Submission Date:
Question:
The library's podcast (Your Friendly Neighborhood Librarians), hosted by two librarians here, recently started interviewing guests from outside the organization. We are concerned about a few things: what the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording. We only edit for clarity and length, and haven't done anything in regards to copyright. Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related. Thank you for your help!
Answer:
Some days, I just love my job. The day I subscribed to "Your Friendly Neighborhood Librarians" (2/4/22) to answer this question was one of those days.
For those of you who haven't checked out the Podcast: it's a forum where hosts (and librarians) Jim and Robyn, based in Rochester, NY, conduct deep and lively interviews with quasi-local authors. [1]
When it comes to running a Podcast, there's a lot of legal to unpack. I'll use a recent episode of YFNL (Season 2, Episode 4, January 30, 2022), an interview with photographer Quajay Donnell to illustrate.
When the Podcast starts, the first thing you hear is the YFNL's theme song:
[guitar strumming] "Librarians, librarians, when you've got questions, they're the ones, to help you find what you're looking for..." [more]. It sounds vaguely like the theme to "Spiderman" and is clearly a riff; it's super-cute and fun and brings a smile to my face. Then Jim and Robyn introduce the session's guest and launch into the interview.
The rapport is lively and fun, but Jim and Robyn's deeply prepared interview technique gives Quajay Donnell room to make comments, tell stories, and respond to well-informed prompts to talk not only about his work, but the work of others, and his thoughts on public art (I enjoy Mr. Donnell's comment, after a glowing list of his credentials "I sometimes struggle with the title of 'photographer', I sometimes say 'I'm a picture-taker', or 'I capture moments'." I appreciate when people resist or explore the purpose of labels). The show then ends with a cut to a recommendation from a circulation desk worker, Sim, who recommends "Field of Blood" by Joanne Friedman, and a tease for the next episode ("banned and challenged books"), some thanks to various show-helpers,[2] and an instrumental of that great theme song.
So with that background, let's answer the questions:
"[W]hat the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording. Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related."
I wish I could give simple answers to these straightforward questions, but this is "Ask the Lawyer," so I cannot. But to start, I can say there are three variables that inform the answer to these questions:
Variable "1": Who is creating the Podcast? Is it "officially" the library, or is it being created through the collaboration of independent individuals?[3]
Variable "2": What is the identity of the Podcast? Is it 100% entertainment, or is it meant to be investigative journalism, oral history, or serve another documentary purpose?[4]
Variable "3": What is the purpose of the Podcast? In other words, what is it trying to achieve not only now, but 70 years from now, when it is still protected by copyright, and past consideration of such questions will govern what type of access its intended audience should have?
Here’s how these variables impact the member's questions:
If a library is the creator of the Podcast (meaning the library directed its employees to create the Podcast as part of the work they are hired to do), then the library is the entity responsible for addressing (and bearing the liability for) issues of ethics, ownership, and risk (like defamation and image use). If an individual or individuals are the creator/owner of the podcast,[5] the responsibility falls on them.
If the identity of the podcast is light entertainment (that theme song!), then the creator does not have to worry about abiding by, or benefiting from, professional codes of ethics and law pertaining to journalism, academic work, oral history/documentary, or political expression. But if it aspires to fall into any of those categories (and while it's not my call, I'd say YFNL is at the very least a form of journalism), ethics and certain laws may apply.
If the purpose of the Podcast is to ensure that people listening in 2022, as well as 100 years from now, appreciate home-grown artists in and around Rochester, NY, the creator/owner needs to ensure the work is set up to be controlled in such a way that access for that purpose is ensured. This is true whether the owner is an entity (like a library), or a person or persons.
So with that as background, let's tackle the member's questions:
For the first question ('"[what] if a guest does not like the way their interview was edited?), the answer is: in a worst-case scenario (say the guest claims the interview was edited to make him sound offensive, and claims it caused him to be "cancelled"), there could be some type of legal claim for damages. While I won't get too technical, this concern relates to a "tort" claim (like a personal injury) and the member is wise to bring it up, since this is a critical issue.[6]
An attorney advising an entity or person on this would: 1) confirm who the creator, publisher and owner of the content is; 2) ensure the party (or parties) makes good use of a speaker agreement that secures a waiver of liability for the producer and all people affiliated with the podcast; 3) if appropriate,[7] advise a step in the production process that gives participants the right to review and approve release of the final version (in writing).
This plays into the second question: "whether the library owns the rights to the interview and recording."
This should not be an ambiguous issue: either the work is "for hire" (meaning the librarians and other credited helpers are doing it as part of the work they are paid to do, or are working per an additional contract) and is owned by the library, OR the work is owned by the individuals creating it.
The leads to the third question (or rather, factor) listed by the member: We only edit for clarity and length.
