July 20, 2022

Brands and Podcasters Legal Rights with Gordon Firemark

Podcasting can feel like the wild wild west where things are unregulated. But are they really? Find out from legal expert Gordon Firemark how brands and podcasters should be protecting themselves from lawsuits.


Recently, some very strange product companies have reached out to try podcast ads. It got me thinking about the legal side of podcast advertising and if there was one. We don't deal with it, so I invited Gordon Firemark to the podcast to share his expertise on the subject.

 

"I sometimes talk about the podcast prenup. People (brands) working on the show with us should know what they get, what they own, and what they're not entitled to. It's protecting our intellectual product."

 

Gordon and I discuss important topics like:

  1. What happens when a brand uses a host's ad as an endorsement on their website, social media, and more without their consent?
  2. What should be included in an advertising agreement to safeguard the brand and podcast?
  3. Why brands should be aware of brand safety and host compliance before forming a relationship.
  4. Can the government regulate what a host can advertise on their podcast?

 

Plus so much more.

 

To learn more about what Gordon does and how he can help with podcast legal issues, visit his website: https://firemark.com/. You can also visit https://www.gordonfiremark.com/.

 

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Transcript

This transcript it edited.

[00:00:14] Heather Osgood: Hello, and welcome to the Podcast Advertising Playbook. I'm your host, Heather Osgood. I'm excited about today's episode because, as you know, if you have listened to the show for a bit, we would love to dig into podcast advertising and interview everyone in that space. But today's guest is just a little bit different.

[00:00:36] Heather Osgood: I would like to welcome Gordon Firemark to the show. Gordon is an attorney and the CEO of Firemark Enterprises, and welcome to the show. 

[00:00:44] Gordon Firemark: Hi, Heather, thanks for having me. 

[00:00:46] Heather Osgood: And the reason our conversation is gonna be so different today, Gordon, is because this is the first time I've had an attorney on my show. I'm just really excited to dig into some of the questions.

[00:00:57] Heather Osgood: So, why don't we get started by having you just [00:01:00] tell us a little bit about yourself and how you ended up in this podcast space?

[00:01:03] Gordon Firemark: We provide do-it-yourself education, tools, and legal services for folks who need help with the entertainment, media, and intellectual property industry.

[00:01:22] Gordon Firemark: I come to this about as honestly as you can. As a little kid, I got really excited about theater. I began working as a sound technician and live theater in my teens and through college and into my law practice. When I was in college, studying radio, TV, and film, the teacher discovered an aptitude for legal, regulatory, and that kind of stuff. And suggested that I think about going to law school; I laughed her out of the room at the time. And then the idea sank in, especially after I didn't get into film school but law school.

[00:01:57] Heather Osgood: That's ironic. 

[00:01:58] Gordon Firemark: Right? Yeah. So she was right. And I've told her so since then. And so, for the last 30 years, I've been practicing in the entertainment and media law field. And because I had that background with sound and production and all those kinds of things. So when I started looking for ways to market my practice, I did the email newsletter before email newsletters were cool. I did blogs before blogs were cool. And I discovered podcasting really in the early days first as a listener. And then I thought, well, that would be an interesting way to take this newsletter and make it fun and media-friendly.

[00:02:33] Gordon Firemark: So I did that. And then, I looked for resources to support my entertainment and law knowledge and realized that there just weren't any. So I sat down, and wrote a book called the Podcaster, Blog, And New Media Producer's Legal Survival Guide. And you write a book, you become an expert, whether you like it or not.

[00:02:55] Gordon Firemark: So I've become the go-to person for questions about these media laws and entertainment laws that come up specifically in the podcast and new media space.

[00:03:06] Heather Osgood: Excellent. Excellent. All of us in the business have realized that at least I have for myself, that I don't usually think about needing an attorney until I need an attorney.

[00:03:18] Heather Osgood: And then I'm like, oh gosh, wouldn't it be great if I had thought about this ahead of time. So, the fact that you are creating resources for people so they can get everything taken care of correctly from the get-go is so valuable. And when I think about digging into the advertising and the podcast space and everything that's going on.

[00:03:41] Heather Osgood: We hear that we're in the wild wild west of podcast ads all the time. And I do find that to be the case. Mainly because it seems like we'll be going down this path, and everyone's doing this kind of set of things. And then all of a sudden it's, oh wait, no, we're not gonna do that anymore.

