Hey everyone, Ashley here with RSS.com. In today's episode, we're chatting with the podcast
lawyer Gordon Firemark. We'll be chatting all about using music legally in your podcast,
plagiarism, and how to go about properly setting up a podcast if you plan on having a co-host
for your show. There's a lot to unpack, so let's dive in. Enjoy the show.
I'm really excited to have you on the show. I can't even. It's fun. It's gonna be good.
Okay. Well, Gordon, welcome to the show. Can you do us a favor and tell us what it is you
do? Well, hi Ashley. Thanks for having me. I am Gordon Firemark and they call me the
podcast lawyer because I am a lawyer who podcasts and a podcaster who is a lawyer, but I am
also a lawyer who helps and works with podcasters and podcast industry, businesses and creatives
and all those kind of folks. I just love getting my hands dirty with the entertainment law
stuff that finds its way into the podcasting world.
Well, when it comes to podcasting, when did that come into your space?
Oh my gosh. I'm an OG podcaster if I do say so myself. I think my first podcast guest
appearance was around 2005 or 2006 and I was invited to answer questions for a podcast
for videographers at the time. And then that guy who hosted that show, he and I ended up
creating a show where every couple of weeks we would answer questions. That came up a
show that I think we started in 2006 called, maybe it was 2007, The Law and Video was
the name of the show. And that show ended because his boss got wind of it and said he
was moonlighting and he had to stop. And I was hooked. And being a sound guy and a tech
geek and into computers and all that stuff, I said, okay, I got to keep doing this. So
I figured it out and I launched my own show in 2009. And tomorrow morning we were going
to record our 156th episode. That's the 14 year anniversary episode for the show.
Well that's exciting. So I got you to celebrate. That's really cool. So I'll have to cue the
bells and whistles. So you started before podcasting though. You were doing what kind
of law? I was an entertainment lawyer. I came out of the theater community and studied radio,
TV, and film in college and then became a lawyer. And so I worked with entertainment
folks, independent film, independent playwrights and theater producers and those things. I
always been on the side of the little guy, the independent community. And yeah, so I
got, I've been practicing since the early nineties, 30 years in law practice now. And
I adopted new media as my marketing strategy very early on. I started a blog before blog
was the term, before WordPress was the thing. I actually, I found a book in a bookstore
about how to create a database backed website. And I built my own from, you know, coded it
myself and all that talk about being a geek. And so, you know, I was doing any newsletter
and then turning blog posts into, you know, all that kind of stuff. And so when podcasting
became a thing, I got very excited very early. I was listening to guys like Leo Laporte and
Adam Curry and then those guys early in the days and, and call me an early adopter. I'm
a geek. I jumped right in. I think that's awesome. So, I mean, since you were already
doing stuff in the entertainment industry, the transition into podcasting sounds like
it was pretty simple. Yeah. As far as my practice in the law of podcasting, I try to think,
well certainly when I started my own show, I went looking to make, you know, to find
out where are the differences between the stuff that I think of if I'm representing
a filmmaker and you know, what do I do? And that's how it led to me writing my, my first
book called the podcast blog and new media producers legal survival guide and put that
out and originally launched it at a new media expo back in the, in the early teens, I think.
And yeah, so it is different enough in a few ways from these other media that I work with
that I had to do a little learning and educating myself. And now I'm on a mission to educate
everybody else. Well, and in a lot of ways, I mean, in being an early adopter, it sounds
like you kind of were there when they were first beginning to figure out what even podcast
law looked like. I think I'm the guy who helped them, who figured out what podcast law looked
like in the sense of essentially identifying the areas where it's not lockstep with the
film business and the television and radio. You know, there's a lot of folks who come
to podcasting from the radio world and they think that you can do everything the same
way you did when you worked at a radio station. And I'd say that's one of them, the biggest
friction points for people is no, this isn't terrestrial radio. We don't have the same
ease of use of the licensing for music and the rules about having a guest on the show
or taking call ins and things like that. And we have to be a little more disciplined in
the podcasting world because the industry isn't old enough to have established those
norms and set up those, what we call compulsory licenses and things like that, that are existing
in the radio world. Well, speaking of what kind of things do you see podcasters deal
with in terms of legal issues? Well, the big one is copyright law. Whenever somebody starts
a show, they always decide they want to use a famous piece of music as their intro or
something like, or they just want to do a music show. And it's just really, really hard.