This plays into the identity of the podcast. If a podcast or other work isn't using a lot of editing to create a specific dramatic or entertaining effect, and is structured to perform a primarily documentary function, it is worth considering using the established ethics of journalism or oral history to guide the project.
Why?
In the state of New York, journalists' sources are accorded particular protections under the law, while the identity of the speaker and nature of the communications are relevant to claims of defamation. Also under New York law, the further an unauthorized[8] use of someone's name, likeness, or voice, is from a "commercial use," the less likely a person can sue based on "invasion of privacy." And under federal copyright law, material that incorporates copyright-protected work (perhaps reading part of a poem) for journalistic, academic, or documentary functions will get consideration of that factor if a court needs to determine "fair use."
This next variable I listed is purpose, meaning, what is this work supposed to accomplish, and for how long? Consider that variable in light of the member's statement: "[We] haven't done anything in regards to copyright."
If the purpose of the podcast is to ensure as many people as possible access and appreciate it for as long as possible, what might be more important than registering a copyright is to ensure the work is archived on not only a commercial service such as Apple Podcast (where I found it), but in repositories owned by the public, as part of an institution whose structure ensures some type of longevity.
However, if part of the purpose of the podcast is to ensure for as long as possible that it can never be exploited commercially by anyone, and the owner wants to make sure it will be able to claim damages and attorneys' fees in the event the recording is infringed, registering it is a good idea.
So with that, I get to the last, open-ended question from the member: Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful.
It's important to know at this point that while sometimes I reach out to a member who submits a question to "Ask the Lawyer" (to get a bit more information to enable a more helpful answer), in this case, I did not reach out to Robyn and Jim (although because I really like the podcast, I wanted to!). I thought it would be more important, and in the spirit of their question, to present a generic answer to this part of their question with a generic template that could be of use to other libraries and librarians creating a podcast or other type of audio content.
When creating a podcast, here are the "legal" questions to answer to help you (and your lawyer) address the legal considerations:
|
Question |
Reason it's relevant |
Your answer |
|---|---|---|
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What is the purpose of the podcast?
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It's important to answer this question first, because the purpose of the podcast will drive all the answers following this one.
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Are there any professional ethics that apply to the podcast?
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This answer is based in part on the "purpose." If the purpose is a type of journalism, the creator may want to consider affirmatively abiding by applicable journalistic ethics. If the purpose is oral history, the ethics of oral historians could apply. |
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Who "owns" the podcast?
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This is a question for a lawyer. However, I can broadly say that if a library or educational institution is directing the podcast to be created, and the people creating it are doing so as part of their jobs, then the podcast is owned by the employer. If everyone involved is unambiguously doing it in their free time, then likely, they are the owners together. And in either case, if there is any grant funding that applies to the podcast, the owner(s) should pay close attention to the terms of the grant, because often grants involve a license or transfer of intellectual property.
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What is the end product?
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This seems like a pretty straightforward question, it's "podcast recordings," right? However, in just taking a look at "Your Friendly Neighborhood Librarians" I heard a theme song that could be subject to individual copyright, and I see there are really excellent descriptions of each podcast that were authored by somebody. In addition, "Your Friendly Neighborhood Librarians" (a clever brand) could also be subject to trademark. There is also a logo. And if the content is in its own archive with its own metadata, the metadata could also be proprietary. These are just a few examples, so inventorying the end creation (and if all of the creators are not employees, making sure intellectual property is transferred appropriately) might be bigger than maintaining a list of podcasts.
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What are the terms for regular and guest contributors?
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For podcasts being created by people as part of their jobs, the expectations, rules and protections for them should be understood between their job description and the rules by which the podcast is operated.
For guests, as the member's question points out, it is best to have a written agreement that sets out the terms, including the right balance of a waiver of liability and the ability to preview the podcast to ensure any editing does not result in a person saying something they didn't intend to say.
(As one example of "rules": if a podcast is being produced by a public library or a not-for-profit organization, there should be a firm rule that no endorsements of political candidates are allowed on the show.) |
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What other conditions may apply? |
For podcasts released on Apple Podcast, this means what are the rules you have to follow under the terms of Apple. For those selecting additional or alternate fora, paying attention to the "terms and conditions" on those resources is also important. And as mentioned above, grants and donations with conditions that support the content creation should also be considered (if you are lucky enough to be running a grant-funded podcast). |
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How do people access the content?
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This is critical for ensuring accessibility in both the short and long-term. Early consideration of this factor also ensures that any legal releases or agreements an owner needs to enter into (like licensing a logo) can accommodate the full plan for accessibility. |
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How are any risks being addressed?
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I appreciate this is a very open-ended last item. Broadly speaking, if the podcast is being produced by the library, the library's insurance carriers should be consulted to make sure it has insurance coverage for that type of activity. Any aspect of the podcast that is not covered should either be limited or other risk management, such as a waiver of liability, and a process for preview by guests, should be considered.
This last item is addressed by Apple's terms of use for podcasts, which I have included below.
