If you've ever listened to any of my podcasts before, you have seen our guest

then because he has been around for quite some time. And every time I get

the chance, I will talk to him and ask him. He is quite

far, far and away my favorite podcast lawyer. In fact, he is

the podcast lawyer. We are chatting with Gordon Firemark, the

podcast lawyer. You can learn more about him at gordanfiremark.com,

checking out his easy legal for podcasters course, giving

you all the things you need in order to protect your podcast, to protect

your brand. And he's also got

podcastlawforms.com, a great place for

legal templates to help you get your stuff underway. Gordon, thank you for

joining me, and great to see you again, sir. Great to see you, Matthew. It's

always a pleasure. I'm glad to be here. So, of course, you know, again, I've

I've heard this, but for those who've never heard before, tell us how did you

get your start into podcasting? Not just on the law side, but generally, like,

when did you first pick up the microphone? I got involved

in in theater audio, at a very young age.

I I I mean, I I got hooked into the theater world when I was,

like, five years old, six years old, kindergartner. And, by the time I was in

junior high, I was running the lights and sound at school variety shows and things

like that. Did that all through high school and into college as a professional sound

engineer in in live theater environments. And it

was only after college when I shifted into radio, TV, and film

as my major, that I thought about going to law school.

And so this has been with me for a really long time. And

then the podcasting thing came about when I started my

own practice, and I was looking for ways to market. Pretty much as soon as

podcasting became a thing, I,

I geeked out on it. What so I

mean alright. So you've been doing, you know, podcast

since, what, like, 02/2009, '2 thousand '10 ish? I was first asked

as a guest on some shows in about 02/2006, I think it was.

And and when that guy who we ended up doing a show together for

about a year, and then, eventually, his boss made him stop

because he was moonlighting according to the boss. And,

so I by that time, I was hooked, and I decided I would go out

and find a cohost and get started. And then my wife and I well, my

wife had the baby. I'd I was there for the fun part. But

but, so that, you know, hung things up for a

few months. But, yeah, it was mid two thousand nine when we launched. That's, what,

sixteen years ago now. So at the at the time, you

were thinking about how to market your well, it was a step

ostensibly entertainment law firm, but then you decided,

well, there's a lot going on in the podcasting world. Maybe I should have a

little bit more of a core focus in this space in particular. Well, I

still practice a broad base of entertainment law. It just happens that podcasters

are are you know, they're my people, so I like to work with them. And

and, I've targeted a lot of my marketing in that direction. The fact of it

is the show, the that original show from sixteen years ago, still going strong.

It's a monthly entertainment law roundup kind of a

show we do call entertainment law update, real original name.

And, Yeah. We've been doing it consistently on a

monthly basis since 02/2009. So we're at recording a hundred and seventy

seventh episode next week or the later this week, actually. So Wow.

Congratulations. Feels pretty good. So as someone who's been

in this space for quite some time, have seen podcasters from all levels, right, just

starting out to veterans who have been around for, I guess, I can now say

decades. You know, what are some of the most

common legal stumbles that

podcasters are making or are bound to make,

if they're not putting too much thought into this process? Well, I mean, the first

thing is is that that thing you just said, not putting too much

thought into this or or waiting too long to start getting themselves

organized from a legal standpoint. But, you know, from there, it's

it's just not taking taking it seriously as

a kind of a business thing. You know, if you're if you're podcasting as the

business, then you need to think about setting it up as a business with the

corporation or an LLC or something like that, and and

having good contracts and those kinds of things in place, especially if you're

working with a cohost or something like that. Having what I call a

podcast prenup, kinda articulates the

relationship and and addresses not only what happens when things are going well, but

also what if it doesn't. You know? How do we how do we go our

separate ways in a way that everybody's comfortable with? And,

and so that prenup becomes a cohost agreement or collaboration

agreement or joint venture, whatever, you know, can take different forms.

The other area of areas, of course, are intellectual

property. You know, you you,

neglect copyright law at your peril, both as a creator where you

own the copyrights and if you don't do what you can to protect them, you

may find others using your content. But also when you use people's music

or clips in your show, you better know the rules and do it right, or

or you're gonna have, pushback there. And I'd say

the most important legal thing to

do for most podcasters is, look at your title, make

sure it's a distinctive brand name that you can protect with a

trademark. And registering a trademark is a an important step

in making sure you don't end up at one of the 12 shows with the

same title in the marketplace. Or worst case, you are copying

somebody who already has that trademark. You've launched the show, and now you gotta go

back and redo a bunch of stuff or undo a bunch of things. Yeah. Do

a search before you choose your title if you're if you can so that, you

know, you're not stepping on somebody's toes. How do you know if if when you

search for a name, whether or not that name is protected

versus just being common or popular?