The music industry hasn't embraced podcasting as a medium that brings them any benefit.
So if you're willing to pay a lot of money, you can get a license to use a piece of music,
but they don't make it easy and it isn't really beneficial to them. So they're not eager to
come to the table. Other issues that come up are in the true crime arena, we have a
lot of plagiarism claims that come up. It's not always copyright infringement, but certainly
attribution issues and people passing off other people's work as their own. When they
go from the journalistic reports in the newspapers and they make a true crime podcast, they're
not doing their own work to verify and gather the data. And then the other, actually the
biggest one that I've dealt with in terms of the most dollars spent on legal and fights
and things usually has to do with the co-ownership of podcasts. Two people sit down together
to have a little fun and make a show. And then one of them decides to leave or wants
the other one to leave and then forces them out. And then you have these, I call them
pod divorces. And I advocate strongly that you should get things in writing upfront.
I call it a podcast prenup. And it really is designed to smooth the way women, if that
podcast divorce ever has to come to pass.
Wow. I got to say, whenever we sat down, I was thinking we were just going to talk about
music and plagiarism. I never in a million years thought you were going to bring up podcast
divorces because that's just not something I would have thought of. But at the same time,
it completely makes sense because so many people are like, oh, let's start a podcast
with our friends. I guess I never thought of the legal aspects of it. So what would
you recommend if someone wanted to start a podcast with their friend?
Well, I think that even if you don't necessarily aim to make money from what you're doing,
I think coming at it, looking at it like you're starting a business with somebody makes a
lot of sense because what you are doing or marriage, I mean, thinking about people going
to marriages a little more casually than they go into business, which is kind of bizarre,
but it's a bigger commitment if you ask me. But you're going to be assembling assets
and bringing stuff of yours to this partnership, this venture together, and you're going to
be creating new things. So it's the house and the kids and the cars and the pets and
all those things. Same is true in podcasting. You're creating these assets that are going
to need to be dealt with someday down the line, either because you're getting that divorce
you're breaking up or because you're going to join a big platform or you're getting bought
by a production company or all kinds of things can happen. You just want to have those ducks
in a row and be ready for the opportunities and the eventualities that come up.
That's brilliant advice. So if you're trying to start a podcast with a friend, it almost
seems like you need to also figure out what the roles and responsibilities are. If you
guys are going to be committing any money into it, you need to write all that stuff
out too. Is that right?
Yeah, that's the stuff that goes in this document that I refer to as a podcast prenup, but it
can take a lot of different forms. Sometimes it's just a simple collaboration equal 50-50.
We're going to share everything, expenses and revenues and assets. Although then you
do want to think about, well, what happens if somebody leaves, dies, gets sick, can't
participate or whatever. So having those what ifs answered is important. But sometimes it's
the LLC operating agreement if you're forming an LLC or a more formal joint venture co-production
agreement. Or sometimes you just bring in on a host, a co-host. In my own show's situation,
my co-host is, that's her job. She's just co-host, which is saying a lot. But it's my
show. She's there because I've invited her to come on and we shared things a certain
way. Again, just having those things in writing in a way that establishes some clarity from
the get-go.
It sounds like if you're going to go into this kind of thing, you don't need to think
of it as a bad thing. It's more of just a protections thing.
Absolutely. Same thing. When you're joining any kind of a team relationship situation,
it's good to know what you're getting into. It's good to think about some of those what
if questions that I was mentioning just so that you aren't one sided later on if something
changes.
Yeah. That makes complete sense. I just can't believe that's not even what was in my brain
whenever we sat down to talk about legalities and podcasting. But here we are. The more
you know.
