or create bed music. And it's great. You can 180 00:15:38,560 --> 00:15:42,920 use it in YouTube and other media as well. You have to let them know where you're going 181 00:15:42,920 --> 00:15:47,840 to put it. That's a good one. Or you could have a composer or someone create a piece 182 00:15:47,840 --> 00:15:52,560 of music for you or do it yourself. Write a piece of music. But if you want that opening 183 00:15:52,560 --> 00:15:58,760 lick to ACDC, Highway to Hell, get out your check. It's not going to be easy or cheap. 184 00:15:58,760 --> 00:16:04,360 I can imagine. For me personally, for both this podcast and for my own show, Bloggy 185 00:16:04,360 --> 00:16:10,240 Friends show, I actually commissioned someone to write the music because I just after listening 186 00:16:10,240 --> 00:16:14,480 to you talk about it at podcast movement, I was like, I'm not taking any chances. I'm 187 00:16:14,480 --> 00:16:20,680 going to hire someone to make my music. That's a great strategy for just solid business reasons 188 00:16:20,680 --> 00:16:25,360 also because now you're building a brand that is distinctive and stands apart. So it's not 189 00:16:25,360 --> 00:16:29,480 just I mean, we've all had that experience of watching a video or listening to something 190 00:16:29,480 --> 00:16:34,360 and saying, I've heard that piece of music before. In fact, my own show, I use the outro 191 00:16:34,360 --> 00:16:39,960 of my show is this clarinet music song that actually was licensed through, gosh, I think 192 00:16:39,960 --> 00:16:46,200 it was Garage Band some time ago. But that same piece of music was used as the ending 193 00:16:46,200 --> 00:16:53,760 credits music for This Old House on PBS. And I just never really thought about it until 194 00:16:53,760 --> 00:16:58,360 I, oh yeah, wait, that's not my music. It's their music. That kind of thing. So better 195 00:16:58,360 --> 00:17:03,840 to have distinctive stuff that's yours so that people hear that music. Oh, that's Ashley's 196 00:17:03,840 --> 00:17:05,000 show. 197 00:17:05,000 --> 00:17:08,600 I love that. I love that so much. And you know, what's really cool is, you know, if 198 00:17:08,600 --> 00:17:12,360 you're, if you're trying to come up with new music and you don't want to pay licensing 199 00:17:12,360 --> 00:17:17,120 fees or stuff like that, you could just talk to local musicians who are trying to get their 200 00:17:17,120 --> 00:17:21,080 name out there and maybe like work out some sort of deal with them. But again, like Gordon 201 00:17:21,080 --> 00:17:23,120 said, get it in writing. 202 00:17:23,120 --> 00:17:27,540 The truth is, and there's a lot of legal issues that have still been unresolved around this, 203 00:17:27,540 --> 00:17:33,560 but now we're living in the era of AI. And it is not inconceivable that there will be 204 00:17:33,560 --> 00:17:37,180 tools out there that can actually I think they're already out there. If you give it 205 00:17:37,180 --> 00:17:42,440 a set of parameters, it'll give you 30 seconds of music that is, you know, this, this number 206 00:17:42,440 --> 00:17:48,040 of beats per minute, this kind of musical tone, this kind of vibe. And that may be another 207 00:17:48,040 --> 00:17:50,320 option for podcasters to start looking at. 208 00:17:50,320 --> 00:17:54,920 Yeah, I think we're gonna see some interesting things happen in that. Because I've seen some 209 00:17:54,920 --> 00:17:59,640 articles recently about like music producers and record labels that are scrambling to figure 210 00:17:59,640 --> 00:18:04,040 out how they can prevent their stuff from being sampled with AI programs. 211 00:18:04,040 --> 00:18:09,560 And we've even got artists who are now threatening and suing companies because they're making 212 00:18:09,560 --> 00:18:13,480 music that sounds just like the artist. There was a case this last week with Drake in the 213 00:18:13,480 --> 00:18:18,000 weekend, a song came out, it was on Spotify and those guys never performed that song, 214 00:18:18,000 --> 00:18:23,240 never wrote it, never recorded it. But you listen to it, it sure sounds like them. 215 00:18:23,240 --> 00:18:27,140 That's crazy. I can't even. And I mean, it kind of makes sense though, because like we've 216 00:18:27,140 --> 00:18:32,720 already got, you know, with your, with Descript, how it can auto-dub your voice in, and we've 217 00:18:32,720 --> 00:18:37,200 got all those deep fake videos. So we're in wild times. 