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Podcasting’s Copyright Growing Pains

Earlier this week, the New York Times ran a review of a new podcast by Keegan-Michael Key, of the comedy duo Key & Peele, called “The History of Sketch Comedy.” It features Key discoursing on the history of a medium that dates back to the ancient Sumerians and performing bits from classic sketches himself. Being a big fan of all three things (podcasts, Key, and sketch comedy), I eagerly fired up the podcast app on my phone and typed “history of sketch comedy” in the search box. No results. Then I googled something like “keegan-michael key podcast” and found out why: the podcast is exclusive to Amazon’s Audible audiobook/podcast service. It requires a subscription to Audible Plus at $8/month.

This brings up two interesting issues about copyright in podcasting. First is about paywalls and licensing of content to distributors. “The History of Sketch Comedy” is part of a trend of podcasts behind paywalls that has been growing quietly over the last couple of years and is, in my view, headed for an upward inflection point shortly. (I’ve been writing about this in Forbes.) Spotify has been acquiring podcasts such as the highly popular “The Joe Rogan Experience” and making them exclusive to Spotify subscribers; it has also been launching new shows, through publishers it owns such as Parcast and Gimlet, and making them exclusive too. Amazon launched a podcast service with exclusive shows bundled into its Spotify competitor, Amazon Music (and thus separate from Audible), late last year. And Apple is expected to launch its own separate paid subscription service for podcasts later this year.

The article in the Times mentions Audible but doesn’t say that “The History of Sketch Comedy” is behind a subscription paywall. The Times has been publishing podcast reviews at least since the start of the pandemic last year, but this is probably the first time that it’s reviewed a platform-exclusive podcast. Not saying that “The History of Sketch Comedy” is exclusive to Audible is analogous to not saying that a new TV series is on Hulu or Netflix or Peacock or Amazon Prime or Disney Plus or Discovery+ or etc., etc.

In the past, podcasting was a license-free zone. Producers put their podcasts out there, often paying hosting services to do it for them, and just let all of the many podcast apps list them in their directories. Ubiquity was the guiding principle. The idea that someone (such as an app developer or service provider) would need a license to copyrighted material was utterly alien.

But that’s changing. The first sign of change was in 2019, when a startup called Luminary raised $100 million in an attempt to launch a “Netflix for podcasts” paid subscription service. Luminary’s apps played free podcasts in addition to the couple dozen exclusives that it offered. But Luminary had various problems at launch, one of which was that it edited URLs out of podcast show notes, claiming “security concerns”–but many of those URLs were links to crowdfunding or sponsor pages. The backlash was swift: several major podcast publishers–including the Times, Spotify, Barstool Sports, and iHeartRadio–demanded that Luminary take their podcasts down from its service, DMCA-style, stating that Luminary did not have permission to offer them.

The next big sign of change was Spotify’s deal with Joe Rogan in May of last year. The comedy star had already built up a formidable audience on his own; Spotify reportedly paid him over $100 million in return for an exclusive license. That is, Spotify does not own “The Joe Rogan Experience” (as it does, say, Gimlet’s tech podcast “Reply All”) but instead licenses it. More deals of this type will surely come. Most of the major independent podcast publishing houses are being acquired by the likes of Spotify and Amazon. Therefore individual celebrity shows like Rogan’s are more likely to stand out as must-have content for podcast paywall builders, and those podcasts are more likely to be made exclusive via licensing deals than by outright acquisitions.

The second copyright-related issue that Keegan-Michael Key’s podcast brings up has to do with the use of third-party copyrighted material in podcasts. We’ve recently discussed the challenges of licensing music for use in podcasts and the different approaches that services like Spotify, Pandora, and iHeart are taking to it. Yet because the prodigiously talented Key is doing his own performances of classic radio and television sketch comedy material on “The History of Sketch Comedy” instead of using audio from the actual clips, he doesn’t have to clear the rights to them.

Or does he? A couple of startup companies are now saying yes.

Two startups, Spoken Giants and Word Collections, are saying that the text works underlying podcasts and other recorded spoken-word audio, such as comedy, are copyrighted works themselves and must be licensed where necessary. Key’s podcast includes new performances of the text of recorded comedy works, as opposed to the original recordings themselves; this implies that even if he doesn’t need to license sound recordings (or audio from TV or film), he may need to license the underlying text content. This situation could also come up in converse situations, when podcasters want to license their material to multiple entities, or in some instances where people want to use portions of podcast scripts for various purposes, if the material is in copyright and there’s no obvious fair use defense.

Digital Entertainment World will be hosting a virtual panel on this subject on Thursday, February 11, featuring the two startups’ CEOs, which should provide more insight into this new area. (Full disclosure: I’m an advisor to Spoken Giants.)

As podcasting becomes bigger and bigger business, these and other copyright issues will become more and more important. Some will lament (or may already have lamented) this exodus from the halcyon days of podcasting, when everything was free, fancy production wasn’t expected, and all the ads were read by podcast hosts; but such is the price of fame.

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