Legal Tides: Gordon Firemark on Copyright, Contracts, and AI’s Impact on Creators in Podcasting

What is one piece of legal advice every podcaster should hear before launching? Get it in writing. Yeah, get it in writing. Treat it like a business. Make sure you know when you know if you're doing an ad deal or a brand deal. Not just how much they're going to get, you're going to get paid, but when and what you're going to do if you don't. And those kinds of things. Alison, this is my key takeaway for the episode that I'm going to turn into the visual social clip is Gordon, get it

in writing and it's going to repeat. Right? Can chat. GPT write it. Oh, and she's making the face. I love it. I wish it wouldn't. Why do we as podcasters willingly subject ourselves to hours of editing, awkward ad reads, and the existential dread of shouting into the void? If you've ever asked yourself that, or if you're just here to revel in the weird, wonderful world of podcasting, then you're in the right place. Welcome to Sound Strategy

with Lucas Dicke. Without a doubt, this is the most meta podcast about podcasts ever. All right, I'm your host, Lucas Dicke, founder of Deepcast. I'm your podcast producer and occasional co host, Allison Melody. Today's guest helps creatives, artists, entrepreneurs, and others achieve the dream of getting their messages out and making a meaningful impact with their craft. He's known as the Podcast Lawyer. Please welcome Gordon Firemark to the show.

Hey, you guys. Great to be here. Thanks for having me. I love it. Great to have you. I also just love the Podcast Lawyer Thinks. What's the TV show? The Lincoln Lawyer. Had me thinking about that. We need to get you a TV show on Netflix next. Maybe I need to get a Lincoln. You gotta have a signature, right? Right. All right. Well, speaking of shows, as if you don't already have your own show, if you could give a TED Talk performance on something other than law or podcasting,

what would it be about? I think I would be focused on ethics in journalism and media these days. So it's related. I love it. Yeah, I think that's a. It's an area we really need to be paying more attention to. Is there any ethics left in journalism? Probably shouldn't go there, right? Just as long as they're shareholders, there will be lapses in ethics. Let's put it that way. Reminds me of another industry. Pharmaceuticals. Excuse me. Excuse me.

And the list goes on and on. Funny thing is, Gordon, I was just recommending to a previous guest amusing ourselves to death. The Neil Postman book from the 80s, which obviously gets into ethics. Yeah. Through, you know, media as a form of entertainment. And what do we do there and what ramifications do have on listeners? It's a great, great read. What's the weirdest? This is before we get into everything else, what's the weirdest or most hilarious legal question you've

been asked by a podcaster? Clearly you can't name them. Lawyer, confidentiality, etc. But abstract. What's the weirdest or funniest you just didn't expect. And if it was me, don't say my name. You know, I, I don't think there are a lot of weird or funny questions that, that come my way. I mean, trying to think of anything that sort of threw me for a loop. I've had video people ask me about nudity and yeah, you know, where are the

boundaries for that? But even that, you know, I guess it could be funny. But no, I don't, I don't encounter the weird that often. And I'm gonna count my blessings on that one. Yeah, there you go. Or Gordon says, I'm an attorney. There is no weird, there is no legal. It is all valid legal questions. I love it. Indeed.

Before we get into the restroom, I also wanted to say thanks for letting me bum rush you at Evolutions, make you take a selfie with a peace sign simply off of Ali's street cred that I was riding off of her brand equity coattails. Well, I always love to meet new people at those events and knowing that we had this recording on this on the calendar, it was a great fortuitous opportunity. I love it.

I'm just sad I wasn't there for the selfie. Oh yeah, and it was actually at the party, the I Heart party that you missed out at too. That selfie happened, so maybe that a double whammy. Sorry about that. No, stop talking about it. You're making me have fomo rubbing it in. FOMO indeed. Well, let's get into your background for those folks who don't know you. You've been practicing media and Entertainment Law since 1992. What drew you to that practice area in particular? Yeah, I actually came up.

I discovered a love of live theater as a very young kid, five, six years old, in kindergarten and all through, you know, middle school and high school. That was sort of my focus. Never on stage, never front of the camera kind of thing. It was always a behind the scenes thing, sound and lights and stage technology and things like that. And so I went off to college planning to be a theater major, only to discover that it was a performance oriented program. So I shifted over into radio, TV and

film and journalism at the same time. And that was sort of where I was headed, what I thought with my career till my senior year when I had finished up some of my. I had finished up the major and I was just taking graduate level classes that interested me. And one of those was called Government Regulation of the Media. And it was a law class. And I was the only undergrad in this, you know,

600 level class. And I got the top score. And the professor called me out and said, hey, you should think about going to law school. And I literally never thought of it until that moment. Wow. And I was applying to grad school. I was going to go. I wanted to go to film school. And I didn't get into film school, but I did get into law school, so. So go figure. You go where your nose leads you sometimes. And that led to working in entertainment law, which was sort of the obvious conclusion there.

And podcasting kind of came along. I was a few years into practice and looking for ways to market and promote, and blogging was fine, but it's a lot of work to sit down and write a blog post and somehow turning on a microphone and speaking for a few minutes is easier somehow. So at least for me. So that's what I started doing and launched my own podcast 17 years ago now. So round of applause? Yeah, for sure. Definite O.G.

what came first? Is the chicken egg cart horse sort of question. Was it the podcasting first or legal advice to podcasters first? I'm missing the order of operations. Well, so I was doing more generalized entertainment law. Lots of work in independent film and a little bit in music. I've sort of moved away from the music practice and a lot of work with live theater. And then as this new media technology

started coming in, I was thinking about these issues. And when I started my own show, I needed to satisfy myself that I was following the right rules. And I went looking for resources. There were none. So I did some research. I scratched my own itch and sat down and wrote a book. The Podcast Blog and New Media Producers Legal Survival Guide. And you write a book, you become an expert. So that was the. Again the nose pointing me in a direction that became me be being known as the podcast lawyer.

And yeah, I'm happy to say it's worked out very nicely. Love it. Did the title come to you or did you create the title? I have kingofhacks.com, by the way, which redirects to my link LinkedIn profile, because it was a joke that I made to an engineer that became a thing. Yeah. Somebody had called me the theater lawyer in la. I was doing theater stuff and I was about the only guy in LA doing the kinds of things I was doing.

And this fellow called that called me that. So I adopted that at one time and put the little TM after it and registered the domain name and all that. And then. So I was accustomed to that sort of owning your brand. Yeah, sure. And then somebody said a similar thing about podcasting fairly early on in the game, and I think I was on my phone and buying the domain name minutes later. Yeah, yeah. And what's interesting is podcast lawyer.com actually belongs to somebody

else, but the podcast lawyer is me. So always that definite article. Yeah, for sure. I thought you were the first lawyer lawyer with a podcast. So did that guy have it? I don't know how he ended up adopting that, but he's more of a lawyer who podcasts than a podcast than a lawyer, I'm sure a podcast who. Who's a lawyer rather than a lawyer who advises podcasters. So. Got it. And you're just watching, waiting, and one day you'll scoop in and grab that one as well. Probably.

Okay. 17 years. What's your biggest takeaway from being a podcaster? Yourself, either about yourself or the world of podcasting? Before we get into the legal side. Of things, I would say the biggest takeaway is that it is easy to make a podcast and it is extraordinarily hard to make a good podcast. So if you're going to come into this thing, I would say take it seriously, treat it seriously, be businesslike about it and put in the effort and the

planning and the thought. Thinking about it as you. As you get started, so that you really, you know, give it your best, put your best foot forward, because a crappy show is. It reflects worse on you than no show, is what I would say. It's interesting on that front. Where do you see experimentation in the early days before you get to your groove? Is it like you don't start great, you get too great? Maybe this. Are you born great or do you

become a great leader? Question I'm asking. I think it's a bit of both, I think, you know, you have to have what it takes, and you can learn and develop what it takes, but both before you launch and then polish things as you go. But the throw it against the wall and see what sticks approach, I think isn't great. The nice Thing is, when you start a new podcast, you're typically, your listenership is people who know you and like you already. So you've got a lot of

grace there. And it does give you a chance to sort of find your groove and learn some ropes and make the mistakes early on. And that's fine. I'm actually talking more about just knowing your purpose behind the show when you start and. And really having. Being intentional about it, I guess. Yeah. There's a common theme across anyone who's been doing this for at least 15 years, which is have purpose. Right. Dave Jackson.

