In the last 10 years podcasts have become an integral part of our content consuming culture. No subject is off limits, but the true crime podcast genre may have been the gateway podcast for many. A good true crime podcast is like a train wreck – we can’t look away – or in this case, we can’t stop listening. Later, we chat with friends about the details – who done it, and the how and why.
A true crime podcast, in its original form, is a nonfictional audio series about one or more crimes. Many true crime podcasts focus on murder. Serial may be the most famous and one of the first. Other popular true crime podcasts are My Favorite Murder, Criminal, Crime Junkie, and That’s Why We Drink. Some true crime podcasts have morphed into shows on such streaming services as Hulu and Netflix. The comedy-drama Hulu series Only Murders in the Building relates to the fictional escapades of three strangers who start a true crime podcast about a murder in their affluent Manhattan apartment building. A Rolling Stone reviewer characterized this series as “that rare and wonderful thing: the parody that also offers a great example of the genuine article.”
At times, we’ve all been engaged by the genuine article – a true crime podcast. Like almost every business, intellectual property is important for podcasters. Where are the intersections of IP and true crime podcasts?
The podcast name is the flagship trademark for the entertainment services rendered under that mark. If your client is doing a podcast, it needs to first select a podcast name that is available and then should seek federal registration for that mark, not only for the ongoing entertainment podcast services but also for ancillary merchandise. The same goes for any graphic logo mark for the podcast, and even (in the best cases) the podcast icon your client uses at the Apple store or on a phone screen to access the podcast.
Copyright is created automatically when an original work of authorship is fixed in a tangible medium (i.e., recorded for broadcast). Copyright protects the expression of ideas, and is available to protect any original content created by your client (or created for your client). The key here is ownership. A podcaster usually needs help. Most “helpers” in this regard are not likely to be employees, so it is critical that your podcasting client obtain any and all copyright rights to content creation by these helpers – in writing! This includes contributions by audio engineers, assistant producers, musicians, etc. Everyone.
Sometimes, using third-party content (like an audio or music clip) might be artistically necessary for a podcast episode. In that case, your client must secure permission from that third-party content owner to do so. This is done by obtaining a license to use such material. When that content includes vocal contributions of an individual (like an interview), that person’s permission should be obtained as well – in the form of an appearance release (again, get it in writing).
Copyright registration may be sought for original content, but copyright rights exist regardless of registration. For a podcast episode, they exist as soon as it is recorded.
Besides content and brand, what’s the most important intangible thing a podcaster might have? An audience. This could be quantified in the form of an email distribution list. In the case of a podcast, the audience may be defined in the form of an RSS (really simple syndication) feed. An RSS feed is how the podcast gets from your client’s uploaded audio file through a distribution platform like Spotify and out to the listening audience. Your client needs to control its RSS feed, as this may be quite valuable. Think of it like a customer list – a valuable intangible asset akin to a trade secret. It has value from not being generally known – value that someone, someday, might pay your client to own or access.