96: The Legal Side of Podcasting with Andrea Sager

Written By Britany Felix
 
86 Andrea Sager Podcasting for Coaches Britany Felix.png

What’s This Episode About?

“You can’t assume, ‘Oh, it’s podcasting. I can do whatever I want.’ That’s not the case.” - Andrea Sager

Andrea Sager is a small business attorney shaking up the legal industry with her Legalpreneur plan that provides affordable all-access to legal advice for small businesses. After working for a large law firm with big businesses, Andrea realized her true passion was helping small businesses embrace and protect their assets and intellectual property. In just a few years, Andrea has become the go-to attorney for entrepreneurs, protecting everything from their brand names and Instagram handles to their courses and trademarks.

In this episode, we talk about why you absolutely should use a guest consent form if you have guests on your podcast, what a cease and desist letter is, when you can utilize a cease and desist letter to help protect your podcast and business, when a cease and desist letter can be used against you, whether or not you can legally use music in your show if you use less than a certain number of seconds worth, what the deal is with Fair Use and how it’s not what most people think it is, whether or not you should get a copyright for your podcast, the legality of using memes on your social media accounts, and the number one thing she sees entrepreneurs get into legal trouble for doing.

Transcript

Welcome to podcasting for coaches. I'm Britany Felix and I'm a podcast launch consultant who specializes in helping coaches and consultants utilize the power of podcasting as a way to build brand awareness and generate new leads for their business. I realize not every new coach or consultant can afford to hire someone to help launch their show. So I created this podcast as a way to guide you through the process of launching and utilizing your very own podcast to help you grow your business and reach a new audience of adoring followers and potential clients. If you're ready to get your voice and podcast out into the world, head over to podcasting for coaches.com to learn more. Welcome to Episode 96 of podcasting for coaches. As promised in Episode 95, I am bringing you my conversation with Andrea Sager, who is a small business attorney who is shaking up the legal industry with her legal printer plan that provides affordable access to legal advice for small businesses. After working for a large firm with big businesses. Andrea realized her true passion was helping small businesses embrace and protects their assets and intellectual property. In just a few years, Andrea has become the go to attorney for entrepreneurs, protecting everything from their brand names and Instagram handles to their courses and trademarks. Andrea and I have been aware of each other for a while because we're both in the podcast space. She is a podcaster herself, as you will hear in this episode. But she is very frequently the one that is referred if somebody has a legal question in a podcasting community. I am very often the one doing the referee. But I became aware of her because she is recommended so often. And she's constantly stepping in with advice to help podcasters. Now I contacted Andrea directly last summer, after having like three different instances in just a few months, where other businesses and podcast service providers. Were using the phrase podcasting for coaches. I wanted to know if there was anything I could do about that did I need to get a copyright Finally, all of those questions that every business owner and podcaster has eventually and you will hear is actually kind of allude to the situation a little bit in the conversation. So that's kind of what that's all about. Andrea actually also helped me in that filing the LLC for my business. And we are connected in one other way that I'm going to talk about actually in the outro for the episode, so you have to stay tuned for that. Alright, without further ado, let's get into my conversation with Andrea Sager. Andrea, thank you so much for being on the podcast. As the listeners heard in the intro for this episode, you and I have actually worked together. But it's nice to have this chance to just kind of chat about podcasting in general. And that we need to cover a lot in a short period of time. So I'm gonna jump in with the first question, which is guest releases. This is something that a lot of podcasts are still think about. If you have an interview show, you're having people on your show, you're putting this content out there, you're selling services on your podcast, like so it's part of a business and you're you're having people come on and share these personal things, share their opinions, share their own products, like so, why do podcasters if they even need to, I guess is the first question. But if they do, why do we need to have these guests releases?

 