It's why I do what I do, bringing these issues to people's attention. Everybody's talking
about music, so that's easy. But let's talk about music.
Yes. Let's talk about music. That's one of my favorite things. I've noticed that there's
this big myth, and I spoke with you about this before we got on. There's this big myth
that, oh, I can sample seven seconds. Tell me about that.
It's what you described. It's a myth. It's understandable that people have these ideas
about things. Another one is I'm not making any money from it, so it's okay. The rule
is very basic. It's very simple. If somebody else made it and you didn't buy it from them,
you shouldn't use it. Copyright comes into existence the moment an author, an artist
creates something original. Period. You don't have to register anything, file anything,
pay any money or nothing. You own a copyright from that moment, and that means that the
copyright owner has the exclusive right to make and distribute copies and display and
perform the work and make things based on it or incorporating it and those kinds of
things. So when you make a podcast episode and you use a piece of music that comes from
somewhere else that you didn't create, that person has the exclusive right. That means
they can say no or they can charge you money. So that's the basic rule, copyright. There
is a principle in copyright law because here in the U.S. we have the First Amendment freedom
of speech. This principle called fair use came up as a way of dealing with this fact
that on the one hand, the First Amendment says Congress shall make no law abridging
freedom of speech and of the press, among other things. On the other hand, you have
this law that says you can't make copies of stuff you find out in the wild. So we have
an inherent conflict. So in the course of the early part of the 20th century, the judges
had to deal with this on various cases and they developed this fair use doctrine which
established a multi-factor balancing test that you have to do every single time to see
is it fair or isn't it. One of those elements of that test, one of the factors is the amount
and substantiality of the portion taken relative to the whole. That's where people get this
idea that a few seconds is okay. And sometimes it is and sometimes it isn't because there's
three other factors you have to consider. The nature of the original work, the purpose
and character of the infringing work and the harm to the market or impact on the market
or value of the original. And that's the big one because the music industry, they're in
the business of selling licenses to use music. So it's easy for them to point to yes, there's
a market impact and if everybody starts doing this, this market goes away. This industry
goes away. So it really comes down to this analysis having to be done on a case by case
basis. There's no rule of thumb. You say seven seconds, some people refer the musical term,
they'll say four bars. But I've seen situations where even just three seconds of something
was too much because the record label or the music publishing company wasn't happy about
it. And honestly, even if it is a fair use, you're going to spend $100,000 fighting the
lawsuit to prove it's fair use. Better to pay for the license or choose not to use the
music.
Absolutely. Because I don't know about you, but most of these podcasters that I know,
they don't have $100,000 to fight that.
I don't have a hundred thousand bucks to throw at a problem like that.
Yeah, absolutely. So what would you recommend for someone who wants to use music somewhere
in their podcast? What should they do?
Well, there's a few options. One is what we call royalty free music. And that does not
mean it's free of charge. It just means that you pay once and you don't end up paying an
ongoing fee, which is what we usually think of as a royalty. There are libraries of music
out there that let you do that. You have to be careful because some of them talk about
single use licensing and you pay 30 bucks or something and they say, go ahead, use the
song. The problem that I've seen arise is that the podcaster takes that $35 single use
license and makes it the intro, opening the intro of their show. And so under the license
terms, they owe 35 bucks for every episode they put out. And they didn't think that and
they just write. So again, read the license agreement carefully. If you don't know, ask.
If you don't understand, ask. Some licenses are much more expansive and you can do that
or you can buy the enhanced licenses or something. So do your reading. Other great way to do
it is using the subscription services. There's a few of them out there. I'm not going to
name names because I don't want to endorse any particular brands. I'm not an affiliate.
But you can subscribe. And as long as you remain a subscriber, you have access to their
entire catalog of music. That's a great way to go. If you especially if you want to use
different music every week for different purposes or create bed music. And it's great. You can
use it in YouTube and other media as well. You have to let them know where you're going
to put it. That's a good one. Or you could have a composer or someone create a piece
of music for you or do it yourself. Write a piece of music. But if you want that opening
lick to ACDC, Highway to Hell, get out your check. It's not going to be easy or cheap.