Well, what can be protected under the law is

distinctive. So it has to be it has to reach a a

certain threshold of distinctiveness. So if I call my show the biz

the the basket weaving podcast, then there can be 12 basket

weaving podcasts, and nobody's gonna have a claim because it's

purely descriptive of what you get. Now over time,

I mentioned my own show, Entertainment Law Update. You know, I've been doing it for

sixteen years. It has acquired some distinctiveness and in the sense

that there's a secondary meaning. When when people go looking

for my show, they know they're looking for my show, Entertainment Law Update.

So that is now protectable and registerable as a trademark.

But, how do you know well, first of all, it doesn't

matter whether it's registered or not. If you're not the first in the marketplace with

that title, think about choosing a different title. Don't be

following in other people's footsteps with with your title because that's

leads to confusion, and that's what trademark law is really about protecting against.

At what point does a you know,

it makes sense. You're a business. Right? You're a brand. There's a lot more things

that you have to think about and protect, and, you know, you've got clients

and sponsors and all that. But if I'm just

average Joe, average Jane, thinking about starting up a podcast,

how much do I really have to worry about this? Well, there

I would say there's different kinds of podcasters. There's Average Joe or

Jane doing a podcast as sort of a hobby, a side thing that they're just

have doing for the fun of it. And, you know, they wanna maybe make have

a little impact and influence, but is it really a a business?

Probably not. They don't need to necessarily worry too much, certainly not

about the business structure, the LLC, or the corporation.

Trademark stuff, I think you still don't want someone else coming along and

using the same name. That's gonna be,

it's gonna dilute the value of what you build over time. So

that, I think, is still pretty important. Then there are those who are doing it

as a business, and they need to think very hard about this, about protecting

what they're building structurally, in

terms of ownership as well as the the title and things like that and and

having really good strong contracts with the folks that they do business with.

And then there's the third group who are podcasting as an

adjunct or as a branch of their business, oftentimes a marketing arm

for the business. Let's say you run a law practice and you wanna

attract more folks to your practice. You hold yourself out, put yourself out there

as an expert. Maybe they don't need the LLC, but

they still need to protect the brand and and think about

not saying the wrong thing, hurting someone's reputation, defamation

kinds of things, or infringing on copyright. So I think

everybody needs to be mindful of you

not using content they don't own. I guess that's the that's probably the most

common complaint I see. Yeah. And that's that's always one of the common

questions that you see in a lot of support groups and support chats

around podcasting. You know? Can I use this song? Can I use this

music? And, you know, I think ever since I met you, my

my test for that has been very simple. Do you own it? Nope. Then no.

Right, like, it's it's just that simple. So for those who

are really this is more serious. They've got plans for

monetization, for building a brand off of it, for making a

ton of money off of it, or it's or it's building upon an existing

brand, which has other assets and things that are worth protecting.

You have the, you know, the podcasters easy

legal for podcasters. What is that all about? What is that

system like? What will people expect to get if they sign up for this program?

Well, so when I started practicing as an as a as a podcast lawyer

specifically, I I realized that I was doing these things for folks

who could afford and wanted to hire lawyers to do these things, forming the

LLC or the corporation, doing the trademarks, the copyrights, the the

contracts, getting it all getting it all, squared away

for them, the done for you kind of a model. And then I realized there's

a lot of folks who want to get this stuff done or need to get

this stuff done, but don't have the resources or the inclination

to hire me to do it for them. So I wanted to create something that

was a little more accessible and and would allow them to do it

themselves with guidance and

instruction and forms and templates from me. So the Easy Legal for

Broadcasters program is a is a four part course that

teaches these things along with literally

step by step how to instructional videos on how to form that

LLC, how to register that trademark, that copyright, what to put in where in

the contract. And we give you all the contracts and templates and things that

you need to to get your business up and running, as

smoothly and quickly as possible. So it is what it says. Easy

legal for podcasters. And it is in fact just that. Now, again,

you're not someone now we're talking to someone again. Back to that average Joe, average

Dane. You have these podcast law forms. What are some of

the common ones that someone who's hearing this is like, ugh, I don't think I

need all that, but there's definitely probably a few things that are probably helpful. What

are some of those real helpful forms and resources that law forms

would be good for that, you know, just starting out podcast or that indie podcast?