Have purpose. I can't remember who else. Know your why. Yeah, exactly. Know your why. Yeah. All right. Now, specifically jumping into the legal side of podcasting, what's the biggest mistake that podcasters make when starting out if they are at the beginning of their podcasting journey? What are the common foibles? I think that right there, that not treating it like a business, not being disciplined and intentional

about it. And oftentimes that manifests first as, you know, working with people collaborating without some kind of an agreement or clarity on who's going to own this thing and who's responsible for what, and how are we dividing the expenses and sharing the revenues and. And all of those kinds of things. And unfortunately, that's often where the problems develop later on. A question I get all the time is,

do I need an LLC to start a podcast? It's an important question, and I think it is a part of, at least considering an LLC is a big part of that. Treat it like a business. Be disciplined and businesslike in your approach. The LLC offers a lot of benefits, and certainly that legal structure, that organizational and management structure is valuable, as well as the limited liability, which is the ll in llc, that can be very beneficial, especially if you have other assets

and things that you want to protect. It's. By keeping things separate, you can shield liability, you can shield the podcast from other liabilities and your other business and life and things from liability that arises from the podcast. So it's a good idea, but there's a cost benefit

assessment that needs to be done. And I would say when you're just starting a podcast in those first few episodes and you're not even necessarily sure you're going to keep at it, that's a little too early to be thinking about an LLC. In some places, it's super cheap. You, you know, 35 bucks and you're up and running. But in, in states like my home state of California, you know, it's $1,000 a year proposition to have an LLC. And that's before you pay accountants and people to look after the tax.

You know, so it's definitely something you want to weigh the benefits against the costs. It's $1,000 now because, you know, I moved my business from California to Nashville and difference it was $800. Well, the minimum tax is $800 and there's an annual filing statement and. And few other, do you know, doodads that add up to it. It's about a thousand bucks. Okay, gotcha. Gotcha. Yeah. Yeah. The department of revenues will find you

everywhere. Exactly. The taxman ain't giving up on things too easily. True. Even. Even if we're trying to, you know, remove their funding right now. That being said, do you find Cories Gordon between the world of theater and podcasting in terms of thinking? Like, to me it seems like

they're this not having the business lens on. There's a creative lens and I just want to co create and I'm going to do this thing and we're on stage and by the way, I played this song and it seems like it's going to fit and I'm already starting to book, you know, who's going to come see this show and all that's like, I don't know how many contracts I should have spun up already. Is. Is it very similar to that? I would say

yes. I hadn't really thought about that. More so between the podcasting and the theater side and maybe the music industry tends to be sor. You step into the studio with it, you start recording the film. Folks tend to be a little more focused on what do I need to do to make this happen without getting in trouble. And sometimes that's just because the sizes

of the budgets are so much bigger that everybody takes things more seriously. But in theater, as in podcasting, there's a creative spirit and a desire to just start make the thing and let the other stuff shake out later. Part of that is what I love about working with these people is that creative spark and energy that it inspires me to do better, you know? Yeah, for sure. What's the most overlooked legal issue that you feel like comes back and bites people Consistency

consistently. Is it the sort of relationships with co creator peers? Is it trademark because you use the thing and somebody else Is it. You use unlicensed stuff and do they. Come to you before a problem starts or only when they come to one of the problems? I would prefer that people came to me earlier for the advice and the setup stuff. It's always easier to put protections in place than to undo a problem and fix it and then get those same kinds of protections in place. The most overlooked.

Gosh, I'd say probably it is that need for what I call a podcast prenup, that collaboration agreement or co production or joint venture or. It depends on the nature of the relationship. Are you hiring on a co host who's just going to show up and be a co host, or are you making a broader partnership and really getting into the whole venture with. Everybody's on the same team from the very beginning, but even your guests. You know, I advocate having your guests sign a release that just says,

I understand you're going to record me. You're going to publish this. I'm not going to get to ask you to take it down later. You're going to edit it. You can do what you want. You don't have to pay me. You know, those kinds of things. It's amazing how often that comes back to bite people. The takedown. And a lot of podcasters say, yeah, you know what? So I take an episode down and that's great. Until you've got sponsors that expected that episode to be there forever. Yeah, that's great.

Unless you're doing journalism or trying to tell a coherent story from episode to episode and now you've got a big hole in the feed or something like that. So use my free release. That's. That's what it's there for. PodcastRelease.com how do you like how I worked that plug in there? We love it. Always work the plug in. You should be plugging the plugs. Yes, he knows what he's doing, Lucas.

All right. I'm working down my list of my. The things. These sort of more intro folks need to be aware of risks of like not trademarking versus trademarking. The LLC has the thousand dollar burden in New York or Sir California. Yeah, trademarking. Do you do it early? Do you wait? Well, you can't really register fully register a trademark until you've got at least two or three episodes up and running. So I think

it's something that you should have on your radar early on. And as. As you've got those few episodes and you know, you've already bought your microphones and, and figured out your workflows and things like that. Once you're sort of sure you're sticking with it. Yeah, I think that's the time to get the trademark in place so that you don't. Well, I should back up. It's important to Think about this

issue even when you're just choosing a title. Yeah. For the podcast, because you don't want to be stepping on somebody else's toes and you don't want to choose something that's so generic or descriptive that everybody and their brother is going to choose a similar title. But then you can, you can register it early on on a what we call an intent to use basis and come back and prove

you're using it. And that finalizes the registration. Or wait till you're in episode two or three in the can and published and then get it done. It is another one where there's a cost, so you have to kind of plan for it a little bit. In the sort of figuring out my legal budget, how much am I probably applying to Trademark vs. Incorporation or LLC vs. Contracts with my peers and participants? Well, you know, forming an llc, the government fees are relatively small,

usually under a couple of hundred doll. So it sort of depends on the lawyer. And are you using a lawyer or are you using one of these vending machine services? I'm not a big fan of them, but you know who I'm talking about. So the cost of forming an LLC ranges anywhere from about 500 to 15 or $2,000. Something in that range. The cost of doing a trademark registration is sort of similar numbers. The basic cost for a trademark in a single class.

Trademarks are broken up into different categories of goods and services. That would be $350 to the government. And then whatever you're paying, you could do it yourself if you got it figured out. But paying a lawyer is another, you know, another thousand or fifteen. You need to do a trademark search also. So that's an additional cost with a third party search service. And the thing with podcasts is that there are actually two

classes for those trademarks that come into play. So it sort of doubles the cost right there. So anywhere from 15 to $1800 to $3500 is the neighborhood for registering a trademark. But. But a lot easier than fighting over the name of your show or dealing with some fly by night podcaster who starts up another show and doesn't give it the energy and attention it needs. And now you've got a bad show that's reflecting poorly on your show. Yeah, it's a bit of the measure.

Once cut twice or slow is fast with a lot of these things, it sounds like. Yeah, it's true. If you think about podcasting as business first, we have to remember that every business is about taking risks. Right. You don't get Anywhere. If you're not taking some risks, you're putting money on the line, resources on the line, offers, products, episodes, whatever, and there's a lot of risk with that. Well, the legal

risks in this are actually the easy ones to fix. I mean, yeah, you have to throw a little money at them sometimes, but you can actually really minimize those risks by getting that structure in place and doing the trademark and making partnership and collaboration agreements and using contracts. That's not the same as the other kinds of risks that are a little less. Less concrete. I guess you

could say it's an investment. You definitely do have to invest in it. And if you're doing it for your business, not as the business, but for your business, these are costs of doing that business. Yeah. If the podcast is your business, if you're planning on generating revenue with ads or sponsorships or brand deals or things like that, I'd say it's even more important that you at least think about these things and have a roadmap. Can we talk about

that for a second? So when a podcaster starts having sponsorships, usually the sponsors are providing the contracts to us as podcasters. And I find myself, because I'm a lawyer's daughter, so I love to argue every point like he taught me well. Right? And then one of my best friends is a lawyer. So I don't have your brain, but I've got it in me to ask the right questions, I think. Of course. And I send back the contracts almost every time because

they have things that I can't possibly agree to. However, I think most people are just blindly signing these contracts because they're excited. Oh my gosh, my podcast is going to make a dollar. Right. And so I understand that that's an exciting time for podcasts, but very often you're saying this ad will live on my show for the rest of the life of cycle of the podcast. And guess

What? If you're 10 years in and you still have an add on from 10 years ago and someone's going back and listening to that show and you're still sending them customers and you're not getting paid for that, that's one thing for your own benefit. Then if you go to change RSS feeds or do something, there's all of these things in a contract where that may not be technically allowed.

