3 Key Reasons Every Podcaster And Guest Must Have This Essential Podcast Contract
Want to know which podcast contract you need if you have guests on your podcast OR if you are the guest on a podcast? This is the contract you need and the three key reasons you need it.
Having or being a guest on a podcast is extremely fun and exciting, but if you're anything like me, you want to make sure you (and your podcast if you are the podcaster) can't get hurt (intentionally or unintentionally). As a lawyer myself who drafts contracts for podcast hosts and guests, I want to ensure you have the essential podcast contract you need to be legally protected.
You will learn all about the crucial podcast contract you MUST have, the podcast guest contract, which I consider the ultimate podcast agreement form of all podcast legal documents, and the applicable podcast contract law.
After learning about this podcast contract, and the three reasons you must have it, you will understand its importance and be fully equipped to protect yourself, whether you are the podcast host or the guest.
This post is all about the essential podcast contract that every podcast host and guest needs.
Ultimate Podcast Contract
Podcast Contract Law
So, here are the three reasons why you need a podcast guest contract.
1. Publicity and privacy rights & the consent to be recorded
Regardless of whether the laws in your state or country permit recording a conversation without needing the other party's consent (if you, the recorder, are participating in the conversation), you need to have the other party's consent. Why? Because, even if it's allowed, the guest can still sue the podcast host for whatever damages the guest may suffer.
If the court finds that the podcast host has not requested the guest's consent before the recording, the court might grant the podcast guest compensation for damages.
As a host or owner of the podcast, you can protect yourself from getting sued or someone threatening to sue you if you do not take the podcast episode off the air by having a podcast contract.
You may think: "But if a guest agrees to be on a podcast, then the guest obviously agrees to be recorded by the podcaster." Wrong! The podcast host needs to have the guest's explicit consent to record the guest's voice (and likeness if the podcaster also records the conversation on video).
Everyone has some type of personality rights under national or state laws, also called the right of publicity, and privacy rights. Essentially, these rights mean that every individual has the right to control the (commercial or public) use of their name, voice, likeness, image, and other identifiers. So, in the case of a podcast in which the podcaster records the guest's voice, it's important to acknowledge those rights and have the guest waive them.
The guest not only has the right to know if the podcast host is recording him/her/them, but the guest also needs to consent to it (in the case of a podcast) for the host to be able to exploit the recording of the guest's voice.
If the podcast host is also recording the guest on video, then the host must also be mindful of the fact that the guest has the right to his/her/their likeness, and the guest must provide consent to have him/her/them on camera.
Thus, every podcast host or owner needs their guest to sign a podcast guest contract (with the proper wording included) to ensure they get (full) consent to the recording.
Make sure to have the guest sign the contract before the recording starts.
2. Rights of the podcast guest
The guest also has copyrights. When recording someone expressing thoughts or ideas, the contents of such recording have copyrights attached to them. The contents of the recording are a "creation" in itself, and copyrights are attached to that creation. In the case of an interview or recording, the podcast host and guest are making a "creation" together. In that case, both the podcaster and the guest have copyrights to that creation. Depending on the exact contents of the recording, both the podcaster and the guest could have separate copyrights to parts of the content or be co-owners of the same copyrights. It's a bit complicated to explain in detail when the host and the guest are co-owners or separate owners of specific contents in one recording, but for now, it's essential to know that both parties have copyrights.
Thus, the podcast guest can exercise these copyrights. The guest could request the podcaster to take the episode off the air for that reason too. The podcast guest may not want the podcaster to remove the podcast episode completely but have (certain parts of it) edited. After all, you have the right to determine what happens with your intellectual property and how someone else may use it.
In order for the podcaster to use AND edit the recording, the podcaster needs the prior consent of the guest too.
3. Rights of the podcast host
We talked about the fact that both the guest and the podcaster have copyrights to the contents of the recording. However, that does not mean they both have copyrights to the recording itself. The contents of the recording and the recording itself are two separate things under copyright law. Since the podcaster does the recording, the podcaster is the sole copyright owner of the recording, not the guest. There are exceptions to this, which is when both parties are responsible for the recording. But let's keep it simple, the podcaster is the owner of the recording if he/she/they made the recording for his/her/their podcast.
Still, because the contents of the recording contain the guest's copyrights and the rights to the guest's voice and likeness, the podcaster can't do whatever he/she/they wants with the recording. At least not without the prior consent of the guest, which is why, again, a podcast guest contract is needed.