218 00:18:37,200 --> 00:18:42,520 I'll tell you that my performance, my non-performance of the Gettysburg Address is brilliant. It 219 00:18:42,520 --> 00:18:50,440 sounds just like me, but I used one of those tools to create. So it's pretty amazing. 220 00:18:50,440 --> 00:18:53,960 Strange times, just strange times. Like I was watching TikTok the other day and I was 221 00:18:53,960 --> 00:18:58,160 watching all these Tom Cruise videos and none of them are Tom Cruise. And I'm like, because 222 00:18:58,160 --> 00:19:02,240 he even came out on the record. He's like, I do not have a TikTok account, period. 223 00:19:02,240 --> 00:19:04,240 Oh, wow. 224 00:19:04,240 --> 00:19:08,400 So it's like, it's insane to, because the guy is very good at like even like making 225 00:19:08,400 --> 00:19:13,920 the mannerisms and you really think it's Tom Cruise, then you realize it's not. So it's 226 00:19:13,920 --> 00:19:19,720 very scary times indeed. But also exciting because there's so much that can unfold from 227 00:19:19,720 --> 00:19:23,920 the technology that's becoming available. But so the other thing that you mentioned 228 00:19:23,920 --> 00:19:28,160 that I thought was interesting was plagiarism with true crime. Can you tell me a little 229 00:19:28,160 --> 00:19:29,360 bit about that? 230 00:19:29,360 --> 00:19:37,000 Well, plagiarism is the copying of the ideas or the facts. You know, facts and ideas are 231 00:19:37,000 --> 00:19:43,960 not covered or protected under copyright law. So I can tell the story of a historical event 232 00:19:43,960 --> 00:19:50,780 my way without a problem. But plagiarism is the sort of intellectual dishonesty of using 233 00:19:50,780 --> 00:19:56,960 someone else's work to tell your story without acknowledging that it's their work. So when 234 00:19:56,960 --> 00:20:03,480 that true crime podcaster gets all of its information from the newspaper clippings of 235 00:20:03,480 --> 00:20:08,280 the person who was covering the story for a year while the police hunted for the killer 236 00:20:08,280 --> 00:20:13,080 or whatever it was, and doesn't acknowledge that they got the data, the information from 237 00:20:13,080 --> 00:20:20,480 that journalist, that's plagiarism. And sometimes journalists plant little things in there that 238 00:20:20,480 --> 00:20:26,360 aren't strictly speaking a part, a true part of the story as the caught you red handed 239 00:20:26,360 --> 00:20:31,640 kind of thing. And that has happened enough times now that true crime podcasters really 240 00:20:31,640 --> 00:20:36,000 need to understand that it's going to be bad for your reputation. It's going to be bad 241 00:20:36,000 --> 00:20:42,600 for your audience and your advertisers might run away. I'm aware of one situation where 242 00:20:42,600 --> 00:20:49,640 the show was accused of plagiarism by a journalist. And, you know, it didn't rise to the level 243 00:20:49,640 --> 00:20:55,160 of a lawsuit. It was just sort of a public shaming, basically. But then their advertisers 244 00:20:55,160 --> 00:20:59,920 canceled out on them. And that's when it became a legal issue because now the host of the 245 00:20:59,920 --> 00:21:06,040 show came to me and said, Hey, my advertisers are breaking their contract with me. Let's 246 00:21:06,040 --> 00:21:10,280 look at the contract and see if we have any recourse. And the advertisers were relying 247 00:21:10,280 --> 00:21:14,200 on this provision in the contract that says you promise not to do anything that will bring 248 00:21:14,200 --> 00:21:19,640 you into disrepute. And so then we had so this podcaster lost a fair chunk of money 249 00:21:19,640 --> 00:21:24,880 from that particular sponsor. And there wasn't much we could do about it from a legal standpoint. 250 00:21:24,880 --> 00:21:29,400 We threatened them we raised, you know, rattled sabers and things, but ultimately, probably 251 00:21:29,400 --> 00:21:31,120 not much to do there. 