So there's all these things I've seen in these contracts. I'd love to hear your thoughts on what you've seen and how podcasters should approach when a sponsor or anyone else who wants to do some kind of collaboration, deal with them, approaches them so that they get the most out of it. Well, first off, yeah, I mean, that's a great point. My first preference would be let the podcaster issue the contract, generate the document. You know, the first person to.

There's a theory about negotiation is that the first person to say a number typically loses in the negotiation. But this is one of those areas where you've already figured out the price. The dollars aren't the issue, it's the how broad are we going to go with this? What do they get and what are the deliverables? Those kinds of things. Yes. And the podcaster should start from a point of here's the minimum we're going to. This is what we're going to

do. And then if they ask for more, that positions you to ask for more money. Yes. Or for other better terms in some way or another. And in the advertising business, yeah, they're always going to ask for a sort of perpetual. The show can run, the thing's going to run forever, and we don't

have to make any change. You know, all those kinds of things. And the fact of it is, in the advertising business, advertisers are used to doing campaigns, and when the campaign is over, you stop and you make a new ad or whatever. And when you're dealing with professional actors, there are residuals that have to be paid you when. When they're reusing it beyond the first three months or six months

or whatever was contracted. So we as podcast creators should be thinking about those kinds of things as well and really limiting the initial draft of the contract to the campaign. Maybe it does live on forever. It's a little different with baked in advertising. In podcasts, it's sort of an evergreen medium. But if there's a chance you're gonna pull it out or you're gonna do some repurposing of the content, does the ad have to stay in there or does it have. Can you strip it out? What if you're

changing onto a different platform that wants to do dynamic inserted ads? There's all kinds of. So you really do need to anticipate those things. That's one of the areas where working with someone like me, at least once in a while, when you're confronted with something new that really gets you positioned for success. And. And, you know, drafting our own, starting with. Starting from our own forms is always a little easier to get what you want. Yeah. And not give

what you don't want to shape. Shaping the conversation from the get Go. Absolutely. I got some other fun ones for you. So, folks frequently use music clips from other shows. Oh, that opening lick of acdc, Back in Black for your opener of the show. That's right. I generally try to use the Beatles. Personally, I hear their content is really inexpensive or, you know, other. Other copyrighted materials. Like, where do you. What do you tell podcasters who are contemplating using

things? Or like. Like, don't shoot yourself in the foot here because you're going to get the takedowns or whatever it happens to be. This is one of those easy rules that everybody has a but for. Yeah. Okay. So the basic rule is this. If you didn't make it yourself, all original, don't use it unless you've got permission from the people who did make it. It's that simple. The buts that we hear is, well, but I'm only using 15 seconds or 30 seconds. That is not a. Not a variation.

It doesn't work that way. There's a. There is a defense called fair use. When you use a piece of music that you do in critical commentary or certain educational kinds of uses, things like that, and you're only using a little bit and there's no impact on the market for the original, and it somehow transforms it into something different, then it's

maybe fair use. So if you're doing criticism and commentary, maybe, but you don't get to use ACDC or Beatles or Beach Boys or anything like that as the opener for your show on every episode and expect to get away with it. You just don't. Same is true for other kinds of copyrighted material you want to read pages from. I just heard about a. It's actually a YouTube situation, but this person is reading every single chapter of a book in series. Every. Every day comes out with

a new chapter, and all it is is reading the book. Well, the author of the book isn't exactly happy about that. So we're talking about how do we. How do we get that taken down? And by the way, how much are they going to pay you for the license to the material they've done? And, yeah, all that. So books, poetry, I mean, technically, if you have movie posters in the background or artwork in the background of your video shot,

you're supposed to have clearance and permission to do that, too. But there's a little more flexibility. It's unlikely people sue over that picture that just happens to be hanging in the back wall of your office or your home. But if you're building a set, you probably don't want to put for sure. Someone else's art on there. I was gonna say, I own this IP and this ip. I'll move the Girl Scout cookies out of the background. The important question is

what kind of Girl Scout cookies are they? This is Samoa's, which I think of as the most well rounded diet of Girl Scout cookies. And this is my lunch today. So therefore, yes, it's a balanced diet. Yes, it's. It's four food groups. Chocolate cake, caramel, and it has coconut on it too. So there's coconut, right. Allison, don't. Your food heel self would hate my diet. So let's, let's move away from that. I would cut this out of the show if we were on food.

Well, you got to give it something to heal, right? There we go. Bring, bring me on to your show and tell me everything not to do based upon current dietary. I love it. I got another one, fun one for you because I'm sure you've had to advise folks in this space too. Podcasting has a lot of prognosticators, talking heads just with a lot of spoken medium. So things like defamation, libel, slander versus free speech and

the tension between the two. Where do you advise your, your clients on that front? Well, that's a hard one. You know, a lot of podcasts really are good because they're creating controversy and talking smack about people and things like that. You know, the rule for, for defamation libel in the case of podcasts would be if, look, if it's false and it causes an injury to their reputation, that's going to be a problem. So the answer is verify, verify,

verify, you know, fact check the stuff. If you've got a guest who comes on your show and says that so and so is a child molester, there better be a conviction in court before you publish that. You know, to verify that before you put that up on podcast feed, you as the host of the show can be liable for republishing someone else's remarks. What if you say alleged? Because now this is all we're hearing on the entertainment podcast.

They're saying, I've heard them say this. Our lawyers say we have to say allegedly. And so they say it because that makes. Takes them out of that. Is that true, though? Because I think it's more like this is arguable. There's a privilege in. And this is really more of a journalism thing. There is a privilege of people

to report on what's out there, what's being said. So if somebody is being accused of a crime or some kind of wrongdoing the reporter who says, well, there are allegations that this person is this, this and this and these are what they're saying has happened. You're not presenting it as fact, you're presenting it as this is what folks are. The fact is that people are saying it,

not the fact that it actually happened. Got it. And it, you know, it makes sense to then say, you know, this hasn't been proven in court yet and he's innocent until proven guilty. You know, you can sort of bend over backwards to make sure it's clear that no, nobody's accused saying it's a sure thing. It's what people are talking about. And then now you're reporting. So that's called the fair report privilege. Similarly, if things are said in court, they're privileged.

You can report on the fact that it was said so on the witness stand, so and so said this about the defendant or, or, or those kinds of things. So yeah, allegedly is good. Also, if you're expressing an opinion and it's genuinely an opinion and not a fact couched as opinion, you're entitled to your opinion whether it's right or not. If it's genuinely a genuinely held opinion, it's valid and protected. There's so many of these, I mean where we are with podcasting, Internet ip like the list goes on.

Where do you think of, how do you advise folks on. So like DMCA take Diane takedowns around their content for any number of reasons. Like we at deepcast had someone say can you take down this particular episode of somebody else's show? It actually turned out that it was an episode of the all in Pod, obviously a fairly popular podcast. Yeah. And it was because he. They had referenced him. Etc. Well, I was like I don't think this is actually grounds

for. And then he went back to them, got them to ask to, to amend the show and they re released the show and we processed the re release show. So where does DMC factor in there or just in general, how should I think about DMC as a podcast or whatever even means Digital Millennium Copyright Act. Yeah, well that. Okay, so I wanted to make, make sure we're talking about. DMCA is Digital Millennium Copyright Act. So it only deals with copyright issues.