I can imagine. For me personally, for both this podcast and for my own show, Bloggy
Friends show, I actually commissioned someone to write the music because I just after listening
to you talk about it at podcast movement, I was like, I'm not taking any chances. I'm
going to hire someone to make my music. That's a great strategy for just solid business reasons
also because now you're building a brand that is distinctive and stands apart. So it's not
just I mean, we've all had that experience of watching a video or listening to something
and saying, I've heard that piece of music before. In fact, my own show, I use the outro
of my show is this clarinet music song that actually was licensed through, gosh, I think
it was Garage Band some time ago. But that same piece of music was used as the ending
credits music for This Old House on PBS. And I just never really thought about it until
I, oh yeah, wait, that's not my music. It's their music. That kind of thing. So better
to have distinctive stuff that's yours so that people hear that music. Oh, that's Ashley's
show.
I love that. I love that so much. And you know, what's really cool is, you know, if
you're, if you're trying to come up with new music and you don't want to pay licensing
fees or stuff like that, you could just talk to local musicians who are trying to get their
name out there and maybe like work out some sort of deal with them. But again, like Gordon
said, get it in writing.
The truth is, and there's a lot of legal issues that have still been unresolved around this,
but now we're living in the era of AI. And it is not inconceivable that there will be
tools out there that can actually I think they're already out there. If you give it
a set of parameters, it'll give you 30 seconds of music that is, you know, this, this number
of beats per minute, this kind of musical tone, this kind of vibe. And that may be another
option for podcasters to start looking at.
Yeah, I think we're gonna see some interesting things happen in that. Because I've seen some
articles recently about like music producers and record labels that are scrambling to figure
out how they can prevent their stuff from being sampled with AI programs.
And we've even got artists who are now threatening and suing companies because they're making
music that sounds just like the artist. There was a case this last week with Drake in the
weekend, a song came out, it was on Spotify and those guys never performed that song,
never wrote it, never recorded it. But you listen to it, it sure sounds like them.
That's crazy. I can't even. And I mean, it kind of makes sense though, because like we've
already got, you know, with your, with Descript, how it can auto-dub your voice in, and we've
got all those deep fake videos. So we're in wild times.
I'll tell you that my performance, my non-performance of the Gettysburg Address is brilliant. It
sounds just like me, but I used one of those tools to create. So it's pretty amazing.
Strange times, just strange times. Like I was watching TikTok the other day and I was
watching all these Tom Cruise videos and none of them are Tom Cruise. And I'm like, because
he even came out on the record. He's like, I do not have a TikTok account, period.
Oh, wow.
So it's like, it's insane to, because the guy is very good at like even like making
the mannerisms and you really think it's Tom Cruise, then you realize it's not. So it's
very scary times indeed. But also exciting because there's so much that can unfold from
the technology that's becoming available. But so the other thing that you mentioned
that I thought was interesting was plagiarism with true crime. Can you tell me a little
bit about that?
Well, plagiarism is the copying of the ideas or the facts. You know, facts and ideas are
not covered or protected under copyright law. So I can tell the story of a historical event
my way without a problem. But plagiarism is the sort of intellectual dishonesty of using
someone else's work to tell your story without acknowledging that it's their work. So when
that true crime podcaster gets all of its information from the newspaper clippings of
the person who was covering the story for a year while the police hunted for the killer
or whatever it was, and doesn't acknowledge that they got the data, the information from
that journalist, that's plagiarism. And sometimes journalists plant little things in there that
aren't strictly speaking a part, a true part of the story as the caught you red handed
kind of thing. And that has happened enough times now that true crime podcasters really
need to understand that it's going to be bad for your reputation. It's going to be bad
for your audience and your advertisers might run away. I'm aware of one situation where
the show was accused of plagiarism by a journalist. And, you know, it didn't rise to the level
of a lawsuit. It was just sort of a public shaming, basically. But then their advertisers
canceled out on them. And that's when it became a legal issue because now the host of the
show came to me and said, Hey, my advertisers are breaking their contract with me. Let's
look at the contract and see if we have any recourse. And the advertisers were relying
on this provision in the contract that says you promise not to do anything that will bring
you into disrepute. And so then we had so this podcaster lost a fair chunk of money
from that particular sponsor. And there wasn't much we could do about it from a legal standpoint.