252 00:21:31,120 --> 00:21:36,920 Wow. I mean, when it when money's on the line, especially, it's like you better remind your 253 00:21:36,920 --> 00:21:41,720 P's and Q's, but you made a really good point about your reputations on the line as well. 254 00:21:41,720 --> 00:21:45,760 So what would you recommend if let's say I want to talk factually about things that are 255 00:21:45,760 --> 00:21:50,620 going on, whether it's your crime or any subject, what is the best way to go about sharing my 256 00:21:50,620 --> 00:21:56,200 knowledge that I am learning from other people on my podcast and give proper attribution? 257 00:21:56,200 --> 00:22:03,040 So those are the things a give proper attribution, get it from multiple sources whenever possible. 258 00:22:03,040 --> 00:22:07,000 And that's also just a sort of fact checking component of things, because you don't you 259 00:22:07,000 --> 00:22:10,760 don't want to get it wrong either, you could get in a lot of trouble for defamation libel 260 00:22:10,760 --> 00:22:16,320 or libel in the case of podcasting, if you tell the facts wrong, and it disparages a 261 00:22:16,320 --> 00:22:23,080 person's reputation. So multiple sources corroboration, do your homework, do your own journalism 262 00:22:23,080 --> 00:22:29,460 for to whatever level you can. And give attribution where it's due, you know, the there's there's 263 00:22:29,460 --> 00:22:37,720 room in everybody for everybody in this boat of success. If you if you use someone else's 264 00:22:37,720 --> 00:22:40,240 journalistic work, and you just say, Hey, you know, I was reading the article by so 265 00:22:40,240 --> 00:22:44,440 and so and it said this, this and this and then I went and checked over here. Now you 266 00:22:44,440 --> 00:22:49,600 sound you're doing the work you're doing a documentary style presentation of information 267 00:22:49,600 --> 00:22:56,120 and and something yeah, something that takes away from the style of let me tell you a story. 268 00:22:56,120 --> 00:23:01,280 Kind of thing. But there are there are ways to do it, even if it's just, you know, a footnote 269 00:23:01,280 --> 00:23:04,720 or an at the end of the you know, acknowledgments or something like that in the credits, there's 270 00:23:04,720 --> 00:23:09,800 good ways to do it. And I think most of the time they appreciate it, and they're not miffed 271 00:23:09,800 --> 00:23:13,280 over being referred to. So 272 00:23:13,280 --> 00:23:19,760 well, one of the things that I've been seeing a lot is people using Reddit as their source. 273 00:23:19,760 --> 00:23:24,080 And they'll just say, I saw this on Reddit. To me, that's not enough of an attribution. 274 00:23:24,080 --> 00:23:28,200 What do you think about that? Not only is it not enough of an attribution, it's also 275 00:23:28,200 --> 00:23:35,320 not reliable. I mean, you know, if you if you cite a fact from Reddit, chances are, 276 00:23:35,320 --> 00:23:42,160 I can go on Reddit and find two contrary facts to the same point, you know, what's the old 277 00:23:42,160 --> 00:23:48,340 saying there are lies, damn lies and statistics. That's true as on Reddit as anywhere. And 278 00:23:48,340 --> 00:23:53,340 I don't think it's about a rely. I mean, there are some subreddits that are better than others 279 00:23:53,340 --> 00:24:01,240 where the the folks are doing the due diligence, and there's some reliability to it. But if 280 00:24:01,240 --> 00:24:05,280 you see something on Reddit, and you're going to use it, maybe dig a little deeper and find 281 00:24:05,280 --> 00:24:09,160 out where'd you get that information? You know, ask the original poster, hey, where'd 282 00:24:09,160 --> 00:24:10,160 you get that? And 283 00:24:10,160 --> 00:24:14,280 what? Well, and to me, not only that, it's like they should also include the link of 284 00:24:14,280 --> 00:24:17,680 the of the thing that they're referencing. For example, the 285 00:24:17,680 --> 00:24:21,400 Reddit in an article, they should tell you what article and you can then you know, go 286 00:24:21,400 --> 00:24:26,520 as far close to the primary source as possible. Now, if you can't interview the president, 287 00:24:26,520 --> 00:24:32,240 well then what what NBC's interview said, and in the quote from them is good, that's 288 00:24:32,240 --> 00:24:38,600 a that's as close to a primary source as you get. But it doesn't hurt to try to interview 289 00:24:38,600 --> 00:24:42,920 the person who said it or the person who did it or someone who was there and witnessed 290 00:24:42,920 --> 00:24:48,280 the events