It does not deal with that privacy or defamation or those kinds of other things of things. And that's why it didn't apply in the circumstance you just described. The only reason that the DMCA kicks in is if somebody is, if somebody is saying hey, they're using my stuff without my Permission. My copyrighted material without my permission. And there's a specific format and form for how

you request the takedown. And the provision of the DMCA that allows for this basically says if you are a host or a Internet service provider or a podcast hosting company and you receive one of these takedowns and you follow a protocol to take it down, you can't be sued for that infringement. Remember I said you can be sued for what somebody else publishes or what your user says. This is. That's the name. Same scenario. The hosting company can't be held liable for copyright infringement if,

upon receipt of a demand, they take it down. The next part of that process is you take it down and you notify the people who posted it and you give them an opportunity to explain why it should be put back up. For example, it isn't copyright infringement, it's fair use. Or I had permission or, you know, all those kinds of things. Things. And then you put it back up. And if the person who complained is still upset, then they can sue

the person who posted the stuff. Yeah. Remember a little thing that came out called Anchor? Oh, yeah. When Anchor first came out, someone took food, heels, podcast episodes, uploaded them to Anchor for free, and put McDonald's commercials on them. Can you slap in the face this. Vegan girl who's all about health and wellness? And so someone sent it to me, and I had to send a DMCA letter to them, and Anchor did immediately take it down. So kudos

to them for taking it down. But that was a scary time because we were like, how often is our content taken and repurposed and put other places? I found my content on YouTube, all kinds of places. So I would love your advice on. Yeah, like, how do we find out if our. Our content is being copied, taken, put in other places? All we see these days is People's Instagrams and TikToks videos being taken and repurposed and they're messaging people for money and all kinds of things.

So I'd love some thoughts and advice around that. Yeah, there's a couple of different layers to this. One is that, you know, look, we have to be. What's the word I'm looking for? Vigilant about it. We have to, you know, set up that Google programmed search to find your name and your title and those other kinds of things. And I get a report every day that somebody's using the phrase entertainment law update or my name firemark.

Fortunately, there's not that many firemarks out there in the world. And Most of them are associated with the fire insurance business, so it's pretty easy to see. So that's one aspect of it. And then when you see them, yeah, you have to play the whack a mole and knock them down and get rid of them.

When you mention Instagram and Facebook and TikTok and all of those, we have to be careful because the terms of use of those services allow for other users to take and mash up and do those kinds of things on that service. But when they cross over from one service to another, that's not always okay. So that's another component of this. And then the third thing is we have the. We live in an era of reaction videos, right. Where, you know, you maybe you do. A, like a silly trick

and people watch it or you play a music for the first time. And I just responded to the ACDC for the very first time because I'm 22 years old old and I didn't know what it was. Right. Yeah, those listen, listen and react videos or the one where, you know, she does the dance step and then everybody else tries to do this dance step and plugs it up and it's funny. And you know, that stuff may or may not fall within the fair use exception of or defense and copyright law. And you know,

YouTube for one, takes a very expansive view of that. And they basically say, well, if you're picture in picture and you're just raising your eyebrows, that's a reaction and that's criticism and commentary and it satisfies it. I'm not sure that's really the case. We don't see a lot of lawsuits about these things because lawsuits are expensive and the revenues involved in what you could recover are relatively small. But it does happen. So reaction

videos is sort of its own little category of fair use stuff. That'S out there right now being vigilant about it. The burden is really on you for the most part, unfortunately. Like, there is not a system that's scanning. I mean, there are software that can be used in different contexts, but like you, you have to do it well. I mean, if you're a big record company, YouTube has a nice content system that identifies things. But. But that. That was the other technology I was alluding to. Right, right.

You alluded to derivative works and transformative works. We happen to live in the era of the post ChatGPT era. There's all sorts of repurposing of folks content in. In that context. How do podcasters think about 11 labs potentially being used to voice clone or chatgpt with web search, repurposing my content, or the list goes on and on. Yeah. So we're really in the wildest frontier of the Wild west with this stuff right now. Yep. Yeah.

And it's really hard to answer these kinds of questions because the courts have yet to do anything specific about most of them. There was a recent case involving Westlaw's service, which is specific to lawyers, and some other company had come and knocked off using AI to consume basically all of Westlaw and then repurpose it, and they were held liable. The company was already bankrupt, but anyway, so that was deemed copyright infringement and not fair

use. But the AI companies are defending themselves, saying, hey, this is fair use. We're not actually copying the exact content. We're turning it into something new, transforming it. I'm not sure how that's going to go down with judges and jump juries, and I think we're five years probably, from getting definitive legal conclusions about this before, you know,

the Supreme Court can get to it and those kinds of things. Yeah. You mentioned 11 labs, and I want to address that one, too, because that's less about copyright than it is about. The sound of your voice, name, likeness, et cetera. Yeah. And we'll even see video being repurposed. Upload a photo, and we'll make a talking video of you. I think it's already sort of here. Oh, I see them all

the time, and they scare me to death. Right. So that's the thing is that, you know, if I can put words in your mouth, Allison, and say, and have you make a video that says, I eat at McDonald's twice a day, how does that reflect on your brand? Right. So that could be defamation, and it appears to be coming out of your own mouth. Right. So there are. And there's privacy

and commercial use of likenesses and all kinds of other concerns. And that's where we lawyers that do entertainment and media stuff are really thinking and. And trying to figure out the next game plan as we go forward. But unfortunately, it is still Wild west kind of stuff. Are there areas where you're suggesting to clients, hey, instead of freaking out in this case? Maybe. And maybe that's not the right word, but there could be marketing value here.

There could be. So. And you talked about businesses and risk. Right. So, like, sometimes you're like, this may be a case where I let it go because it seems to be a traffic driver, but flip side, be wary of. Yeah, I mean, look, that's a business decision everybody has to make for their own particular situation. I would think that even if you're not going to sue somebody over it or make a big legal stink about things, there might just be some value in getting public and saying,

look, this thing is out there. It's not me. I didn't say that. And maybe even sort of waving the flag for being credible and ethical about these guys where journalism ethics starts to come back into play. You know, just being a little public in your criticism of the folks that are doing it and you know, call them out on it, even if you're not going to sue them, hey, what you're doing is wrong. And if you, if you agree with me, don't buy

products from these people. That kind of messaging and yeah, I mean, we may see some legislation that deals with some of these things in the near future too, and I'd kind of like to see that happen. We do have an aizar who may or may not try to push things through that route, but who knows? Yeah. What's interesting is the federal government has a really hard time getting into. Right. Regulating the personality, privacy, what we call the dignity torts in law, because most of that

is state level stuff. And so Tennessee has an act that's in place right now. It might be named after Elvis, but anyway, it's a strong one on right of publicity and AI stuff. California has one also that is pretty strong as well. And we're going to see more states doing that and then it's this patchwork mishmash that we have to deal with. So again, a few years from now we'll have clarity on these things. In the meantime, we get to say yippee ki yay.

Do you think it's a statute or case law that gets us there? Well, legislation would be statute. Well, yeah, I mean, I think the case law is what will refine and identify where the boundaries of what the statutes can do. Yeah. So, you know, everything is, all of this is up against the first Amendment, free speech, free press kind of stuff. So that's where fair use comes in in copyright law and the boundaries of, of what the state can do to

regulate speech about a person. Yeah. So you, you alluded to things like where the journalist comes into play, where journalism comes into play. Yeah. Where's the line between journalists and podcasts these days and how I should like the affordance I should think about? I think more podcasters need to think of ourselves as journalists, even if we're not doing hard news. If you are telling people facts, a story about situations that have happened, whether it's

true crime. Or just interview. Like this interview here. As you are interviewing me and I'm telling the audience about the law, you're doing journalism, you're asking questions, and I think it's incumbent upon you to call me out if I say something that, you know, sounds wrong or, or asking me to clarify and, you know, do what reporters really do, even though you don't maybe think of yourself as a reporter first.

