This guest column is by broadcast law attorney and frequent guest contributor David Oxenford. The article was originally published on his Broadcast Law Blog.
In recent weeks, I’ve written about my presentation at the Podcast Movement Convention on legal issues for broadcasters who are thinking about podcasting, and followed up with an article warning any company with employees or contractors creating podcasts or other digital media projects to be sure to clarify who owns the content that is created. Recently, there has been litigation about another issue – the individuals featured in podcasts suing the producer for unauthorized uses of the interviews recorded for use in the podcast, under theories including the invasion of privacy or violation of the rights of publicity of the interviewees.
One lawsuit receiving significant publicity (see for instance the detailed articles here and here) is from the family of the individual who became the main focus of the popular podcast S-Town. The podcast focused much of its attention on the life of an individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity. Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest. Most broadcasters, covering news events, don’t routinely run up against the restrictions set out in these laws. But podcasts and various other reality programming may be more lifestyle-oriented, and may detail private facts about individuals who are not in the news, leading to issues like these. Getting a release from the subject of an interview waiving any such rights, and otherwise giving the producer the rights to exploit the recordings that are made, can help to reduce the risk that these laws may otherwise pose. Plus, there are other reasons that a release may be helpful.
Recently, there have been news reports (see, for example, this article) about the stories developed in podcasts being developed into movies or television programming – or otherwise being used beyond the original medium for which they were created. Having the rights from the individuals interviewed for the podcast to use in any medium the recordings made in connection with the podcast and the stories the interviewees tell makes it somewhat safer to repurpose that content for use in later productions. So, as I said in Philadelphia, while podcasts are not regulated by any specific government agency, they do raise legal issues that need to be considered.
I’ll be discussing legal issues for podcasters in a webinar sponsored by the Michigan Association of Broadcasters on September 20. The webinar will be available to members of certain other state broadcast associations – so check with your association to see if they are participating.