03:26

Great question. And you actually explained it better than I do. I'm just like, yeah, you need to guess release, but you really just hit it on the head. I mean, you people are coming to give their opinion, you may be promoting a product. So for an advertisement, you need to make sure that they know number one, they're not getting a cut from a mean unless that's the arrangement, but they're not making money by coming onto your show. That's typically the arrangement for podcast interviews. Obviously there there are the exceptions. So you want to make sure that everything is truly understood. And this is what I really tried to get people to understand about contracts. Because people all the time I hear Oh, well, I don't want them to think I'm trying to throw something in there, sneak something in. And then I always hear Oh, well, you know, this contract went south because this wasn't understood or they thought this and I thought this and ultimately what it all comes down to is it wasn't in the contract. And the whole purpose of the contract. So for the guests release is to truly make sure both parties understand what's going on, and to make sure that both parties understand their rights and their duties. So in specific relation to the consent agreement, the guest consent. Basically you just want to make sure that they understand they are not making money by coming onto your show. You may be promoting something else by having the sponsorship. You also have the right to use their content for other things if you want to have that right. You want to make sure That you have the right to use their voice and whatever materials they have provided you with to promote to your own audience with your own social media, your own emails, because there are some people that are like, Look, I'll come on the show, but I don't want you to advertise anything else or you know, they want to get very specific, you need to make sure that you're laying out exactly everything that you want from them. And then if they want to come back and say, Oh, no, I only want this or that. Maybe you're fine with that. Maybe you're fine agreeing to that. But you can't just assume, oh, it's podcasting. I can do whatever I want. That's not the case. And as podcasting is getting bigger and bigger, there's going to be bigger players that are coming in that. Yeah, maybe they're new to podcasting. And so they're new to what you want to call, I guess, the normal podcasting rules. And because of that, there may be misunderstandings. And you know, I've heard from somebody like, hey, I've been podcasting for 10 years, I've never used a guest consent. Okay, great. Like, that's awesome. But you know, one day there will be an issue and you'll regret never ever using a guest consent for anybody.

 

06:12

Yeah, that comes up. even beyond guest consent was so many things in podcasting, like even when people who use explicit language and like the title of their show, because there's so many podcasts that do that, but technically, that violates Apple's policy. So at any time, they could decide to enforce that, and it's the same with guest consent, like, at any time, your next guest could be the one to come along and cause some issues. So previous, you know, ability to get away with that has no bearing on the future. So with this guest consent, which by the way, I am going to explain in the outro, for this episode, how you can get a template for this. Yeah, yep. Andrea has one for you. So with this guest consent, you've already kind of touched on some of the things that should be in there, like being able to reproduce the media, you know, the content or whatever is produced from the interview in other ways. And I can say that, even for myself, I know that I have, I have utilized that because I give presentations at podcasting conferences. And in this last presentation I did at pod Fest, I actually took clips from various interviews to like, emphasize a point that I was making in my presentation. And because my guests have all agreed to that, I'm able to do that. And they don't have to be notified, I don't have to get their permission to use their voice and their image in this presentation. So for you listening, this might look like an E book that you want to put together. Or you want to use some information they provided in like a course that you're going to sell. And if you don't have their permission ahead of time, and I guess release form that could cause some issues. So

 

07:42

100%. And this goes so much farther than like you said, the guest consent for a podcast. One issue that I've had come up for a client is, you know, they have their group coaching program, they have experts come in, and there's no contract, because like I say, it's understood, these are the normal rules like, hey, the guest expert comes in, they train for an hour. And that's it. And that's the understanding between the parties. And that's, you know, what, that's actually 100% enforceable oral agreement. But now, that person that owns the program, they want to take all those guest expert trainings and combine them into another paid program. And I, you know, had to be the one to say no, like, that is 100% outside the scope for what was agreed between the parties, between you and all the guests, maybe you can go to them and say, Hey, this is the idea that I have, I have already recorded what you've done, can I use that? And if they say yes, then you're good to go. But if you don't ask for permission, or if you just go ahead and do it, that's not allowed.

 

08:48

Right? Well, and so I'm thinking I actually just scheduled a conversation I'm going to go into, like a business coach. They have a mastermind that they do, and she's invited me to come in and do like a 45 minute presentation on podcasting for business coaches, which is great, that makes sense. But yeah, there's absolutely no reason that she couldn't, or at least, you know, because we don't have anything in writing. I feel like this would be very easy for her to just be like, well, I'm gonna take this 45 minute, you know, masterclass that you just gave my audience and now I'm gonna turn it into like a paid evergreen webinar. So yeah, that's really good to think about these things. And so I know that the legal aspect of anything a podcast or business, literally anything can be super intimidating. But honestly, a lot of it is just here to protect us not to like get us in trouble.