We threatened them we raised, you know, rattled sabers and things, but ultimately, probably
not much to do there.
Wow. I mean, when it when money's on the line, especially, it's like you better remind your
P's and Q's, but you made a really good point about your reputations on the line as well.
So what would you recommend if let's say I want to talk factually about things that are
going on, whether it's your crime or any subject, what is the best way to go about sharing my
knowledge that I am learning from other people on my podcast and give proper attribution?
So those are the things a give proper attribution, get it from multiple sources whenever possible.
And that's also just a sort of fact checking component of things, because you don't you
don't want to get it wrong either, you could get in a lot of trouble for defamation libel
or libel in the case of podcasting, if you tell the facts wrong, and it disparages a
person's reputation. So multiple sources corroboration, do your homework, do your own journalism
for to whatever level you can. And give attribution where it's due, you know, the there's there's
room in everybody for everybody in this boat of success. If you if you use someone else's
journalistic work, and you just say, Hey, you know, I was reading the article by so
and so and it said this, this and this and then I went and checked over here. Now you
sound you're doing the work you're doing a documentary style presentation of information
and and something yeah, something that takes away from the style of let me tell you a story.
Kind of thing. But there are there are ways to do it, even if it's just, you know, a footnote
or an at the end of the you know, acknowledgments or something like that in the credits, there's
good ways to do it. And I think most of the time they appreciate it, and they're not miffed
over being referred to. So
well, one of the things that I've been seeing a lot is people using Reddit as their source.
And they'll just say, I saw this on Reddit. To me, that's not enough of an attribution.
What do you think about that? Not only is it not enough of an attribution, it's also
not reliable. I mean, you know, if you if you cite a fact from Reddit, chances are,
I can go on Reddit and find two contrary facts to the same point, you know, what's the old
saying there are lies, damn lies and statistics. That's true as on Reddit as anywhere. And
I don't think it's about a rely. I mean, there are some subreddits that are better than others
where the the folks are doing the due diligence, and there's some reliability to it. But if
you see something on Reddit, and you're going to use it, maybe dig a little deeper and find
out where'd you get that information? You know, ask the original poster, hey, where'd
you get that? And
what? Well, and to me, not only that, it's like they should also include the link of
the of the thing that they're referencing. For example, the
Reddit in an article, they should tell you what article and you can then you know, go
as far close to the primary source as possible. Now, if you can't interview the president,
well then what what NBC's interview said, and in the quote from them is good, that's
a that's as close to a primary source as you get. But it doesn't hurt to try to interview
the person who said it or the person who did it or someone who was there and witnessed
the events and those kinds of things. Relying on that third hand, fourth hand, it's all
it's here's in court, we call it hearsay. And it's not admissible in court. And shouldn't
be admissible in in podcasts either except it's useful if you're establishing the way
the public reacted or what people thought about a particular thing. But it has its place,
but it's not front and center most of the time. Well, then one more thing I want to
talk about then is we've talked about sampling music, we've talked about, you know, that
you should make sure you get to the primary source as close as you possibly can. But what
about podcasters who are using clips from other people's podcasts, they're giving attribution,
but they're giving just like a little clips, and then they're making comments on it. Does
that fall under fair use or not? So this is a common question if they're if they, excuse
me, if they are reacting to what they're hearing, if they're sharing an opinion, the criticism,
the commentary, that's going to answer factor one of the of the four factor analysis I was
telling you about the purpose and character of the infringing use. So yes, it's technically,
you know, you're using somebody else's stuff that's copying that violates copyright law
unless you have this excuse. So yeah, taking a short snippet, doing the reaction. Again,
if there's no market for the original, those kinds of things, it's it might be fair, I'm
not going to say probably, but it might be fair use. And it's something you can do the
analysis, you know, shorter and smaller pieces less substantial, arguably. So I would, I
would say that's the direction to go. But I know of people on this is a YouTube channel
where he shows an entire episode of a television program. And and he comments and he stops
during the show and does he's on screen in a bubble the whole time reacting and those
kind of things. And YouTube seems to think that's okay. So that's fair use. I'm not sure
YouTube is the ultimate arbiter of those things. But at least on YouTube, they are and seems
to be working. So yeah, I don't think that the YouTube's thoughts on things should be
the end all be all I was just listening to the Colin and Samir show. And they were talking
about YouTubers that are actually stealing scripts verbatim, and then reading them. And
it's like, No, that's not okay. It's worse than that. They're not just copying the script.