We should be putting that into the mix. The exception to that is if you're doing just pure storytelling, narrative fiction or scripted drama, those kinds of things, then you're not doing journalism and you don't need to worry about it as much. But you have other issues to worry about. You know, who wrote it, who owns the rights to the material, those kinds of things. Yeah. Your job sounds so fun. By the way, that's my aside. I almost went to law school and then did not. Beats the heck out of

representing insurance companies. There you go. There you go. I wanted to hit a different side of legal, which is monetization, because you obviously see all sorts of monetization opportunities through the contracts that you're facilitating. How do you see podcasting, the podcasting industry, evolving in terms of monetization and monetization opportunities? That's a great question. I think I'm. I think it's getting easier. I think we're on a path with the programmatic advertising and the AI

discovery of opportunity. It's going to be easier and easier to drop ads in where things are relevant to what they were just talking about on the podcast. And I think that's a really positive force. I think it's going to drive the value. Not the value, the price that advertisers pay for podcast ads downward maybe a little bit. It already is. Yeah. But on the other hand, it creates new opportunities and it opens up new inventory

within the shows. And so maybe that'll balance. Balance them, balance it out. Also. I think as demand goes up for that, that inventory, the prices will bounce back up as well as more brands start to realize how important podcasting is as an advertising medium. I hope they do. The CPM has just gone. When I started, it was about 25, and now it's at $7 for the. What the agencies are pitching. So I tell everyone, don't take those deals and let

the market balance out and come back up. Yeah, $7. Wow. I. I had heard it was down as low as 1819, but I didn't know it was that low. So, oh, yeah, I get pitched seven doll say, even though I have a back catalog of 10 years, I say, absolutely not, because that undervalues what I bring to the table, you know? So I tell other podcasters, please don't take those deals. Let's. Let's let it come back up. Yeah, I mean, the programmatic

stuff tends to pay a lot less. And on the other hand, it's. It's easy. Turnkey, push a button, and you're good to go. And so there's value there. The value, I think, is diminishing, though, because I don't think the listeners like it. Yeah, I think you're right. They just hit skip, skip, skip. I was doing it, and I quit. Okay. So, sorry, go ahead. Yeah, no, I. And it's interesting.

I know that there are some folks out there who are strategically doing their ads at an irregular length, you know, 41 seconds or 21, 22 seconds, so that if you skip, you're either still catching the tail end of the. The CTA or you're. You're missing part of the content. You go back and, you know, I. Don'T know if I love it or if I hate it. I'm like, brilliant, and I hate it. That. Well, that's everybody. It's gaming the system a little bit, and that,

you know, that's okay. People. People skip television ads, and that advertising marketplace is still robust. Good point. But I think, honestly, as monetization in general, I think there are other ways to monetize that may be better. Yeah, I'd love to hear those. Than ads and sponsorships. Well, for one, make and sell your own products and use your podcast as the brand ambassador that connects your audience and builds that affinity so that when they're in the market for something that you

offer, they're ready. Essentially, your podcast nurtures the community toward your products and services. And frankly, if you're doing a podcast and you can reach out to your audience from time to time and ask them, what's the. What's the issue? What's troubling you? How can I help you? Then you make products specifically that cater to them, and you're gonna see conversion rates that are much more favorable than you would get with other kinds of marketing and advertising.

So if you've got a course or an information product or you do services. I mean, I do podcasts, and I get people who say, I saw your show and I want to hire you to be my lawyer, you know? Yeah, for sure. So it can be the marketing arm of a larger business. I think that's really a Powerful method selling other people's products that way too. You know, it's, it's still advertising, but it's a little different than just, you know, selling Casper Mattresses. Yeah, I shouldn't name names, but there's

that. And then of course, affiliate stuff, you know, depends on your show. But maybe you do some brand deals or you do a deal where you're promoting a product and you do an unboxing on a show and, and you rave about it and you get a commission from your audience. Again, it depends on having a big audience. Nice thing about the sell your own stuff is you don't need nearly as big an audience. You got a thousand people or fewer. But if you're selling a hundred dollar product,

it adds up to real money. How do you feel about private feeds? I was thinking about this vis a vis, like newsletters. A lot of them used to be free, a big chunk of them. And then Beehive comes in and substack and monetize and you got your Madden Glacias who's like living off of his, his newsletter or many folks. Is there a comparable here within the world of podcasting with like the thousand true followers, et cetera, or. I think if you can get them on board and, and yes,

get them to pay. I think there's something to that. I mean, Patreon's been around for a while and there's a lot of podcasters that make their money that way. The direct subscription model, that, that paid feed, I think it's, it's great. I don't think we've seen enough adoption of it to make any conclusions yet. Yet. But I like the idea. I think you have to have a pretty big audience of people who are interested enough in your content that

some of them are going to be willing to pay. And so I think a freemium model where there are some episodes that are paid and some aren't so that the audience can still connect with you and find out what you're doing. Or you have, you know, like a premium feed that's different content than what you're doing regularly. Yeah, that's. That becomes your own product. Yeah, I was going to say Sam Harris. I listened to the free feed and then. But go and

subscribe to the Waking up app at the same time. So he is getting paid through some other medium for sure. Completely different sort of monetization. And it's probably only applicable to a very narrow slice of folks. But those who are contemplating selling that intellectual property later for other purposes. I know there's you know, Malcolm Gladwell, like, virtually every show out of their network is, can this become a Netflix show?

Right. And they think about it. I have a friend who produced a show with them, and he's like, really? This was a lost leader to get us a Netflix show or a prime show. Right. Who is that relevant to? And how do they think about their business differently if that is their goal? That's a great question. I'm not sure I know exactly. I mean, thinking about it differently in the sense of you're creating a pitch deck essentially with your episodes, or you're creating a proof of concept and

so you can maybe be a little. Yeah, it's about being intentional and disciplined about that and maybe not caring so much about the audience reaction to a single episode, but more, I mean, you still. As a proof of concept, you have to show that there's people interested in what you're doing. Yeah. I will say, in my experience is the deals between the networks and the production companies on the one side and the talent of these shows, the creators of these shows tend to really not be very

good for the creators of the shows. And so you want to be really careful about signing with a network or signing with a production company where they are saying their priority is going to be pitching it to the networks or trying to get a television show. If that's the goal, fantastic. I think they should be paying you,

not you paying them for that privilege. And I've negotiated a few deals where the creators were just sort of willing to accept what they were given, taking it on the cheek for the clout, for the opportunity to get the clout. And I'll tell you, it's one in a thousand. Thousand. Yeah. That actually go that way. So I have another interesting one for you, and then, Allison, I'll let you jump in. Pay to play on guest appearances. How do you feel about that, folks who are. Anyone can be

on my show. $30, or is that usually higher than 30? Whatever the number is, I'm making up arbitrarily. But, like, how do you feel about that? I have mixed feelings on that. Like the. The pay to play sort of format. But what are your thoughts? I also have strong feelings. Okay, there you go. They are somewhat misunderstood. Mixed, strong feelings. I think it's okay if that works for you and your business model is cool with it and your audience

is cool with it. And by that, I mean you have to tell the audience that this is what you're doing. You have to tell the audience that this guest paid for the opportunity to be in their ears because that's. You are endorsing that guest just as though you were endorsing a product. And the ftc, the Federal Trade Commission requires full disclosure. If there's a financial relationship between the host and the product they're talking about, in this case the guest and the guest's brand and products,

then you're supposed to disclose that. And the FTC hasn't come out and started addressing that in that way directly yet, but they will. And yeah, the dollar amounts are actually staggering. I don't know. There's this one nutritional supplement, nutrition blogger or not blogger, nutrition podcaster that makes 30 or $40,000 an episode from the guest coming on to promote a brand. And I don't know, as an audience member, I want to know that because it's gonna change

how I think about the brand. Right. You know, you just bought an hour long advertisement. Okay, cool. I'm gonna listen maybe with a more critical mind. Is that difference between journalists and running a long form advertisement that you're getting at the disclosure, making that clear. Right. I mean, if you were watching a television news news show and the, and the anchor person said, and now we're bringing you this story about United Airlines and United paid for us to,

to do this story. Now it's just an advertisement. You think about it differently. Right? Right, exactly. Yeah. Yeah. This is a story about the wonderful thing that the petroleum companies are doing. Brought to you by the petroleum companies. Right, exactly. Yeah. This is sort of forward looking. It's. I know it's challenging to look too far out in the future these days at the pace of just accelerationism in general, but biggest legal challenges you see for podcaster, say the next one,

three, five years. Are there things that are changing in the evolving landscape of the space? I don't know that it's so much a product of changing landscape. I think it's, you know, as time has gone on, there are a lot of shows that have been up and running and the, the hosts are drifting apart or the things. I think the biggest challenge is going to be the breakups, the pot divorces, as I call them. And that. That's been the case for a while.