 

09:38

Yep, yep. And that's exactly what I tried to get my clients to understand. Are you in my audience understand, because I'm a lawyer, but I quite honestly, I don't like conflict. And that's why I do the type of law that I do, which is protecting the businesses up front. I don't like the conflict. So I don't I don't actually Sue people. I don't even defend People in a lawsuit, I will send a cease and desist letter, I will respond to a cease and desist letter that a client receives. But that's pretty much the extent of it for me. But I also, I take it as far as I can to make sure the client is protected upfront. So right now, obviously, we're in the time of COVID. And businesses are opening back up. So what's going rampant for me right now is getting those businesses protected, that have a physical presence, they have to be protected from COVID liability lawsuits. So I tell them up front, and this is what happens a lot of times, like, Look, I can't say 100%, you are going to be protected, and you're not going to be sued. But at this moment in time, this is all you can do, right? The only thing you can do to protect yourself as much as possible. So that's really what I like to do is do whatever we can right now to prevent a lawsuit later.

 

10:56

Right. Absolutely. So you mentioned a cease and desist. And that is a conversation that you and I have had, because the reason that I contacted you in the first place was originally about copyrights, as I mentioned in the intro to this episode, and some of us who are in the business community might have the same situation where they have some copycats, and they have some people using their names. So when it comes to a podcast, what are some things that you should look at maybe sending a cease and desist for or that you might receive a cease and desist? About as a podcaster? Um, this

 

11:34

is such a great question. And actually, I just release my own podcast episode just about cease and desist letters. Not trying to promote the

 

11:46

please like, I'm already going to link to your copyright episode. So like, yeah, so let's throw this one in the mix so that they can get a lot more information.

 

11:54

Yeah, so my podcast is the legal printer podcast, all about the legal stuff legally protecting your business, and last week's episode was about cease and desist letters. So you know, what exactly are they? What do they do? There's a lot of people think that a cease and desist letters a court order, it has nothing to do with the court. But most courts, I'm not gonna say most I'm gonna say some courts will throw out your lawsuit if they see that you have not actually sent a cease and desist letter before filing the lawsuit. That's because the courts tried to eliminate unnecessary lawsuits. So they think, you know, we can get the parties talking, then the lawsuit is unnecessary. Anyway, so when to send one, many, many different instances, a lot of the times I am sending them for infringement purposes. So Copyright Infringement, Trademark Infringement, any type of infringement also defamation, cease and desist defamation. Anytime somebody is breaching a contract, sometimes we send a cease and desist letter for that, or a demand letter, basically, the demand letter saying, hey, typically, it's like, Hey, you need a PE, or, hey, you have to do this. That's really what a demand letter is. And then a cease and desist letter is, hey, you need to stop doing this. Right? So whenever you want somebody to stop doing something, that's what a cease and desist letter is. But the big thing to keep in mind with the letters is, this really gets the process going to notify the other party like hey, there's an issue, we need to solve this.

 

13:30

Right. So from a podcasting standpoint, I mean, even just like an online business standpoint, I'm thinking an example of this. Like, could you send a cease and desist letter? if, you know, for example, me, I have been podcasting as podcasting for coaches running my business as podcasting for coaches for you know, over two years now. Two and a half. So if another podcast started a show, like buy the same exact name, could we send a cease and desist in that situation?

 

13:58

Yeah, you could. Okay.

 

14:00

So what are some sample examples of cease and desist that we might receive? I am assuming one might potentially be using music. We don't have the right to use. Mm hmm.

 

14:10

Okay. Yeah. So music is a big one, especially for podcasters. And it doesn't matter how long the clip is that you play.

 

14:21

They're like, Oh, but if it's under 30 seconds, you're fine. And like, no, the answer is no. Yep. Yeah. So

 

14:27

a lot of people try to say, Oh, it's fair use if you only use three seconds, 10 seconds, 30 seconds. There is no such thing. Like there's no rule anywhere that says that. So you can't rely on that at all. So people try to say, Oh, it's fair use. It's fair use. Fair Use falls under some very limited circumstances. And quite frankly, I don't ever, ever tell clients to rely on it unless we know for sure. It's a good defense, right? Because with Fair Use Number one, it's really only applicable in the US. You know, some other countries do have fair use laws, but they're different. So not every country has various laws. So let's say, you know, you are using a song that was written by somebody who is in another country, and they don't have fair use laws, guess what, they can still sue you, right? And with fair use, you can still be sued, it's just a defense to the copyright infringement. And essentially, the Fair Use laws, the defense comes into play to decrease the amount of damages, it doesn't always relieve you of liability. So when you want to rely on fair use, just know that it's not going to relieve you of liability, it can really only decrease your damages.

 

15:51

Right? And even if it did, 100%, relieve you have a liability, like from having to pay any damages, you still have to pay an attorney and like go through the process of being sued.

