How to Podcast Legally with Gordon Firemark

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.