[00:03:57] Heather Osgood: We decided that's not the way to do it. Let's do it this way. [00:04:00] Things just change a lot. From a legal perspective, specifically the podcasters and advertiser relationships, what do people often miss? What are they not considering? 

[00:04:22] Gordon Firemark: The most common mistake that folks on both sides of that equation may, you know, let's face it, the podcasters and the advertisers are essentially opposite sides of the negotiating table. What often gets overlooked or just not handled well is the definition of terms.

[00:04:39] Gordon Firemark: I had a situation with a podcaster who had made a deal with an advertiser to sponsor the show. The emails that made up the contract said, "We will sponsor your show at a thousand dollars per podcast." A year after the podcaster, my client, had been charging this client's credit card a thousand bucks for every episode that came out (50 episodes), the client said, "Wait a minute, you overcharged me $49,000. I thought I was sponsoring a whole podcast for a thousand dollars." And the podcast was, "No, I meant each time the podcast comes out." And so had they clarified and used more precise language. Of course, they wouldn't have had this dispute, which ended with the credit card company charging back $49,000 out of the podcaster's account.

[00:05:34] Gordon Firemark: And they are still battling it out with damage to people's credit, etc. It's a simple question of just defining a term and adequately documenting it into a contract written by someone who thinks about these issues. It would have saved a lot of trouble rather than just relying on the modern equivalent; the email handshake deal would've made a big difference. 

[00:06:00] Heather Osgood: Oh my gosh. And that poor podcaster, they were probably like, yay. I just made $50,000 this year. And then suddenly they're like, oh wait, no, it was a thousand. 

[00:06:11] Gordon Firemark: You gotta feel pretty bad for the guy whose credit card got hit for 50 grand when he wasn't expecting it. A valid reason for their stomach being in knots.

[00:06:22] Heather Osgood: Yeah, although I don't know if I would not have noticed my card had been charged $49,000 for 12 months.

[00:06:30] Gordon Firemark: It definitely left the "buyer beware" on that side. I agree. Absolutely. 

[00:06:34] Heather Osgood: Yeah, for sure. But no, I think I totally agree with you and what I find.

[00:06:38] Heather Osgood: So fascinating. And I know that we have folks in the industry working on this, but many of the terms we use are also highly confusing. So you mentioned, in this example, a thousand dollars per podcast, which can mean many different things, right? So are we talking about a show? Are we talking about an episode? Are we talking about downloads? Are we talking about impressions? All of these things are very different, and it is important to ensure that you get all of those things in writing and that the advertiser understands what they can expect to receive.

[00:07:19] Heather Osgood: And I think, especially around the numbers. There's a lot of confusion about downloads and impressions because of dynamic ad insertion. And because the download has been the basis of what we've all looked to for many years.

[00:07:38] Heather Osgood: And now, suddenly, with dynamic ad insertion, We're looking at impressions instead of downloads. What's a way that a podcaster and an advertiser can get just really clear on the terms they're using in an agreement and what is actually being delivered. 

[00:07:55] Gordon Firemark: Well, I think that the contract should define the terms carefully, and most of the time, the lawyers will write out the definition or explain what is going to be considered the thing, and then give it the shorthand, the nickname "podcast" or "episode" or something like that. And then that's how you do it. 

[00:08:19] Gordon Firemark: I'm not usually partial to contracts with a whole section of definitions, but it can be valuable when you're in an industry where a particular kind of terminology gets used that there is no confusion about that.

[00:08:33] Gordon Firemark: But the key is if you see a term and don't know what it means. If you can't find it in the contract document, ask the question for it to be clarified and written into the record. There's no other solution to that. 

[00:08:45] Heather Osgood: The other important term I see is cancellation terms.

[00:08:54] Heather Osgood: With podcasters particularly, when an advertiser signs an annual contract, they're like, "Yes, they're in for a year. They can't go anywhere." And I'm like, "No, there's a cancellation clause saying it's typically 30 days. So with 30 days' notice, they could cancel the entire contract.

[00:09:15] Heather Osgood: The other one that I find interesting is the first ride of refusal. Most of the time, the contract will outline exclusivity because of the nature of host-read ads. So if you're running an ad for a meal delivery company, you're not gonna wanna talk about Blue Apron and Hello Fresh in the same breath.