and those kinds of things. Relying on that third hand, fourth hand, it's all 291 00:24:48,280 --> 00:24:53,720 it's here's in court, we call it hearsay. And it's not admissible in court. And shouldn't 292 00:24:53,720 --> 00:25:01,340 be admissible in in podcasts either except it's useful if you're establishing the way 293 00:25:01,340 --> 00:25:07,000 the public reacted or what people thought about a particular thing. But it has its place, 294 00:25:07,000 --> 00:25:11,000 but it's not front and center most of the time. Well, then one more thing I want to 295 00:25:11,000 --> 00:25:15,160 talk about then is we've talked about sampling music, we've talked about, you know, that 296 00:25:15,160 --> 00:25:18,960 you should make sure you get to the primary source as close as you possibly can. But what 297 00:25:18,960 --> 00:25:24,120 about podcasters who are using clips from other people's podcasts, they're giving attribution, 298 00:25:24,120 --> 00:25:27,920 but they're giving just like a little clips, and then they're making comments on it. Does 299 00:25:27,920 --> 00:25:33,720 that fall under fair use or not? So this is a common question if they're if they, excuse 300 00:25:33,720 --> 00:25:39,800 me, if they are reacting to what they're hearing, if they're sharing an opinion, the criticism, 301 00:25:39,800 --> 00:25:45,280 the commentary, that's going to answer factor one of the of the four factor analysis I was 302 00:25:45,280 --> 00:25:52,000 telling you about the purpose and character of the infringing use. So yes, it's technically, 303 00:25:52,000 --> 00:25:56,840 you know, you're using somebody else's stuff that's copying that violates copyright law 304 00:25:56,840 --> 00:26:03,440 unless you have this excuse. So yeah, taking a short snippet, doing the reaction. Again, 305 00:26:03,440 --> 00:26:07,480 if there's no market for the original, those kinds of things, it's it might be fair, I'm 306 00:26:07,480 --> 00:26:12,520 not going to say probably, but it might be fair use. And it's something you can do the 307 00:26:12,520 --> 00:26:21,560 analysis, you know, shorter and smaller pieces less substantial, arguably. So I would, I 308 00:26:21,560 --> 00:26:25,920 would say that's the direction to go. But I know of people on this is a YouTube channel 309 00:26:25,920 --> 00:26:32,920 where he shows an entire episode of a television program. And and he comments and he stops 310 00:26:32,920 --> 00:26:37,800 during the show and does he's on screen in a bubble the whole time reacting and those 311 00:26:37,800 --> 00:26:42,840 kind of things. And YouTube seems to think that's okay. So that's fair use. I'm not sure 312 00:26:42,840 --> 00:26:49,280 YouTube is the ultimate arbiter of those things. But at least on YouTube, they are and seems 313 00:26:49,280 --> 00:26:54,400 to be working. So yeah, I don't think that the YouTube's thoughts on things should be 314 00:26:54,400 --> 00:26:58,340 the end all be all I was just listening to the Colin and Samir show. And they were talking 315 00:26:58,340 --> 00:27:03,000 about YouTubers that are actually stealing scripts verbatim, and then reading them. And 316 00:27:03,000 --> 00:27:06,880 it's like, No, that's not okay. It's worse than that. They're not just copying the script. 317 00:27:06,880 --> 00:27:11,280 They're copying shot for shot the footage and every I mean, they're doing an exact duplicate 318 00:27:11,280 --> 00:27:17,400 of the original video. Yeah. And I don't know why people like that's okay. Yeah, I don't 319 00:27:17,400 --> 00:27:21,040 either, especially when it's not even their story. Like, whatever you're talking about, 320 00:27:21,040 --> 00:27:26,760 Oh, my mom gave me this when I was five years old. No, she did. Right. Right. It's like, 321 00:27:26,760 --> 00:27:32,160 that's what someone else said. That was their story. Yeah. But I guess we do it all for 322 00:27:32,160 --> 00:27:37,680 the views, don't we? Whatever it takes to get people liking us. Something like that. 323 00:27:37,680 --> 00:27:41,000 But it sounds like I mean, everything that we've talked about, we've barely scratched 324 00:27:41,000 --> 00:27:46,000 the surface of podcast law. So where can people go to get more information about legalities 325 00:27:46,000 --> 00:27:51,720 and podcasting? Well, you know, the best way