Well, I think that podcast prenup is definitely one. If you're starting a show with

other people, you wanna establish the nature of that relationship. And

it's, you know, it's fundamentally a partnership agreement of some sort, but it

outlines the specifics of who's responsible for doing what, those kinds

of things. If you are, working with guests, I offer a

free guest release agreement that is essentially getting

written consent for the recording and the editing and the publication

of the episode without which, you may find yourself with a

guest who later comes back and says, I don't like that. Take it down. And

you're kinda kind of in a rock and hard place situation,

especially if you have sponsors that are paying to have that episode up, and now

you've got a issue there. So, obviously, you don't wanna

alienate good friends who are guests, but at the same time, you put a lot

of effort into making a show, so you wanna keep that up.

I will admit I'm one of those people who definitely started using the podcast

guest disclaimer form. Not that I've ever had a problem with it, but

it's one of those places, and this is true of many facets of

the law, where it's not a problem until it is.

And something I've always said to my kids to an annoying level, and if

you ask them, they'll, you know, repeat it back to you with kind of that

groan, snarky tone. Right? It's better to have it and not need it than need

it and not have it. And I imagine that is a cornerstone of a lot

of what you do. It it's also I agree a %, but I also

think that when you present your

your face to the guest or whoever as a business, hey. I'm,

you know, I'm serious about this. There's this thing I need you to look at

and sign or click the box or whatever it is. Now they

take it seriously too, and they will remember. You know?

Maybe maybe among those people who've never been a problem,

someone once got a little irritated and started thinking, I should get them to take

it out, but I signed that thing. So you never heard anything more

about it. Mission accomplished. Yeah. Well, that's that's the lucky

way to go. One place that I'm sure you've been discussing a lot, we we've

only kinda, you know, dipped around the the edges a little bit, but I'm curious

what you're seeing. What what's happening with AI and

podcasting? More so on the on the

folks who are using AI to completely generate or

create their content, what are some pitfalls that they're gonna need to be watching out

for? What are some things on the horizon that you think are coming down the

pipeline for them? Great, great question, and it is definitely the

hot topic these days. The the AI is a bit of a double edged sword.

You know? It's a great tool. It's very useful, very helpful. In

order to do that, of course, it has had to go out and slurp up

a lot of content from the Internet, and and that it's being all the AI

companies are being sued over this ingestion and

training based on existing copyrighted works, and these

lawsuits are, mostly just in the beginning stages. One of them

recently came down, in a verdict that said not a

verdict, a court ruling that said what the AI

company had done ingesting this particular content was not fair

use, So that means it is copyright infringement. And now we move on

to how much they have to pay that phase. So that's one

side of it. But the other side, the the creator side is we

use these tools somewhat at our peril because, a, they

don't always get it right. So if you use the AI to write a script

about a particular topic, it could be filled with some

errors and the mistakes can be troublesome, especially if you're talking about a

particular there was a situation where someone used an AI to write an article about

a person and the AI kind of assumed

a different person was the person we were talking about. And that person

had a criminal record, and the person we were really talking about didn't, and it

became the whole defamation thing. The publisher of the show who put

that out was in the crosshairs of the lawsuit

over false information that hurt this person's reputation.

So that's apparel. Another side of this is

that the copyright office has generally held that material

that's generated by artificial intelligence isn't entitled

to copyright protection. So if you're using it to craft the whole episode,

you're not gonna be able to claim ownership of that episode

and prevent other people from copying it.

That's interesting. Yeah. And the theory is that copyright is about protecting

human authorship. So no human author and this is true

of photographs that have been taken by

there's a there was a monkey selfie case a number of years ago. There was

a case involving an elephant that painted using a paintbrush it held

in its trunk. And, again, the Copyright Office has consistently said, nope. Those don't get

copyright. They don't they're not protected. Now just recently,

like in the last week or two, there was a case where the copyright

office did grant copyright to an AI generated work

because the author had done so much additional prompting

to craft the work to be just what he wanted. And,

the work is called a single slice of American cheese or it's a just a

visual artwork. But if you wanna go look it up, it it's actually kind of

a fun thing to look at. But that's a very specific use case with

a a very, deliberate effort to

prove what could be done. So Interesting. So I

I wanna go back real quickly to right. We've talked a lot about, you know,

as far as how you can protect

yourself from stealing other people's content, taking music, taking

show titles. But, right, as an indie podcaster, we don't really

contemplate too much about protecting our own work, our own

craft. Are there situations or have you seen a

situation where some big network or big show starts to

dabble with an independent podcaster's material and

that podcaster had some sort of recourse that they should take? Well,

there have been cases where, podcast actually,

networks have, have ended up carrying a

podcast that wasn't supposed to be on that network. I'm not gonna name

names, but, and, you know, it was pretty easy to get it removed

from the network. They don't want the trouble, and and they'll just take it down.

