By Charlotte Sutcliffe, associate, Al Tamimi
There’s no doubt that podcasting is a convenient and worthwhile medium of entertainment and expression. Listeners can tune in anywhere: on their way to work, at home and while cooking or getting ready for the day. In the UAE alone, there are about 1.5 million regular podcast listeners. This means excellent exposure for ideas to be shared, individuals to be informed and products, services and events to be promoted.
This article will identify certain legal pitfalls that podcast producers, and brands partnering with podcast producers, need to be aware of when developing podcasts.
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Intellectual property and publicity rights
Like most polished pieces of marketable content, podcasts usually contain an amalgamation of various rights belonging to different entities. This may include intellectual property (IP) rights in the intro and outro music, scripts, artwork, and excerpts used in the podcast. It may also include publicity and privacy rights of individuals featuring in the podcast (including those individuals discussed or referenced in the podcast).
Intellectual property is a bumble of rights. The most notable rights relevant to podcasts are trademarks (the name of the podcast), which require registration to be protectable, and copyright (any literary, musical or dramatic works).
The position under the UAE copyright law is that, by default, the author owns the IP rights in copyright. Therefore, it is fundamental that the podcast producer either creates and therefore owns the copyright, or otherwise has an exclusive or non-exclusive right to use it. For this, the podcast producer and/or brands need a written agreement to assign or license the copyright to the podcast producer from the author. The typical industry position is that if it is created specifically for the podcast, the podcast producer should own it. If it is a separate piece of IP (such as a song used in the intro and outro), a licence is required.
Publicity and privacy
To protect an individual’s rights to privacy and safeguard their publicity, ensure all individuals who feature on the podcast sign a short release prior to going on air. This should give the podcast producer (and any distributors) the broad right to publish and display an individual’s image, likeness, voice, etc. for the purposes of promoting and distributing the podcast.
There are certain themes, topics and activities that are prohibited under UAE law. For example, content should not: criticise any rules of the Emirates or harm the interests of the UAE; instigate criminal activity; disgrace, defame or infringe on an individual’s private life; or contain false news. Contractually, producers must ensure individuals featuring on the podcast are complying with standards. If something goes wrong with the podcast, the producer must also ensure it has the contractual right to take the podcast down.
The most efficient way for this to be tracked is to include a short guide for all individuals who feature on the podcast, which contains all kinds of prohibited topics that should not be discussed. One risk with this, however, is that individuals may over-censor themselves out of caution, which is not ideal – the podcast should still be informative and entertaining.
Industry professionals usually ensure that prohibited or offensive activities are not promoted (even if such things are discussed). There are severe penalties for breaches of these laws, and content can also be blocked. Nevertheless, it is worth noting that the risk of penalties for prohibited content is lower if the content is produced overseas.
Influencers and advertising laws
It is very common for podcast producers to use influencers to feature on the podcast (and also common for influencers to host their own podcasts). However, influencers should ensure they are complying with advertising laws. For example, influencers should ensure they do not advertise alcoholic beverages. Also, if influencers are promoting products and services within certain categories such as healthcare, real estate, crypto and educational institutions, they should be aware of complying with specific advertising laws.
When producing a podcast, or using one to promote your brand, it is important to be clear on the legal pitfalls from start to finish. Ensuring IP is cleared and content is acceptable are two major ones.
So, given the above, when should podcast producers turn to a lawyer? The obvious answer is when they run into trouble (a defamation claim, infringement claim or violation of a UAE law), but by then it is usually too late – they are in legal trouble and/or they have sustained reputational damage. Therefore, it is helpful to follow the tips above, ensure everything is in writing or ensure a lawyer is engaged at the outset to cover off the most important points. That way, creativity and execution have the main focus.