[00:09:37] Heather Osgood: So there's that exclusivity. And then, most of the time, the advertiser wants to have the first ride of refusal, right? You come to them and say, "Hey, you know, Blue Apron wants to advertise. I know Hello Fresh just finished advertising. Are you gonna advertise again? Or should I go over and talk to Blue Apron?"

[00:09:54] Heather Osgood: Those are really important and should be addressed. What are your thoughts on those?

[00:10:00] Gordon Firemark: I agree with that again; it's a question of defining things. I'm not a big fan of the right of first refusal clauses, depending on how they're written. Often they're actually a right of the last refusal, which isn't fair because it can hold things up while you're trying to make a deal with somebody new. So you end up not really getting the value of the original contract. If you've got two months of negotiating before the next time starts and those kinds of things. So that's a little bit of an issue there. But I agree. And the exclusivity, you don't want Coke and Pepsi advertised in the same, certainly not on the same segment of a show. In the television industry, which is long established in how they do advertising, the same goes; we generally don't see ads for competing brands in the ad break. 

[00:10:48] Gordon Firemark: With a podcast. We don't really have an ad break. We usually have one mid-roll break if we're gonna do it. And so yeah, we have to be clear about how exclusive we are. Of course, not all contracts have to have that cancellation term.

[00:11:09] Gordon Firemark: If everybody's willing to do it, we're gonna advertise again, and brand awareness advertising is different than promotional campaign advertising where, you know, if Hello Fresh wants to advertise on your show and as long as your numbers don't dip dramatically, so they're not getting what they thought they were paying for.

[00:11:27] Gordon Firemark: You could bind them to a year-long contract. And they become a seasoned sponsor or something like that. But, but yeah, I mean, it all, again, comes down to definitions and articulating; what do we mean by a year-long? What do we mean by exclusive? What do we mean by writing the first refusal?

[00:11:45] Gordon Firemark: And just making sure you understand it. Unfortunately, these are legal phrases with legal consequences. So it isn't always a do-it-yourself project to answer these questions.

[00:11:57] Heather Osgood: Right, right. Absolutely. Absolutely. Totally agree.[00:12:00] Okay. So now I'm curious who owns the ad, and I'll give you an example.

[00:12:07] Heather Osgood: So we had an advertiser, a direct company we were working with. Obviously, we're working with these host-read endorsement ads, and the advertiser was like, "Hey, this guy just endorsed my product. This is amazing. I'm gonna throw this out all over the place."

[00:12:27] Heather Osgood: So he took that ad that the podcaster had created. He shared it all over, you know, social media. But then he went a step further, used the endorsement, and put the podcast host's face all over everything.

[00:12:47] Heather Osgood: And I felt like the advertiser had crossed a line. But again, nothing was precisely defined about what the advertiser could or couldn't do. Now, with branded podcast episodes, we'll usually talk about who will own that, whether the advertiser gets rights to it, and whether they can use it in different places. Still, we don't typically discuss who owns the ad just for a standard ad.

[00:13:17] Heather Osgood: What is your perspective on that?

[00:13:19] Gordon Firemark: Well, we don't need to discuss it because the law has obvious answers. The rule is that the author of the recording owns the recording. So the podcaster is the owner in the scenario you laid out. Now the advertiser may have written the copy that is now embodied in that recording.

[00:13:39] Gordon Firemark: So there could be some disagreement. I think the advertiser did cross the line. The contract was for the scope of advertising on the show. The other stuff should have been negotiated separately or could have been in the contract.

[00:13:56] Gordon Firemark: "Hey, we get to use the recording for this long and transcribe it. We can use your name and likeness and all those kinds of things. But the dollars should have reflected the additional rights that would've been granted had they been appropriately negotiated. So I wouldn't have hesitated as a lawyer to write a cease and desist to that advertiser.

[00:14:20] Heather Osgood: Okay. Okay. That's great to know. And I did think that was the case, but it's nice to have someone with knowledge confirm that the person creating and posting the content is the owner. 

[00:14:33] Gordon Firemark: In copyright law, authorship is ownership unless there's an employer/employee relationship, in which case the employer is considered the author in the first place, or if there's a special written contract that uses specific language to articulate that, no, in fact, the company that's hiring or paying for the work is gonna own it. But other than that, the owner is the person or company who creates the work. Any other transfers would need to be done in writing.

[00:15:03] Heather Osgood: Okay. And so, do you think that there are certain things that podcasters should be doing to protect the content that they create?