The music stuff is sort of, it's always there, buzzing in the background and you get takedowns and things like that. But yeah, I think it's the, the relationship breakups, arguments over ownership, arguments over. Well, I'm no longer on the show, so you have to take down all the episodes I was on. Right. Your co host you did 500 episodes with a co host and now they. They're all supposed to go away or who. Who has access to the RSS feed and how do you get to the audience? You know, that's what

that podcast prenup I was talking about is all about. That strikes me, by the way, is like very human problems separate from technology, separate from evolving, you know, statute of case law. It is really just like this is happening with the maturation of this space, because it's inevitable that people drift. Yeah.

And honestly, if you really get down to it, 90% of what people are engaging with lawyers and suing about, someone's feelings got hurt or someone was indignant that how could they possibly do this or behave this way or whatever. Even in business, you know, even a simple breach of contract or whatever, sometimes the. It's the personalities that drive it and not. Not the actual legal issue or the, you know, yeah, there's a legal issue and you can choose to fight about it

or you can choose to, hey, let's work it out. Sadly, the lawyers come in when it's not a work it out situation, so. Yeah, that's true. The three of us are obviously. Well, actually, I was going to say domestic in the US right now. And I realize Allison's probably still in Mexico, so we're home next week. She'll be back soon. That being said, like we were. I'm at an undisclosed location. There you go. I can't tell from the background, but, you know, we were referring to three lettered agencies.

Ftc, fcc, you know, statue like dmca. There's also the wonderful world of podcasting outside of the United States and non English. Where do you advise folks on that front? Especially because I. People are looking to push to international audiences or promoting a different language or whatever happens to be. First off, we need to recognize that at least for the moment, the US is still the largest consuming single nation for

podcast content. That's shifting and evolving. And certainly the Latin American market, the Spanish language market, is really growing rapidly, and that's exciting to see and all that. But the good news is that most of the legal principles are fairly consistent nation to nation. Copyright law is subject of international treaties, so things are. Are basically treated the same. We have the fair

use defense which comes from our First Amendment. Not all countries respect that the same way others handle it more broadly or more specifically, you know, those kinds of things. Contract law, you know, American law is based on British common law going back a thousand years. So, you know, the reach of that was A lot broader than just the colonies in the U.S. you know, most of Africa and a lot of Asia and frankly,

most of Europe, all sort of followed the same fundamental principles of contract. It's, you know, meetings of the mind, basically. And if you. If you can put it down in writing and articulate and everybody agrees and you specify, hey, this is the. Where the courts will handle these kinds of issues under this body of law, you're good to go. As long as that body of law doesn't change things dramatically. And it doesn't. Customs and practices

in the advertising industry tend also to be fairly consistent. There are variations. So the good news is that from a legal standpoint, it isn't harder or different to do things in other countries, other than to tailor what you're doing and make sure you call it out if you're looking at a different country's laws. So you mentioned free speech, and I want to ask you about that because I think this is an important conversation.

And this is something I Learned in about 2021 when I got what I call called censored and what my lawyer called deplatformed, because there was a difference that I had to learn, and it was because I got censored by the software, or, excuse me, de platform by the software that I was using. It was a CRM to run my business because they didn't agree with what I had said about vitamin. The healing powers of vitamins and vegetables. I was at a very controversial time. You guys know what

time it was? 2020, 2021. The only V I talked about was vitamins and vegetables. I didn't talk about the other big V, but at that time they weren't having it. And so my entire CRM essentially shut me down. And I was like, this is a free speech issue. And my lawyer was like, well, you agreed to their terms of services, and as such, that means they have this right to take you down. I would love your

thoughts on this, Gordon. In terms of, like, we are very often building our houses, our businesses on rented land when it comes to, we're on Instagram, we're building businesses on Facebook, we're building businesses on CRMs that we don't actually own. Own. Is there still free speech on the RSS feed? Talk to me a little bit. Talk to us a little bit about that. Phenomenal question.

I want to dovetail it where I took one master's level class on law, Gordon, and contracts of adhesion is one of the things I walked away with. You walk into these platforms for the most Part, you can't redline it. It's click the terms of Use and continue or not. And oh, by the way, Apple's happens to be like 110 pages long. Yeah. Right. So maybe there's. That dovetails a little bit. I'm like, I'm forced to sign this thing to participate. Yeah. Yes. Well, but you have choice.

You do. It's true. You have the choice not to participate. So, you know when it's. You're driving to the concert and the parking lot attendant hands you the little stub and it says, this contract limits our liability. That's a contract of adhesion because there's no place else to park. Yep. And you're already there. Right. A little less so when you're signing up with a, with a CRM or an education management system or those kinds of things.

The fact is, the First Amendment, which is the foundation for principles of free speech and free press in the U.S. it says Congress shall make no law abridging these rights. It applies to the government, and it's by extension to the states and so on. But that doesn't mean that you can't make a contract with a private entity saying, I'm going to pay you for this. And they can say, as long as you. And we'll continue to render this service

to you as long as you. You abide by our terms of use. And here's the list of the terms of use. And if you violate them, then they can take whatever action they decide. So unfortunately, that is what's happened and still happening to a certain extent. If you adopt a point of view that the platform doesn't like, they will not so politely tell you, hey, go find another platform, because we don't like what you're doing. And sometimes it's a question of whether you can find that other platform.

The good news with podcasts is that all we're doing really is an rss. We're storing a data file, and the RSS feed is just a document that says, here's where you find this episode. Right. So most of the hosting companies aren't too overly concerned, I guess, about the content of those data files. Although I have had this conversation with the folks at some of the rss. I should say podcast content Data hopes hosting services about, in particular, white supremacist kinds of content and very

anti one direction or another kind of content. And they do reserve the right to, as you called it, de platform. They have the right to say, hey, we don't want to host your content. It's bad for our business overall. Other people are going to boycott us. Right. And we've recently seen how effective boycotts of electric vehicle companies can be.

A certain electrical vehicle. If enough people said I'm no longer going to host my show on blank hosting service because we don't like the fact that they're also giving voice to the Nazis, well then the hosting service has a problem and they're going to want to take action. And it's their prerogative as a business to do that. And that's why we have these terms of use. So not First Amendment, not a free speech violation. It's a question of the contract. And there are

some out there that are much more. What's the word? Egregious, open and magnanimous. I mean look, the porn industry has driven so much technology, technological change in the Internet stuff, you know. Yeah. They've had to figure some workarounds. A lot of the major credit card processing companies want nothing to do with porn and yet it is the third largest industry in the world or something like that. It's crazy how much money porn is generating transacts business in. So you

can find someone to host your content if you try hard enough. I think that's the bottom line. Also on the de platforming and free speech. I was also thinking and going back to international all yeah, we'll pick. I'm just going to call it so Elon Musk advocates particular positions in different countries, shows up on podcasts or news media outlets in specific countries. In some cases those shows are hosted domestically in the US So by a a domestic provider. Here we have.

I don't know whether Section 230 is relevant or not, but AFD and advocation or advocacy for a very right leaning organization within Germany. Right. And you know they are very anti Nazi in terms of what you're allowed to do in the media in Germany or South Korea is an increasingly podcast savvy market. But they also have a lot different rules around free speech as well.

As do most eastern Asian countries. Do you end up. Have you seen situations where like the hosts have had to capitulate or like it goes host level or does it go to the show and say you can't be distributed this in my country, I don't really care who's doing the distribution. There have been situations like that. I think it tends to be more episode by episode driven where with a couple of exceptions of real authoritarian ruled countries mostly it's oh you featured

this topic on your show. We're not going to let that episode run here. And then the hosting provider, or sometimes just the Internet provider in that country is expected to put up a filter that prevents it from being distributed to IP addresses allocated to that country or something like that. And as the creator, host of a show, you can, and you could tell Libsyn or someone, listen, I don't want this show to be accessible in country X, Georgia, the nation of Georgia or something like that.