There's this mechanism, the DMCA, Digital Millennium Copyright Act, that

allows for takedowns. When there's infringing work,

the owner of that work can just notify the hosting company or

the network or whatever and say, hey. That's infringing my stuff. Take it

down. You have to follow a particular procedure and form,

for sending that notice. But then the company, in order to avoid being

sued itself, will take it down right away and just

basically let's say, okay. If you think that's still valid and should be up

there, you guys go fight it out and let us know. And and that's you

know, we've all seen a YouTube video that we were linked to that wasn't there

anymore or something like that. That that's the DMCA takedown. So it's actually

a relatively, what's the word, painless and

easy process to to get material taken

down in this day and age of the web. Now if there's been a lot

of profit generated from it, there may be a reason to actually go and sue

the the infringers and things like that, but it does happen.

Fortunately, well, or maybe it's unfortunate,

podcasts aren't necessarily a a ripe target for this kind of stuff.

I mean, I guess there are some shows that have such a big audience that

they're you know, people wanna use their stuff. I've

I couldn't imagine clips of some of those top shows out there being

repurposed and and rebroadcast and things like that. And, in fact,

I was just telling you before we started, there's a recent case in

the copyright claims board involving

a podcast that was doing a critique of this particular

online influencer and her lawyer who were going after people.

And, of course, when they used a clip from the from that influencer's

content and that lawyer's content, they then sued the

podcast, and the podcasters just just won last week, a

finding that what they were doing was fair use. And that's that

defense to copyright infringement that's meant for

education and criticism and commentary kinds of material.

So there is a way. And I guess that does lead

to the other big issue, which is, right, if you are

using somebody else's stuff, right, you're using a song, you're using

clips, what whatever it is. Typically, what is it gonna look like as the

podcast? Or what are you going to experience? Is it going to be

you know, are you gonna get subpoena to a lawsuit? Are you just gonna get

a takedown? Are you just getting an email? Like, what is the what what is

the evolution of of trouble gonna look like for

you? Well, there are some law firms out there that have made a

business of going after folks that infringe on these sort of

smallish scales. And, you know, they

they come at you with a threat of a what I what I would call

a nuisance lawsuit. You know, pay us a few hundred or a few thousand dollars,

and we won't sue you. And, you know, it's easier to pay

it than it is to fight it. So you might see that. Most often, it's

gonna be that DMCA takedown. And, you know, it's at best, it's

an embarrassment if your show goes live on Monday

and it's down on Tuesday or or Wednesday or even months later. That

episode missing from your feed kind of leaves a gaping

hole, at least in some shows. So that

embarrassment and if you then push to get it put back up because

you think it was legal, then you get into the

these claims in the copyright claims board or or going to,

full grown federal court over these kinds of things. It does happen, but,

fortunately, not that often. Gotcha.

And I guess the the big thing here is that even if

you are I don't wanna say even if you're in the

right, but, typically, no matter

what, this experience is going to be painful for you even if you're

right. Is that true? Like, if you're facing takedown

notices, if somebody is claiming you're using their property incorrectly

or, you know, a lot of people like to say, but it's fair use. Right?

Like, fair use maybe, but it's still gonna

be painful. Yeah. Yeah. So,

painful yeah. I mean, tell me choose your pain, I guess.

Having your episode taken down and just living with it is is a kind of

pain, and it's sort of an embarrassment I was was talking about. Fighting it is

a painful process. It takes a long time. It takes a lot of back and

forth and hiring people like me to help you and represent you in these

cases. And, yeah, I mean, I've I've I've never met

anybody who's been a party in a lawsuit who is enjoying the process.

Fair use is an interesting thing because it is a defense in copyright

infringement. So if you're gonna if you have to say, but it's fair

use, chances are someone's already threatening or suing

you. And, you know, that's just

by then, you you're experiencing some of that pain already, and I would caution

against it. If if what you're doing is real critic like movie

criticism or music criticism or teaching real education kinds

of stuff, then maybe there's an argument that fair use is is the way to

go with what you're doing. I would say, you know,

invest in a small a short consultation with someone like me to,

make sure you're on the right path. Alright. That

that is very fair. And, yeah, again, it's you know, if if the

question you have to ask yourself is if you wanna use that piece of music

in your episode and you believe that you have this

fair use defense, will the cost

of hiring lawyers, going to courts, dealing with all this

stuff at the end of the day, was it did it

improve your show by that much? Right? Like, was this battle worth it? Was your

was your content so much better because you include that little music clip,

or is it really just a giant headache for you? You know, I would say

nine out of 10 times, it's not worth it. It's a big headache and or

or big expense one way or the other, and it's better just to, you know,

avoid you know, take the path of least resistance and and avoid

using the thing. If you are doing something where you have to use a clip

of the music to talk about the fact that the artist did this and

was was exposed to that. You know? What a great either what a great or

what a terrible person the artist is, those kinds of things. You know?