[00:15:11] Heather Osgood: At one time, people were repurposing other podcasts and posting them on Anchor and then getting the ad money. People were doing that with Joe Rogan's show, but what should a podcaster be doing to protect their content?

[00:15:32] Gordon Firemark: The good news is there isn't anything that's legally required to have the protection of copyright law to prevent or give you recourse if somebody does those sort of shady things. The definitions and clarity, etc., should be specified in the advertising agreement when you're doing ad deals. But in copyright law, no, there's nothing required to do to protect yourself.

[00:16:09] Gordon Firemark: It's not a bad idea to register the copyrights with the United States Library of Congress, the copyright office, because that gives you access to the courts. You have to register before you file a lawsuit. But if you register it early, within three months after the first publication of work, you can get your attorney's fees paid by the other side; if you win. You can get an award of statutory damages without having to prove how much you've lost due to that bozo, posting it on Anchor. If you encounter somebody doing those things and reposting your material online, you can use the Digital Millennium Copyright Act. The DMCA takedown procedure. We've all seen a link to a video, and you go there, and YouTube says that video's no longer available. That's because somebody did that. The owner of the material said, "Hey, that's mine; they're using it without my permission; take it down." And to protect itself, the hosting company has to take it down. So that's the first line of defense when you find out someone's doing it, but then call a lawyer or file a lawsuit to protect yourself.

[00:17:17] Gordon Firemark: Podcasters and brands ought to be aware that if somebody comes along and adopts the same or similar brand or title for their show, there are trademark rights involved. Generally, trademarks are very narrow in scope until you register at the federal level or sometimes even internationally.

[00:17:41] Gordon Firemark: So, if you have a distinctive brand for your show, I recommend registering it as early as possible. This is important for brands advertising on a particular show and don't want to be tarred by the brush of some other show with the same or similar title that shares a message contrary to your company's culture and philosophy. For example, you could have two shows with the same title, one of which is right down the middle for your audience, and the other is maybe all about porn and sexual abuse. Brands don't wanna be associated with that. Right. But if users see the title of the show listed on a website or something and find the wrong one, that's going to leave a bad taste in people's mouths. As a podcaster, you want to be careful to preserve and protect your brand so that your advertisers don't end up being disparaged by an association that isn't comfortable for them. 

[00:18:55] Heather Osgood: Right, right. I'm so glad you brought that up.

That was actually gonna be my next question. Having started several businesses myself, one of the challenges with naming a company is finding a name that works. Everything is taken. But with podcasts, you could have 10 shows with the same name. True Crime is especially bad. People don't seem to pay any attention to podcasts that already exist.

[00:19:44] Heather Osgood: And then they start shows with the same name, which doesn't seem to bother anybody. And I suppose, as you had mentioned, it's because that name hasn't been trademarked. And I guess if you really come up with something that is creative or something that is very closely aligned with your brand, it is important to trademark that.

[00:20:03] Heather Osgood: So someone can't come and start a podcast with the same name. 

[00:20:07] Gordon Firemark: Yeah, I'm an evangelist for the idea that you need to choose a distinctive title when you start and register the trademark to protect it as early as possible. Some budget is always a factor, of course. But you want to get into that and do it so that you don't encounter the situation of having 10 other shows with the same or very similar title.

[00:20:27] Gordon Firemark: I think when you're choosing the title, the first thing you should do is check the directories and make sure there are no other shows with that same title. I think that's sort of basic business sense. Podcasters come in not always thinking of it as business, right? 

[00:20:41] Heather Osgood: That's the real problem right there. They don't think of it as being a business.

[00:20:45] Gordon Firemark: I represent a lot of podcasters on the registered and not registered side of trademarks. And when there's registration, we're very successful at getting the others to change, take down, and stop doing what they're doing.

[00:21:03] Gordon Firemark: But even when they're not registered, there is some recourse. There is some basis for the idea that the first to arrive gets to keep it. Yeah. So I write cease and desist letters. I don't like to be the shark who hits them over the head with things. Still, when it's necessary if somebody's not cooperating and not playing by the rules, we'll do it to make 'em stop.