And they may charge you extra to do that workaround. But it's possible, it is doable and things can be delisted off of Google in certain countries and the EU has been doing a lot of that actually. And YouTube, when a particular brand is not following local, the EU's local rules, then they will sort of say, well okay, Google, take them off, don't, don't show us their stuff. Sort of a governmental level boycott, I. Guess you could call that for sure.

You mentioned the section 230 and I just want to since clarify that maybe for me, yeah, section 230 is really the last surviving component of a law called the Communications Decency Act. And most of that law was ruled unconstitutional because it was not content neutral about the content that it was trying to restrict. It was aimed at child pornography really, but it would have caught so much other stuff in the net that it

was ruled unconstitutional. But this section 230 has survived and it basically provides a kind of immunity for the hosting services, the Internet companies that they don't have to take it down just because somebody's claiming that they were defamed and they can't be sued theoretically just because they carried a piece of content that was defamatory or included certain kinds

of content that they don't like. And, and the hosting companies also can't be held liable if they do choose to filter or restrict certain kinds of content. So that goes both ways. That's how Libsyn or Blueberry or all the, any of those can, can just say we're not going to host no Nazi content. And those, those content creators just are not able to do much about it. You'll find someplace else. Are there any areas of the law that you're tracking closely that

has impacts on podcasting? Are there state trial court data like something's happening at federal that you're like, man, this could have a big impact on this space. And I'm totally watching it closely. Well, it's the AI. I mean that's really the stuff we're watching carefully right now. The state of the law on the consumption side is I should say the ingestion side, you know, all these AIs went out and slurped up the whole Internet basically to load themselves with information

and data. There are lots of legal questions about whether what that, what they did and how they did that was legal. And those, those lawsuits are pending. That's what I was saying. We're going to have a few years before we have answers to that. But on the other side, the using the AI to make your content, and this is an aspect we should have talked about earlier, is when the AI generates the content, you can't claim ownership even if you're the one who

crafted the prompt. There's no copyright entitled because it doesn't have a human author. Copyright law requires a human authorship. That's interesting. Yeah. So that means that if you make this amazing piece of something, whether it's music or a recreation for your film or your video or whatever, somebody else could come along and just copy it and you wouldn't have any recourse. Wow. Again, except maybe to go public and say, hey, I made that first and that wasn't cool.

You know, so there's that. The other aspect of this is that the AI tools do sometimes they call it hallucinating. They literally hallucinate. They use their imagination. Right. Make up stuff that means that you could end up having it make up a set of facts that isn't true. And in fact, there was a case involving an AI wrote an article about a person who shared the same first and last name, different middle name, but first and last name, roughly the same age,

with a person who had been convicted of fraud several times. And so the AI made the mistake and conflated the two. Wow. And here was this guy who I think he was applying for jobs or something, and this public blog thing showed up and ended up costing him these opportunities and harming his reputation. And you know, if you were creating a podcast and you used the AI to write your content or to do some of the research, you better fact check it and

make sure, because you can't trust it. Yeah. And you could be to earlier point, you could be held responsible for that in some form or another. Yeah, yeah. So think of it as your assistant and not the thing that's going to do all the work for you, because that might really end up biting you. Right. Yeah. I've often likened the AI tools to use it like you use Photoshop. It's not the camera, it's the post production tool, or it's the development tool. That's a great Way to put it. And.

And photographers were all up in arms about Photoshop when it first came out, but now they all use it and love it. Being really appreciative of the time we have here. I have, like, three short questions for you, Gordon. I'll try to give long answers. Yes, that's what I was hoping for. How is podcasting working really well right now? I mean, you've been at it for 17 plus years. How is it working really well now versus 2005 versus 2000 2017, versus, like,

there's eras. Yeah. Well, first of all, it's gotten so much easier to make a podcast. I mean, if you'd. If I had. You asked me that question earlier, you know, and I said, it's easy to make a podcast and hard to make a good one. In 2005, 6, 7, it was not easy to make a podcast. It was all hard. Right. So that's the. I would say that's the biggest advance is that it's gotten dead simple even to

make of what is essentially a television show. Right here we are doing video, and it's being recorded, and all that stuff is just being handled on the back end by technology. That's great. In the middle, in between, you know, to say, eight years ago, it was pretty easy already, and we were talking a lot about quality of the audio, and, you know, the gear

was still a focus. And I think nowadays we're not even worried about the gear so much because there's so much that can be fixed electronically, you know, programmatically, systematically. So it's working in that more people are able to get their messages out more effectively and wider and achieve the kind of impact and influence and income that they're after. And I think that's really, really exciting. The flip side of that, of course, is that there's a lot of crap out there.

You know, what was it back in the. In the. In the day, they were saying that when, with the advent of cable and then later the satellites, like DirecTV, they said, well, you're gonna have 500 channels and. Yeah, and 490 of them are absolute dreck. And there's a bit of that in the podcasting world, too. So it's harder to find the nuggets of gold.

They're there, but they're harder to find. And I would advocate that the industry sort of has a responsibility, and it behooves them to do a better job at surfacing the good content. Amongst that. That's my podcast, Hill to die on, Alison. Yes. That really is one of the big. I mean, because it's an open format and it's decentralized. There's no one place that all podcasts have to live that makes it really hard

for discoverability. I think that's why YouTube is doing so well with podcasts and everything else these days, is that they've got an algorithm that just doesn't quit and you log on and you watch a few things, and now it starts sending you stuff that you want to watch or listen to. And that's the real advantage. There's the podcast industry needs to figure this out. Discoverability and surfacing. The good stuff.

Absolutely. For sure. And it's interesting, by the way, that some of these same platforms that have their music components don't leverage the same learnings on their podcast business. Yeah, I listen to a certain music listening app. It knows my preferences and will autoplay new music after it's done. You know, behaviors. For whatever reason, there seems to be silos between the technology divisions of these teams and parts. Partially it's incentives, I imagine,

associated with revenue. But that's. That's interesting. I don't use that particular platform. I know which one you're referring to. Yeah. But yeah, I'm sure they could if they wanted to. And maybe they're still figuring a few things out. Matter of resourcing and business decisions, I'm sure. Yeah. Okay. So you are clearly optimistic about certain things with

where we are today. Are there areas that you think are, like, they're still broken and you're saying, like, man, this is the same crap we were talking about five years ago, and it hasn't changed. Why hasn't changed yet? 15 years. The music stuff. How can I use a piece of music in my podcast without having to jump through four hoops and stopping

to shop at three different places? It boggles my mind that the music industry haven't gotten their act together in enough of a way that I could use that Beatles tune, 12 seconds of it at the beginning or whatever, and just pay a small amount of money for that license for maybe depending on the number of listeners or who knows what. It should be so much easier than it is. They're just not interested.