The newsier, the better, I guess. And there are some situations where I'd

say go ahead. And some shows where

it's their their method of doing things. So I

think they've done their legwork and figured out how

to carve out those niches and do it right. As a reminder, we

are chatting with Gordon Firemark. He is the podcast

lawyer. You can get more about him at gordanfiremark.com.

You can also check out his easy legal for podcasters

program and his podcast law forms. Great resources

for those of you who are looking for ways to protect your

shows, protect your properties, without having to go, you

know, too crazy on spending money for

legal defenses and legal assistance. Gordon has been doing this for

many, many years. I've known many, many, many podcasters who have

taken advantage of his resources, present company included, and those who have

worked with him, and you're getting a great product and a great service. So

cannot encourage you to check him out enough. Gordon, before we let you

go, we have questions we like to ask every podcast. So the first one is,

is there a place in podcasting in general where you'd like to see improvement

from distribution, production, creation,

even from consumption? You know, something about podcasts, you were just like, god, I wish

we did this better. Well, I think discoverability is the big gap

in podcasting. It's just, you know, if I listen to a show

that is about a particular topic or that has a particular I

probably would like to hear other shows about it. And, you know, as an

example of folks that are doing it really well, YouTube

and their algorithm is brilliant at this. And, yeah, you you can we can get

into the debate of whether what YouTube is calling podcasting is podcasting,

but they're doing a good job of feeding you more stuff that they think you're

gonna like. And the podcast community, they're just the mechanism

isn't there. I think that's something that could be developed.

I don't know. Maybe it's more like a good reads where you you self

curate by explaining what you like and what you don't like about that. I don't

know. There's there's there's options. That's one. And the other area would

be monetization with

micropayments or crypto or something, and I know there are some folks working on

it. I think that needs to be built out bigger and

better and, frankly, just easier to do for both consumers

and creators. Couldn't agree with you more there. What

about is there any tech on your wish list, whether something that's out there that

you just haven't bought yourself or something that you're like, god. Somebody needs to make

this piece of hardware or software that would make my podcasting life a lot

easier. I, you know, I haven't identified

a major major I mean, I've got I've

spent a lot of money on the studio and and equipment, and I'm using a

good mic I I wish I had a, this the

what is it? The Shure SM seven, but I'm pretty happy with my

Heil PR 40 here.

Beyond that, no. I mean, I I I'm sure there are things that would make

it easier for those less technically inclined

to create a podcast quickly and easily and maybe even publish it.

There are yeah. I mean, I think some kind of a

maybe a back end software that would take a live stream

and automatically convert it and turn it into a a

podcast episode or something like that. But I think most of the tools are

getting pretty good. The the AI editing assists are are getting

I know for podcast editors, they don't like to hear that part. But, they're

getting pretty good at identifying the stuff that needs to

go. So Well, and as someone who's been in the

space since, you know, February, it's it's certainly gotten a lot

better since we first started. Right. And,

lastly, are there any podcasts on your playlist that are must listen

tos, whether new episode comes out, you're gonna stop and check it out, or you're

just you're not gonna let that episode go by without checking it out?

You know, I I listen to a lot of business podcasts and and and marketing

oriented stuff. I'm not a big entertainment content

consumer. So most of what I listen to is, yeah,

about how to how to do better in business, how to how to get more

clients, get more traction with things and so on. So my one of my

favorites is a a guy named Colin Boyd who is a coach and

teacher of of public speaking and speaking to

sell, basically. And his show is called

The Expert Edge with Colin Boyd. He's an Australian gentleman, a

client, and a friend as well. And, his show is

is must have weekly listening. I also like Amy

Porterfield's online marketing made easy show. Although, I just heard

she's changing it up and calling it the Amy Porterfield show starting in March.

So Well, wonder if she got it with a trademark. I doubt

it. I think she's just pivoting the

the the focus of things a bit. You are probably correct. Once again, we have

been chatting with the incredible Gordon Firemark, the podcast

lawyer. You can learn more about him and all of his services at

gordonfiremark.com, including the easy legal for

podcasters program, his podcast law forms, and, yes, he's a

podcaster. Check out the Legit Podcast Pro podcast for

some quick two minute, three minute tips, every week from this

wonderful gentleman, Gordon. It's great to see you. Great to chat with you. Thanks for

being here. Thank you. It's been great being here. Appreciate it.