[00:21:24] Gordon Firemark: I have one client who was very lucky to get the registration for her name, which is, I'll say it's distinctive, but it's not that distinctive. If 40 other people have come up with the same or very similar title, maybe it's not as distinctive as we think. And trademark doesn't protect descriptive terms. To be protected at all, it has to be distinctive, not descriptive, or generic. My own show title is a great example. But before, when we started, we called the show Entertainment Law Update. It describes what we do. Now, because we've been doing it for so long, a little over 13 years ago, we have acquired the necessary distinctiveness to hold a trademark registration. If somebody starts their show with our title, we're gonna win. But, it would've been better to choose something that has no connection to entertainment law and come up with a clever, unique twist on things.

[00:22:50] Gordon Firemark: So being distinctive is always good for brands and, Yeah, that's my advice there. Yeah. 

[00:22:56] Heather Osgood: Yeah. Perfect. So let's shift gears and talk about it from the advertiser's perspective. Do you think that there are certain things that advertisers need to be aware of when they're going into a podcast campaign? Other than brand safety. What should advertisers think about from a legal perspective when getting into a relationship with a podcaster? 

[00:23:32] Gordon Firemark: Well, the good news is it's not that complicated of a relationship.

[00:23:35] Gordon Firemark: The podcaster has some inventory, spots in the show to sell, and the advertiser wants that inventory to get its message to the audience. So I think the advertiser's primary concern is, will we reach that audience the way we expect to? One of the things that advertisers should ask the podcast is, are you doing things by the numbers, by the book?

[00:24:01] Gordon Firemark: Are you getting your guests to give you some kind of a release telling you, yes, it's okay to use my recording and of my voice in any way you want, etc. Unfortunately, I've seen a guest on a show later comes back and says, "I'm no longer happy with that. I want you to take it down."

[00:24:20] Gordon Firemark:  Well, the advertiser had paid for a certain amount of money to have that message in that show as a host-read. In this case, the ad will be in that show forever. Well, if the episode's not there after two or three months, the advertiser isn't getting what they paid for. It may not seem like a big deal. Still, if it's reoccurring, that's a red flag that maybe the show is doing something that's ticking off the guests and possibly the audience too. 

[00:24:50] Gordon Firemark: So again, you get into that affiliation with somebody, make sure you want to be in business with them. So you are doing a little due diligence on the front end and listening to a couple of show episodes.

[00:25:00] Gordon Firemark: Find out if it's on-brand. But then also, find out are they doing things by the numbers or are they a seat of the pants wild west kind of an approach to things. Which may be on brand, but then you go in knowing there's that risk that maybe the episodes aren't there, as long as you'd like. Less of a problem with the programmatic and dynamic ads because if it's gone, you're not paying for it.

[00:25:23] Heather Osgood: Right. Yeah. Yeah. And I, I mean, I do think that that's mean we talk a lot about with dynamic ad insertion, is that you do have, I think, a lot more control. So from an advertiser perspective, if that host does something you're not pleased with, you could instantly have them pull your ads. And also, you're only running for a short period.

[00:25:43] Heather Osgood: Whereas with embedded ads, you know, maybe two years ago, when your ad was inserted, you liked that show, and you liked the guest. And I know I have had experiences where I've been listening to a business show. I loved it. And then suddenly, the host decided they were gonna be political and switch the show. I'm like, "Whoa, this is a turn."

[00:26:04] Heather Osgood: And if your ads are embedded, what are you being associated with? So that's one nice thing about dynamic ad insertion is just a little bit more control. 

[00:26:15] Gordon Firemark: Yeah. At least at the episodic level, I think you could deal with that by looking in the contract if you have specific areas that you just don't want to touch. Then tell the host. Brands won't control the show's content unless it's a branded episode. But you can say to the host, "Look, if you're gonna talk about abortion, we're not advertising on that episode, and you'll have to give us a make good."

[00:26:42] Gordon Firemark: A make-good provision must be added to a contract. So you know you're at least getting the number of inventory spaces you expect. Or refund, I guess, but podcasters don't wanna give refunds. 

[00:27:00] Heather Osgood: One thing that has interested me is who can and cannot advertise in podcasts. For instance, CBD advertisers are popular on podcasts. As far as I know, a CBD company cannot advertise anywhere on social media. When it comes to like Google ads, there are many restrictions about where they can and can't advertise.

[00:27:26] Heather Osgood: So, you know, that's just an example of a type of company that really has flocked to podcasts because it doesn't seem like there are a lot of restrictions. And I will say at True Native Media, we recently have gotten quite a few like THC advertisers coming to us. So we've had some strange kind of supplements where, like we, literally, go in that we're like, oh, you know, this is unhealthy. 