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Now, with all that said, I am very aware that some of the answers I have put above may cause more anxiety then resolve curiosity. To help out with that, below is a template for a "podcast guest agreement."
As with any template, a library or podcaster should have their lawyer consider all of the factors I list above before finalizing the template. But hopefully this template can provide a good start.
[Template Podcast Guest Agreement]
RE: Terms of guest appearance on [PODCAST NAME] on [DATE]
Dear [NAME OF GUEST]:
Thank you for agreeing to be a guest on our show, [NAME] ("the Show") on [DATE TIME] to discuss [TOPIC].
Below are the terms between you and [OWNER NAME] ("Show Publisher") for your appearance on the Show. Please review the terms, and if you agree, please sign below.
If you have any questions before signing, please contact [NAME] at [CONTACT INFO] to discuss them before sending us the signed copy.
Ownership
You agree that the direct recording (audio and visual) and any subsequent product incorporating it, including but not limited to transcription and any adaptive copies made to enable access by those with a disability, shall be the sole property of Show Owner.
Image Use
You agree that for purposes of promoting, publishing, performing, displaying and making the Show accessible to its audience, Show Owner may use your name, image, and likeness in print and electronic media. This permission is expressly limited to promoting and publishing the episode of the Show featuring you. This permission is irrevocable once the Show featuring you has been made available to the public in any medium.
Rules
The rules of participating in the Show are:
Show Owner is committed to creating an experience and show that respects the dignity of all participants and listeners. If you have any concern at any point regarding your experience working on the Show, please alert [NAME] at [CONTACT INFO].
If at any point during recording you need to take a break, please simply state "I need a break" and we'll stop recording. This includes if a topic is not one on which you wish to speak.
We edit our show for length and clarity. You will be given an opportunity to review the edited version prior to it being uploaded to [SITE(s)]. We ask that you write to [NAME] and [EMAIL] with any concerns about edits within [#] days of the final cut being made accessible to you. If we don't hear anything from you within three days (excluding Saturday and Sunday), we will assume you consent to the publication of the content.
Please refrain from any endorsement of any political candidates during recording.
Please do not accuse any person of a crime, having an STD, or of being incompetent at their job, or marital infidelity, unless such fact is generally known, during recording. We don't anticipate your appearance will warrant a dip into such a topic, but to avoid claims of defamation, or having to edit out such content, we alert guests to this consideration.
[INSERT CUSTOM RULES]
Hold Harmless
You release and hold harmless Show Owner, its employees, volunteers, and agents from any and all liability, claims of injury, lawsuits, and complaints in association with Show.[9]
Warranties & Representations
You represent and warrant that:
a) No contract or other obligation bars you from appearing on the Show;
b) Any performance on the Show by you will be of your own original work;
c) You are aware that the permission you are granting NAME to use your image, name, and likeness for the limited purposes listed above is irrevocable;
d) You know the show will be archived by Show Owner and may archived to be available for your lifetime and beyond.
e) You are over the age of 18 and thus able to sign this contract OR your legal guardian has signed below.
Thank you so much for agreeing to be on our show!
Signed on behalf of Show Owner:___________________________
Signed by Guest:______________________________
Guest Date of Birth:_______________________________
Guest preferred pronouns:_____________________________
[if applicable] Signed by Guest's parent or guardian:____________________________
Good wishes for your friendly neighborhood podcasts, true-believers!
[1] For any Western New Yorker lamenting the decreasing number of journalists on the local creative beat, this is a nice antidote. (BTW...Buffalo/Rochester = WNY. Syracuse/Rome/Utica = Central NY. I grew up in Central New York and now live in Western New York, and when this distinction gets blurred, it hurts).
[2] Including two people credited for the theme song.
[3] In my experience, librarians can have a tough time with this one, since they often go above and beyond. For more on this type of issue, see the "Ask the Lawyer" on LibGuides at https://wnylrc.org/raq/previous-employer-re-assigned-authorship-libguides.
[4] I realize that these categories overlap, especially these days, but we'll talk about why the distinctions are important.
[5] It's official: I am using a lower-case "p" to write "podcast." Congratulations, podcast, you've been genericized.
[6] It is also very much an "issue de jeur", since the ALA has joined an amicus brief on the rules in the state of New York for suing non-journalists for publishing content in public fora. For more on that, search "Coleman v. Grand."
[7] This is a major distinction between a cultural or entertainment piece rather than investigative journalism, since professional reporters generally don't give interview subjects the right to approve a final cut.
[8] In this case, "unauthorized" means without written, signed permission.
[9] If you don't have a lawyer look at any other part, have them look at this. This is a very bare-bones hold harmless intended to not "scare off" guests; a library should have a clause that matches the level of risk it is prepared to take.
Tag:
Broadcasting, Copyright, Disclaimers, Policy, Public Libraries, Templates