 

15:59

Yeah, yeah, I actually just got done having that conversation with somebody they were talking about, you know, small businesses getting sued for COVID. And I was like, Look, they don't need to be sued at all. Like, if they get sued, they still have to pay money to the attorney. And that's going to cost them 510 2030 $50,000.

 

16:18

Right. What I see happen a lot of times with music is that they're like, Oh, well, I contacted the artist, and they said it was okay. But what we're not realizing in that situation a lot of people is that they may not actually have the ability to give the permission to use it. Because there could be your record label, there could be a songwriter. So just please, if you're listening to this, just make sure you actually get an actual license. There are tons and tons of music platforms where you can go and purchase royalty free music that you can use in your podcast, I will link to some in the episode or in the show notes for this episode. So really quickly, two final questions here. And one is, and I know this is a very broad topic, like you have done episodes on this on your show. So we're gonna touch base on it super quickly, copyrights or podcast, should people try to get them and how likely is it that they actually will succeed in getting the copyright.

 

17:12

So if the content is unique and original, you automatically have copyright rights, you don't actually have to have a registration can to have copyright rights. However, if you do have the registration before somebody infringes, then you're eligible for statutory damages. Essentially, that means it's easier for you to recover damages, and the other party has to pay your attorney fees in the lawsuit. However, I haven't seen a ton of people like blatantly copying podcast episodes. Now, what you have to be careful with is if you have a podcast based on will use you, for example, podcasting for coaches, if somebody else is marketing their podcast to coaches, and they have some of the same topics and ideas. That's not infringement. Ideas cannot be protected with the copyright ideas just aren't protected at all. So same for my podcast. Any other person, they don't even have to be a lawyer, they can have a podcast on legally protecting entrepreneurs or small businesses. That's not what copyright infringement is. But if somebody wants to go and take my cease and desist letter episode, and literally record it in their own voice, my entire episode that is copyright infringement.

 

18:35

Right. And I have seen some instances where podcasters have said that their episodes or at least segments of their episodes have been copied verbatim into like a blog post, or a news article, and not credited in any way.

 

18:47

Yeah. Oh, and that's a good one, even giving credit that doesn't relieve you of liability. And I think we're probably kind of thinking of the same thing. But I know of a popular podcast that Oh, yeah. Yeah. They talked about saw in their some of their episodes, some content that was only known by certain people. And it was not widely known. And, essentially, you know, this popular podcast, they copied the content of this news reporter. And in that instance, I don't know if that necessarily is copyright infringement, but I know the news reporter she was upset because that was plagiarism. So they have to know the difference between plagiarism and copyright infringement. So copyright infringement, it doesn't matter if you give credit, but plagiarism that is when you don't give credit.

 

19:44

Okay, good to know. So we will for you listening have links in the show notes to a lot more information from Andrea about copywriting and those sorts of things and of course, our podcast. So enjoy it. One final question here before we wrap up, is there anything that you see podcasters and events online business owners do that we have not already covered that could really be putting them, you know, at a pretty huge risk for being liable for getting sued, or just something that they're not doing that you really, really wish we would start doing.

 

20:16

Yeah, I think the biggest thing for business owners online business owners, his photos, do not use photos that you didn't take or that you didn't pay for, because that is copyright infringement. And that's the number one thing that I see business owners getting in trouble with is using somebody else's photos. And even if you think, Oh, I got it from this free stock photo site. Okay, but does that stock photo site really even have the rights to give you just like the, you know, the artist and doesn't necessarily have, you know, the rights to let you use it? Right, the free stock photo site may not have the rights to give you to use that photo for free.

 

20:57

And so what about so I have a hobby podcast gruesome gossip, where we talk about like, true crime, which is how I know what show you're talking about. And my co hosts when we started a social media accounts are like, Oh, well, there's all these accounts, you know, we can just share a bunch of memes and stuff. And I'm like, but we didn't create those memes. Like, we don't know where they came from. We don't know who did that. So like, we can't share anything that we don't create ourselves. And we kind of had a little bit of a back and forth on that she ultimately came around to my side, because I was like, Listen, this is connected to my business, I'm not going to be liable in any way. So was I in the right like I our means some kind of weird outlier? Or should we literally not be sharing anything that we haven't actually like purchased the right to use or created ourselves?

 

21:42

That is a very tricky question. Because it depends who and originally own the content. And it depends, like, how was it originally shared? How was this done? How is this done? So I'll speak specifically to Instagram. So if somebody posts a photo to Instagram, and you share it to your stories, or if you regram it, then use the actual regrab app, you're not screenshotting and then posting it as your own? Right, that's not infringement. Because Instagram says it's not that is within their terms of use. However, just because you are regretting, it doesn't mean that the person who posted it isn't infringing on that other person's copyright.