[00:27:52] Heather Osgood: We can see that there are all these reports that this product's probably not something people should be taking. Are there any laws in place or a government branch restricting who can and can't advertise?

[00:28:10] Gordon Firemark: Well, there is, there are two departments of the government that do actually restrict certain kinds of advertisements. Yes. The Federal Communications Commission has jurisdiction over broadcasting and cableTV. 

[00:28:21] Heather Osgood: And do podcasts fall into that jurisdiction? 

[00:28:24] Gordon Firemark: No, they don't because it's all private. No public airwaves are being used. So the FCC doesn't have the power to say what you can and can't put in your podcast. In fact, that's why you could have a podcast that some would call erotica or pornography, right?

[00:28:43] Gordon Firemark: No restrictions on it. You can't put that on television, right. Might be able to put it on particular cable television. So the government, this is the first amendment, freedom of speech. If I'm paying for my recording, hosting, and transmission. Plus, my listener is paying for their internet service to receive it; the government has no business getting in there. If they were to make a restriction, it would violate the first amendment. That said, they have some authority to regulate false advertising and misleading, deceptive kinds of stuff. The area that you talked about is CBD and THC. These are controlled substances under federal law, and certain states have legalized them and others haven't. So the restrictions you discussed with social media companies and Google that's not government restrictions. Those companies are saying that's a hot potato. We don't want to touch it because we've got too many customers in the states that are trying to regulate it.

[00:29:47] Gordon Firemark: So we don't want the states telling other companies we do business with that they can no longer be in business with Facebook, for example. So as podcasters, we have the benefit of being a little smaller, a little less of a target.

[00:30:06] Gordon Firemark: It doesn't mean we're not a target. And if you are a podcaster who lives in a particular state that has stricter regulations, you probably shouldn't be taking advertising from a company whose product isn't legal in that state. You are exposed to the risk of cooperating in the process of trafficking in the illegal or controlled substance or something like that.

[00:30:30] Gordon Firemark: But if you're in a state where anything goes, yeah, you could put it in your podcast. I'm trying to think if a state could tell a podcast hosting company, "Hey, you can't distribute that show in our state because they're selling a product that's illegal. They're promoting a product that's illegal here." And I don't think so. 

[00:31:09] Gordon Firemark: Again, you said earlier, it's a little bit of a wild west. That is what's going on here in the podcast advertising space. But the good news is it's first amendment protected speech, just like publishing a newspaper. Are they gonna tell the New York Times they can't run an ad for a CBD in the business section of the New York times? Of course not, New York times is a private publisher. It's not within the government's authority to really regulate that. 

[00:31:35] Heather Osgood: Okay. Okay, great. I thought that was the case, but it's nice to have confirmation that is the case. Should a host be concerned about endorsing or recommending a product that could ultimately be harmful?

[00:31:53] Heather Osgood: In the case of a host recommending a supplement that the FDA has not approved? And then the host says, "This is great. You should take it. It's gonna make you feel 20 years younger." And suddenly, their audience consumes the product, which has negative side effects. Maybe this is just a civil suit, but then come back to that host and say, "Hey, I'm gonna sue you because you recommended this product and it did me harm." 

[00:32:27] Gordon Firemark: I think the recommendation is slightly different from straight advertising. So when the advertiser provides you some ad copy, usually that ad copy is carefully vetted by the brand's lawyers and team, or at least thoughtfully written. So, they are operating within the boundaries of what they know they're allowed to say. With nutritional and herbal supplements, they have to be careful not to cross the lines of the FDA rules, which again prohibit certain kinds of statements and things.

[00:33:01] Gordon Firemark: So when the podcaster then goes on and elaborates on what's in the ad copy or makes it an endorsement. I use this product, and it's great. That's okay. But if they say, "You should use it because it will give you these benefits," that probably crosses a line unless the podcaster's talking points have been very clearly defined by the brand because both brand and podcast are at risk.