And it's a shame. You and I alluded to earlier that YouTube has a piece of software that runs against major label publisher data and identifies that and they have an opportunity to take it down. In some case, it just automatically does. Do you think YouTube is well positioned in this beyond the rest? Because they could say, I recognize that, and I will Attribute the playback to almost as if it's radio. And there's sort of ASCAP BMI Circuit 1920 related law behind

this thing. Yeah, I mean, ASCAP BMI is not as much of a player in this as podcasters often are misled to believe. But YouTube, what YouTube is great at is, well, a. They're great at making money right there. That's very true. They place ads and that's how they do their thing. And so it's very easy for them to see, say. Well, we've identified that your show, your video, your episode, whatever, includes this piece of music and that belongs to

these guys over here. So we're going to take some of the revenue that is generated from your episode and we're going to give it to those owners. And those owners are happy for that because they don't have to do anything to realize that revenue if they had to issue a license for each different piece. And so. And that's why it's a problem. Some of the music centric platforms could do the same thing. They've got the same ability and technology and I think they

are sort of doing that. But yeah, for the rest of us, the ones who host on the traditional podcast hosting services, there is no single source of revenue that can just funnel it off and give it to the rights. And maybe that's what needs to change too. Maybe there needs to be a clearinghouse middleman kind of an operation that just says, okay, this is the music money and we're going to divvy it

up according to some formula. That's what ASCAP and BMI have been doing in the radio business and the restaurant music business and elevator music business, all these businesses for years. But they don't get to do it in the podcasting space because it's a different medium. So that's why I say different medium, different rules. Unfortunately, for sure. Ali, this sounds like the music clearinghouse can be your next business. He's just

giving you a great, great idea for one. Don't give me a new business, I'll start it tomorrow. It's a problem. Well, and what's interesting is over the these last 15, 16 years is there have been a few startups that got into this space and hit so much of a wall with the music industry. The record labels have to get on board, the music publishing industry, the songwriters, the artists, everybody has to get on board. And frankly, they don't like each other

enough to want to cooperate. Yeah, for sure. Okay, so where are we with the AI music generation that we may or may not be using for a show I might be producing. I think it's a great opportunity. You're just not going to get that opening lick of ACDC or the Beatles or whatever it is. Yeah, I mean, you know, we've been recommending using public domain, not public domain. Well, sometimes public domain or Creative Commons or royalty free.

Royalty free. You know, license it once, use it forever kind of music. And I think the AI is even taking the wind out of those sails. But what if the AI generated something similar to the ACDC or something like that, but different? Well, now we're getting into questions like how long is a piece of string? Yeah. How similar or how different? Because if it's substantially similar, then that's copyright infringement. Well, there's lawsuits all the time,

Gordon. I'm sure you follow them. Musicians sewing other saying, this song would not exist without this beat. And sometimes I listen and I go, absolutely, this is the same. And sometimes I listen, I go, I don't hear it at all. So. So who's the arbiter of truth when it comes to these things? The courts. 12 people sitting over on that side of the courtroom. The courts. Very interesting. Yeah, yeah. So it's very expensive to do those lawsuits. You're talking about millions of dollars. And so

you don't see them as often as they could. But not a week goes by that I don't hear an email or a call from somebody who says they used my stuff in this TV show or this artist generated something that's just like mine. And I don't do that kind of case. Those kind of cases, I sometimes refer them out, but as often as not, it's just not practical to think anybody's going to file a lawsuit over those things. And I agree

with you. So, Gordon, what you don't know is that I started the first 10 years of my career in digital music, so also played with fair use. I happen to be at Amazon and advocated for the ability to, when you purchased your music, have it automatically download to your cloud storage locker instead of of locally. And then you could reproduce your copy because it

was your cloud storage locker. I was looking at sort of like VHS context of the 80s, and I. Remember all the legal issues that cropped up and the complaints and the finger pointing about all that. It was a lot of fun. I had the Amazon GC that I was working with on this little project as well as, I don't know, 15 other lawyers, because we also had to factor in Europe and

Japan and how they thought about These too. But one of the things I was thinking about, your point around the clearinghouses, a lot of this comes around incentives. And some of the companies you were talking about in the clearinghouses just ended up getting bought out. So, like YouTube bought couple and Spotify bought one and it was, how do we, within our very narrow or very large silo, in the case of YouTube, how do we make sure this works better

for us as as opposed to better for the ecosystem? It always strikes me that, like, podcasting is always ecosystem centric, as like rising tide floats all boats. But the BMs in this space are driven by sort of standard capitalistic endeavors. And like, we're happy if it works within our silo and we don't care if it doesn't work in anybody else's side. Well, well.

And realistically, when we're dealing with podcasts and even frankly the Spotify and those kind of folks, I mean, Spotify kind of had to twist the industry's arm a lot just to sort of be able to do what they're doing. And it hurt for everybody until they figured out a solution. But when you're talking about fractions of fractions of fractions of pennies, it's not real inspiring to tell a record label, okay, we need you to, to lawyer this. We need your legal team to focus on this.

YouTube sort of figured it out and said, here, we're going to do it this way. And that's working. But if you had to get every podcast hosting company on board to do that for every country in the world, it would be, I mean, it is just a massive challenge. Challenge, yeah. Maybe we'll get there someday. I hope so. Is that similar correlation you were getting to earlier with like, programmatic ad buys get you reach at a very effective, efficient way, but it doesn't necessarily get you the big fat

insertion orders. Right. And so you get parallel curve distribution. And then advertisers are happy to get long run of network because it gets them the fill rates that they're looking for, which drives down the ecpms on some subset of them while the other. Big dogs listen to you throwing jargon around. Yeah, sorry, Gordon. I was an ad tech guy, dirty ad tech guy for four years, so I'm very familiar with the space on that. It's like my 18th job.

Nobody's perfect. Yeah, I appreciate it. Says the lawyer right on this call. People in glass houses. And that's very, very true. All right, I got the final question for us. What is one piece of legal advice every podcaster should hear before launching. You got a lot of advice, but I'm forcing you to pick your top bullet in your stack rank list. Lawyers hate this. Get it in writing. Get it in writing. And that, you know, follows from all the other things. Track it like a.

Treat it like a business. Work out your relationship before their disputes. And yeah, get all those things in writing. Make sure you know when, if you're doing an ad deal or a brand deal, not just how much they're gonna get, you're gonna get paid, but when and what you're gonna do if you don't. And those kinds of things. It's so common that folks are owed tens or hundreds of thousands of dollars and then waiting indefinitely

to collect and stuff like that. So if you've got something in writing that says, hey, I was supposed to get paid on April 10th. 10th. Now you got some teeth to things. Allison. This is my key takeaway for the episode that I'm going to turn into the visual social clip is Gordon, get it in writing. And it's going to repeat, right? Yeah, exactly. With his hand pointing. For those who can't see, Gordon loved having you. For those who also

can't see, he's. He's writing a contract down on paper right now. Gordon, wait, let's get this on video. Can check chat, GPT write it. Oh, and she's making the face. I love it. I wish it wouldn't. I don't want to get into this. And Gordon, I won't tell you the room I'm sitting in right now. My wife actually runs a legal tech company. She's sitting two offices away. You brought up

Westlaw earlier. It's called Trellis. They do state trial court data aggregation, machine learning, judge analytics, etc, and they have a motion generation software. It's early days. So you're like, I saw your face. And I was like, I'm sitting by these guys who are doing these things. Right. Yeah. No, I mean, look, you know, look, I'm a lawyer. I make my living drawing up contracts for people and if, if they can bypass me and do it using an AI, it's not great for my business. Although frankly,

I'd rather work on the more complicated ones than the simple. So where the AI does a nice job is with the really simple stuff. But there's still some, you know, human level thinking and anticipating things and, and frankly, knowing who my client is and, and thinking about their particular use case. It's really hard for the lay person anyway to prompt the AI properly to

address those things. So we're not there yet. Eventually the AIs will be running the world and and we'll all be fighting to to survive to kill the robot that they sent back in time to. My favorite movie, Terminator 2 to Terminator terminate. There you go. Gordon was great having you on Sound Strategy. Where can folks find you? So the name is Gordon Firemark. That's F I R E M A R K. Firemark.com is the law firm. Gordonfiremark.com is sort

of everything else that I have out there. I've got courses and information products available for the DIY folks and forms and templates you can that's all clearinghouse there on Instagram, full name Gordon Firemark and most other social media. It's G. Firemark. He's everywhere. And you have no excuse not to find him. Is the moral of the story. Yes. Treat it like a business. Beautiful bald head. You gotta watch me. There you go. Awesome. Thanks, Gordon.

Thanks for having me. Thanks, Gordon. It's been great. Appreciate your time. Thanks for tuning in to SoundStrategy with me, Lucas Dicke. Find everything from Today's episode at SoundStrategy, folks. Transcripts, takeaways, key quotes and links to all of your favorite podcast players. I hope you enjoyed our deep dive into the wild world of podcasting today. Check our show notes for all guest details and contact info. Sound Strategy

wouldn't exist without these amazing guests. So a huge thanks to everyone who share their wisdom with us. And most importantly, thank you, my podcast obsessed friends, for listening. Come back next week for another edition of Sound Strategy with Lucas Dickey.