The guest may want to use (parts of) the recording too. Not on the guest's own podcast, perhaps (because that might defeat the purpose of having the guest on the other party's podcast), but for other platforms and social media. The podcaster may also want the guest to promote the podcast episode on social media.
Thus, the podcast guest needs the right to use (and edit) the recording itself and the contents of the recording (as they also contain the copyrights of the podcast host). A podcast guest contract can grant such rights.
To sum it all up
These are the three key reasons why both the host and guest need a podcast guest contract (and what I call the basics of podcast contract law):
The podcast host needs the consent of the podcast guest to record the guest's voice (and likeness), and the guest needs to release the host from any liabilities for making that recording public (as long as the recording is not misused).
The podcast guest has certain rights to the contents of the recording, and the guest needs to grant the podcast host rights to use those contents and edit them for the podcast episode.
The podcast host also has certain rights to the contents of the recording and the recording itself. Thus, the host needs to grant the guest rights to use those contents and the recording itself and edit them to promote the guest's business and/or the podcast episode.
Podcast Agreement Form
There is some debate on the podcast agreement form; to use a podcast contract or to have the guest provide consent to be recorded and the right to use and edit the recording on audio.
Many podcasters and guests are not even aware that these rights of either party exist until something bad happens.
Other podcasters are aware of such rights but believe that having consent from the guest and the granting of rights recorded is sufficient.
Instead of using a podcast contract, some podcasters start the recording and ask (on audio) for the guest's consent at the beginning of the recording. That works, too, in many cases.
However, not everything is usually covered by asking a couple of questions and having the guest agree to them.
Signing a podcast guest contract is the most secure way, as it provides the correct and unambiguous wording for consent.
Are the risks really that big?
It may seem a bit much, and you probably don't have the intention to put your guests in a bad light on your podcast (if you are the podcaster) or, if you are the guest, you have listened to other episodes of the podcast you are making a guest appearance on, and you trust nothing bad is going to be said about you.
However, there have been several lawsuits about this matter. There have been instances where a guest has said something controversial and, while the guest (nor the host) may have realised it at the time, later were confronted by listeners on social media about it, ruining their reputation. As you can imagine, and you probably do this more often than you think in private conversations, you may say something during a flowing conversation on a podcast that is slightly controversial, political or hurtful to certain individuals or groups. Sometimes that happens intentionally (as some hosts are great at pulling information or statements out of their guests), but sometimes it just happens without it being the host's or guest's intention.
There have also been instances where podcasters have used segments of the recording on social media, which gave the audience a different impression, as it was out of context. As a guest, you want to have the right to have the podcaster take that post down.
What also occurs is not the guest but the guest's family suing the podcaster after the guest has died (as copyrights and rights of publicity remain in existence after someone dies). As a podcaster, you want to avoid that.
Podcast Guest Contract
In my experience as a lawyer, the answer is to have a podcast guest contract to have all rights and protections of both parties covered.
"But Selene, it's WAY too awkward to have a guest or host sign a 12-page contract." Well, after slipping a few contracts under the nose of a few guests and podcast hosts, you get used to it. I am just kidding. I totally understand that it's awkward to present someone with a contract.
If you are the podcast host or owner, there is another option. You can have your guests fill out a form on a web page, and incorporate the podcast guest contract as terms and conditions to your form. You can include these podcast terms and conditions as an embedded link in the form and have the guest agree to the terms by checking a box and submitting the form. Make sure you have the proper wording in the terms themselves that provide that checking a box constitutes an e-signature.
My podcast guest contract template that I sell in my contract shop also includes a version that can be used as such terms that a guest can agree to in a form.
If you are the guest who has been asked or if you have asked to be a guest on someone else's podcast, there is a good chance that the host will not present you with a contract at all (or terms to agree to). In that case, presenting the podcaster with a podcast contract may be awkward, especially if you have asked to be a guest. However, it shows your professionalism and that you take your reputation, your rights and those of the podcast seriously. And, if the rights and obligations in the podcast guest contract are reasonable and provided to both parties where possible, the podcast host can only respect you for it. Always give a brief explanation in the email containing the contract that it's to protect both your rights and their rights (and, at least now, you have the three key reasons why).
This post was all about the ultimate podcast contract you need as a podcaster or podcast guest
You can learn more about other podcast legal documents you need as a podcaster in this blog post: 5 Must-Have Podcast Contracts Every Professional Podcaster Needs
You can get your legal podcast bundle (which includes the podcast guest contract) here!
You can get the podcast guest contract separately here!