They're copying shot for shot the footage and every I mean, they're doing an exact duplicate
of the original video. Yeah. And I don't know why people like that's okay. Yeah, I don't
either, especially when it's not even their story. Like, whatever you're talking about,
Oh, my mom gave me this when I was five years old. No, she did. Right. Right. It's like,
that's what someone else said. That was their story. Yeah. But I guess we do it all for
the views, don't we? Whatever it takes to get people liking us. Something like that.
But it sounds like I mean, everything that we've talked about, we've barely scratched
the surface of podcast law. So where can people go to get more information about legalities
and podcasting? Well, you know, the best way to is just Google me. But Gordon firemark.com
is the website where I sort of use as a hub for all of my I should say for my non law
practice products and services, I've got forms and templates and courses and, and a free
podcast release all those things Gordon firemark.com. And if you're more interested in the legal,
you want to well, you can reach me through the Gordon firemark.com or the podcast lawyer.com
works and at least are listening to your podcast. Yeah, well, I've got a couple of shows. If
you don't mind, I'll share about that my my flagship show the one I started 14 years ago,
entertainment law update.com. It is a monthly roundup of legal news discussion about the
cases that are coming out of the courts each month in the field of entertainment law, a
little bit of a high level discussion. My colleague and I are both lawyers and we talk
about the legal principles, try to make it digestible for non lawyers. But most of our
audience there is, is other entertainment lawyers and students of the field. But then
I do another show I do it as a live stream and audio podcast. It's called legit podcast
pro. And find me on YouTube and Facebook and LinkedIn and Twitter and Twitch and there's
a couple others I think but as well as on the podcasting platforms. So legit podcast
pro is the one I make for you folks. Awesome. Well, I will definitely leave all the links
to all that good stuff in the show notes. But before I let you go, I have to ask you
the one question I ask everyone before I let them go. Is there anything I didn't ask you,
you really wish I had? Wow. No, I think you've done a great job with this interview. I mean,
there's always as you said, there's tons we could talk about. We hit on some of the high
points and and appreciate your asking the right questions from the get. Yeah, I appreciate
it too. And I think everything you've shared is really important. And I hope that people
will take this for what it is, is just a starting point. Like because there is so much that
you need to know. And it can feel overwhelming at times, but it's better to be safe than
sorry. Because I'm sorry, but ignorance will not count whenever you get slapped with a
lawsuit. That is exactly right. I didn't know isn't an excuse. And sometimes it's actually
evidence of your negligence. Oh, yeah, no, look, there are a few sort of foundations,
you know, getting these things, the knowledge of the of the issues, getting that business
structure if you're working with team, getting your intellectual property stuff figured out.
And you do do those things and build a foundation so that you can stack things on top and keep
going. That's awesome. Well, thank you so much for Gordon for being here on the show
today. I love everything you shared. Thank you. It's been great, Ashley. I'm glad to
have been here. Well, my fellow podcasters, we hope you enjoyed the insights, tips and
ideas shared in this episode. To learn more about launching and growing your own show,
head over to rss.com backslash blog. And if you're ready to launch a podcast of your own,
you can get started for free with your first episode on us. Thanks for tuning in.