[00:33:26] Gordon Firemark: If I tell you, go out and try this thing, and you die because of it. Your family could come at me. Even if I win the lawsuit due to the first amendment freedom of speech, I'm probably a couple hundred thousand dollars in the hole due to the case. I'm not getting that back anywhere. So we need to be careful and thoughtful about these things. Endorsing products, certainly, that we haven't used is a no-no. And if we do actually use it, we should limit our endorsement to, "I use it, I'm pleased." That kind of messaging 

[00:34:07] Heather Osgood: Excellent. That's great advice. I mean, I think from an effectiveness standpoint, we talk so much about that host read endorsement ad and how effective it is because when you listen to a podcast and trust the host, you are more likely to go out and purchase the product that they're talking about. But really what you're saying, which I think makes sense, is there is a difference between, "I use this product, and I like this product, and you should go and buy this product. It's gonna help you lose weight." Yeah. 

[00:34:36] Gordon Firemark: We really need to be careful about the transition into the ad. If we're just having a conversation with our cohost and talking about what a great night's sleep I had last night, ever since I got that new mattress, it's been fantastic.

[00:34:48] Gordon Firemark: What kind of mattress is it? Oh, it's a Purple Mattress. You know, you go get into that discussion. The audience doesn't know this is an ad. So it's gonna feel more like that endorsement or that, that recommendation. So I think we need to be very clear when advertising that we're doing it, "Hey, now a message from our sponsor," or "Let's pay the bills."

[00:35:11] Gordon Firemark: We're gonna do this and make it clear to the audience. The audiences appreciate that we have to pay the bills, so I think brands need to be vigilant to ensure the host-read ad doesn't read like it's just part of the episode's body. 

[00:35:27] Gordon Firemark: Okay. We're gonna do an ad now. I think that makes a big difference in letting the world know and eliminating some of that risk. 

[00:35:34] Heather Osgood: Well, Gordon, I really have appreciated our conversation today. Before we wrap up, is there anything I didn't ask you about that you think is really good for either podcasters or advertisers to be aware of?

[00:35:47] Gordon Firemark: We touched on the idea that we should consider this a business. If you're on the podcaster side and you're gonna be running ads, contracts with solid documented arrangements.

[00:36:07] Gordon Firemark: I sometimes talk about the podcast prenup. When we talk about the people working on the show with us, everybody should know what they get, what they own, what they're not entitled to, and those things. And protecting our intellectual product. Yeah. We sort of touched on it all. Thanks for the opportunity to spread the message. 

[00:36:23] Heather Osgood: Yeah. Yeah, absolutely. It's been a great conversation, and I couldn't agree with you more. One of the mistakes podcasters make is they approach their podcast as a hobby. And suppose you are really looking to monetize your show. In that case, you really need to approach it as a business from many different perspectives. Still, legally, it will make your life a whole lot better.

[00:36:46] Gordon Firemark: So even if monetization isn't your goal, you may look like a business to the outside. And so, thinking about it in a business-like approach being professional, this is sort of my core message. You have to get legit and go pro even if you're not in it to make money because the world's going to think of you as a podcaster, not as some guy who has a podcast.

[00:37:12] Heather Osgood: And you never know what if somebody approaches you and says they wanna buy your show and you don't have anything set up that could happen, right? And so you, you really do need to make sure that your podcast is run like a business.

[00:37:23] Heather Osgood: Well, Gordon, thank you so much for coming on the show. If people wanna get in touch with you, where is the best place for them to find you? 

[00:37:29] Gordon Firemark: Well, I'm lucky to have a distinctive name. Like we talked about, uh, gordonfiremark.com. will get you to most of my stuff, and the law firm and my podcast all show up at firemark.com 

[00:37:41] Heather Osgood: Excellent. Excellent. Sounds good. Well, thank you so much for listening to the show today. If you want to learn more about podcast advertising, head to truenativemedia.com. We have a podcast advertising guide to download to learn everything you need about podcast advertising. Take care, and we will catch you again next time.



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Gordon Firemark

The Podcast Lawyer™

Gordon Firemark (firemark.com) has practiced media and entertainment law in Los Angeles since 1992. Widely known as The Podcast Lawyer™ (ThePodcastLawyer.com), he has spent his career helping creative industry professionals make deals that make sense and get their productions developed, financed, produced, and distributed. His practice also covers copyrights, trademarks, business transactions, and corporate matters for clients in media and entertainment. He is the producer and host of the Entertainment Law Update podcast (http://entertainmentlawupdate.com ), and More, Better, Faster! (http://morebetterfaster.media), and author of the Podcast, Blog & New Media Producer's Legal Survival Guide (Https://podcastlawbook.com).