 

22:26

Right. Yeah. And then with those memes and stuff, like there's no way to tell where it originated, there's no way to tell who the very first person was to create that and post it somewhere. Yep. Unless they have a watermark on it.

 

22:37

Yeah. So means are really hard to say for sure. A lot of times, those are just a case by case basis. Gotcha.

 

22:45

Okay, well, that officially wraps up our time. I know we can talk about so so much more. But thank you so much for being on the show. And for you listening, stay tuned, I will have right after this transition, more information on how you can get access to Andrea's templates and something called the contract vault, which is pretty freaking awesome. Speaking as someone who is a member. Yeah, yeah, thank

 

23:09

you so much.

 

23:14

And that obviously wraps up my conversation with Andrea Sager, I hope that it was super helpful for you, and helps you to kind of breathe a little bit easier when it comes to legal things. attorneys are here to help protect you and not necessarily ruin your entire life. So please don't be afraid to reach out if you have additional questions for Andrea. And definitely, definitely check out her podcast. The link to that and all of the other resources mentioned in this episode can be found in the show notes at podcasting for coaches. com, click on the episodes tab in the main menu, and go to episode number 96. Now, the guests consent form or guests release form as I sometimes call it, that we mentioned in the episode can be found by going to the contract vault calm. Now the contract vault is another way that Andrea and I are connected because I am an affiliate for the contract vault. But as I hope you know by now, I don't promote anything that I don't participate in myself are very strongly believe in. And I am actually a member of the contract vault as well. So the contract vault is kind of exactly what it sounds like. It literally is just a shit ton of contracts that you can use in your business. When Andrew and I originally recorded this interview back in the summer of 2020, because I did go on a little bit of a hiatus that was unplanned. So I'm just now finally getting this episode out. She had at the time over 70 contracts. And I would imagine it's probably a bit more by now, because she's adding new contracts all the time, based on what the members of the vault are telling her that they want and need. I actually am a member of the annual plan. So I get full access to all the contracts as well as a Facebook group, where Andrea comes in once a month. And answers legal questions that people in the group and the contract vault have. But what I think is really, really cool is Andrea has actually opened it up. So it's even more accessible for people. And they're not paying for a lot of contracts that frankly, they're going to have no use for ever. And now she's actually created these bundles, where it's like industry specific. So for example, she has a podcasting bundle that includes the Terms of Use and Privacy Policy, so you can obviously use it on your website. It also includes a co host agreement, a sponsorship agreement, and that guest consent form that we talked about, these bundles are only $199, which I think is a crazy good price. Considering if you've ever had to contact an attorney for any reason, you know that getting them on the phone for 30 minutes, you pretty much can't do that for $200. And you're getting access to this bundle with five contracts, as well as that Facebook group where you can basically get free legal advice once a month. Now, some other industries that are in here are coaching, which I know obviously, it's going to interest A lot of you. And just to give you an idea that bundle includes the terms of use a privacy policy course terms, one on one coaching, and group coaching for contracts for all of those things. other industries are copywriting, a general one, which includes in addition to the terms of using the privacy policy, a general service agreement, which you can use with your own clients, and an independent contractor agreement, which you can use if you outsource any of your work to other independent contractors. Another bundle is in the health and wellness industry. So its Terms of Use privacy policy, individual health coaching, group coaching, HIPAA acknowledgement, and consent and medical questionnaire. There's also a marketing one, which covers people who do marketing and then social media management. There's nutrition coaching, there's even one for like personal training. So I'm telling you, there is just a ton of resources here. If you want to sign up for the contract vault, again, I am an affiliate. I do have a link in the show notes for this episode, so that you can make sure that your business and your podcasts are taken care of legally. And I hope to see you around the Facebook group for the members. Alright, that's gonna wrap up this episode. Make sure that you come back next week where I'm going to talk about why not editing your podcast is a very, very terrible idea. Alright, thanks so much. Have a fantastic week. And that wraps up another episode of podcasting for coaches. If you'd like to connect with me further, you can do so on Instagram at podcasting for coaches. If you know it's time to finally get serious about starting your podcast, go to podcasting for coaches.com and click on the work with me tab in the main menu to learn more about my one on one launch consultation packages or my self paced online course. And I look forward to seeing the podcasts that you create and put out into the world.

 
Britany Felix
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