to is just Google me. But Gordon firemark.com 326 00:27:51,720 --> 00:27:57,520 is the website where I sort of use as a hub for all of my I should say for my non law 327 00:27:57,520 --> 00:28:03,400 practice products and services, I've got forms and templates and courses and, and a free 328 00:28:03,400 --> 00:28:08,080 podcast release all those things Gordon firemark.com. And if you're more interested in the legal, 329 00:28:08,080 --> 00:28:13,440 you want to well, you can reach me through the Gordon firemark.com or the podcast lawyer.com 330 00:28:13,440 --> 00:28:17,960 works and at least are listening to your podcast. Yeah, well, I've got a couple of shows. If 331 00:28:17,960 --> 00:28:22,720 you don't mind, I'll share about that my my flagship show the one I started 14 years ago, 332 00:28:22,720 --> 00:28:30,920 entertainment law update.com. It is a monthly roundup of legal news discussion about the 333 00:28:30,920 --> 00:28:35,600 cases that are coming out of the courts each month in the field of entertainment law, a 334 00:28:35,600 --> 00:28:39,600 little bit of a high level discussion. My colleague and I are both lawyers and we talk 335 00:28:39,600 --> 00:28:44,200 about the legal principles, try to make it digestible for non lawyers. But most of our 336 00:28:44,200 --> 00:28:49,440 audience there is, is other entertainment lawyers and students of the field. But then 337 00:28:49,440 --> 00:28:55,320 I do another show I do it as a live stream and audio podcast. It's called legit podcast 338 00:28:55,320 --> 00:29:02,120 pro. And find me on YouTube and Facebook and LinkedIn and Twitter and Twitch and there's 339 00:29:02,120 --> 00:29:08,520 a couple others I think but as well as on the podcasting platforms. So legit podcast 340 00:29:08,520 --> 00:29:12,960 pro is the one I make for you folks. Awesome. Well, I will definitely leave all the links 341 00:29:12,960 --> 00:29:16,480 to all that good stuff in the show notes. But before I let you go, I have to ask you 342 00:29:16,480 --> 00:29:20,800 the one question I ask everyone before I let them go. Is there anything I didn't ask you, 343 00:29:20,800 --> 00:29:27,360 you really wish I had? Wow. No, I think you've done a great job with this interview. I mean, 344 00:29:27,360 --> 00:29:31,160 there's always as you said, there's tons we could talk about. We hit on some of the high 345 00:29:31,160 --> 00:29:37,280 points and and appreciate your asking the right questions from the get. Yeah, I appreciate 346 00:29:37,280 --> 00:29:40,200 it too. And I think everything you've shared is really important. And I hope that people 347 00:29:40,200 --> 00:29:44,160 will take this for what it is, is just a starting point. Like because there is so much that 348 00:29:44,160 --> 00:29:48,360 you need to know. And it can feel overwhelming at times, but it's better to be safe than 349 00:29:48,360 --> 00:29:53,800 sorry. Because I'm sorry, but ignorance will not count whenever you get slapped with a 350 00:29:53,800 --> 00:30:00,200 lawsuit. That is exactly right. I didn't know isn't an excuse. And sometimes it's actually 351 00:30:00,200 --> 00:30:08,400 evidence of your negligence. Oh, yeah, no, look, there are a few sort of foundations, 352 00:30:08,400 --> 00:30:14,440 you know, getting these things, the knowledge of the of the issues, getting that business 353 00:30:14,440 --> 00:30:19,960 structure if you're working with team, getting your intellectual property stuff figured out. 354 00:30:19,960 --> 00:30:25,880 And you do do those things and build a foundation so that you can stack things on top and keep 355 00:30:25,880 --> 00:30:29,960 going. That's awesome. Well, thank you so much for Gordon for being here on the show 356 00:30:29,960 --> 00:30:33,600 today. I love everything you shared. Thank you. It's been great, Ashley. I'm glad to 357 00:30:33,600 --> 00:30:39,120 have been here. Well, my fellow podcasters, we hope you enjoyed the insights, tips and 358 00:30:39,120 --> 00:30:44,440 ideas shared in this episode. To learn more about launching and growing your own show, 359 00:30:44,440 --> 00:30:50,400 head over to rss.com backslash blog. And if you're ready to launch a podcast of your own, 360 00:30:50,400 --> 00:31:11,200 you can get started for free with your first episode on us. Thanks for tuning in.