The year-on-year increase in UK average viewing time per person for women’s sport on TV (i.e. female specific events such as The Women’s Hundred not mixed sports such as the Olympics or Wimbledon) was 131 percent in 2022 – see the Women’s Sport Trust report here for details.

The report recommends a focus, going forwards, on building visibility on all platforms, not just TV.

One popular medium to have seen a boom in recent years is podcasts.

According to Demand Sage, listeners of podcasts reached 424.2 million worldwide at the end of 2022. As such, the number of people choosing the listen to podcasts is growing rapidly.

An interesting article in the FT last week notes that whilst podcast revenue is growing, launch of new podcasts has dropped significantly between 2020 and 2022. The conclusion reached in the article was: “for podcasting to prove itself as a bigger part of the media industry, it will have to produce more blockbusters. Content is king”.

We are sure we are not the only ones gripped by the various documentaries following sports stars including F1, tennis and football to name just a few. Perhaps the success of this kind of content can be replicated in a podcast format.

As 2023 unfolds, businesses or athletes themselves may consider harnessing podcasts as a tool to refresh marketing techniques, expand audiences and create more brand or personal brand engagement. In this article we highlight some key points to consider coming out of recent issues/decisions:

• Advertising transparency and rule compliance considerations

The Advertising Standards Authority (ASA) has recently clarified the rules on podcast adverts in a complaint against an episode of Stephen Bartlett's “Diary of a CEO” podcast. The episode contained an advertisement for Huel LTD (a brand of food supplements commonly used by athletes). The beginning and end of the advert were marked by the sound effect of a page turning. Bartlett opened the advert with “quick one”, before describing the new iced coffee flavour of Huel. Huel was included in the description of the podcast as a sponsor. The complainant challenged whether the advert was obviously identifiable as a marketing communication.

The ASA concluded that there was no upfront wording that obviously distinguished the segment as an advert. The page-turn sound effects were too brief and ambiguous, having the potential to be overlooked. The sound effect was not obvious in indicating a change in the content or the introduction of advertising material.

The ASA reminded podcasters of Rules 2.1, 2.3 and 2.4 of the BCAP and CAP Code when upholding the complaint:

• Marketing communications must be obviously identifiable;
• Audiences should immediately be able to recognise the content as an advertisement; and
• Podcasters must make their commercial intent clear if that was not obvious from the context.

Read more about the complaint here: Huel Ltd - ASA | CAP  

(For those unfamiliar, the Non-Broadcast Code (CAP Code) sets out the rules for podcast advertisements. Similar to social media and video streaming services, disclosure of any paid advertisement should be made before the advertisement segment in the podcast episode. Payment includes any form of payment in cash, credit, giving a product or service for free or any other incentive or commission.)

• IP Infringement 

From considering the name of a podcast, to planning the content of a podcast, creators must ensure that they are not infringing the IP rights of others.

US model Emily Ratajkowski has recently launched her new podcast “High Low with EmRata”. This name is if not identical, arguably confusingly similar to successful chart-topping UK podcast hosted by Dolly Alderton and Pandora Sykes “The High Low Podcast”. Neither Sykes nor Alderton, whose podcast officially ended in 2020, have commented on the similarity of the name as far as we can tell. If the pair had registered a trade mark for the name in the relevant goods and services classes it would have presented a simple way to prevent others from using it, whereas relying upon unregistered rights is more costly and uncertain.

Relevant goods and services could include: class 9 (teaching apparatus and instruments including podcasts), class 38 (telecommunication services including podcasting); class 42 (services provided by persons in relation to the theoretical and practical aspects of complex fields of activities including hosting of podcasts), and class 41 (education and training which includes production of podcasts).

When choosing a name for your podcast, you should:

• consider undertaking clearance searches to check if the name is already in use in the same goods and services including registry and common law searches.
• consider registering it as a trade mark before you launch your show.
• consider using the TM superscript notice to build up acquired distinctiveness where a podcast name could otherwise be said to be devoid of distinctive character.

If a podcast contains artwork, pictures, music e.g. the opening jingle or background music, news clips, reading from a book or audio from another source of media, ownership of the rights or an appropriate licence must be obtained. Ashley Flowers, creator of Crime Junkie podcast, learnt this lesson in 2019 when accusations emerged relating to uncredited use of original reported material. The episodes were later removed from streaming platforms.

The best practice is to:

• make sure you have a license to use content that is not exclusively yours; or
• seek out content from royalty-free libraries.
  
  
• Digital Single Market Directive

The Digital Single Market Directive came into force in June 2019 with the intention of harmonising copyright law in the EU. The Directive applies in respect of all works and other subject matter protected by national law in the field of copyright on or after 7 June 2021.

Article 18 of the Directive requires member states to ensure that, where artists license or transfer their exclusive rights for exploitation, they are entitled to receive appropriate and proportionate remuneration, taking into consideration market prices and the value of the work overall.

Article 19(1) introduces a transparency obligation, requiring member states to ensure artists receive up-to-date information on a regular basis from licensees on the exploitation of works and performances. This information includes modes of exploitation, all revenues generated and the remuneration due on those revenues.

Whilst the Directive is not in force in the UK, UK based podcast creators should still consider it and be aware of the rules applicable in other member states when recording, producing and broadcasting podcasts across the EEA, including the steps they need to take to comply with remuneration provisions and transparency.

You can read more about the Directive here.

Further considerations

Whilst the above are some recent issues that have cropped up, more generally it is worth remembering to also consider:

• The risk of defaming someone. 

This will largely depend on the nature of the statement, the actual meaning and the nature and context of the podcast. Essentially comments that lower someone in the mind of the general public (subject to a minimum threshold of seriousness) and cause or are likely to cause serious harm (which includes serious financial loss for companies) could be classed as defamatory absent a defence. Even without malicious intent, you could still be held liable.

Creators and contributors should always assess whether:

• allegations are true and can be backed up by facts or evidence;
• there is a defence that could be relied upon
• the individual in question is likely to oppose the allegations made
  
  
• Privacy and data protection

Are there any other related issues around privacy or data protection that warrant further investigation?

e.g. What kind of material are you sharing? Who does it identify? Do you have the rights, consents or lawful basis to include reference to the people and details mentioned in your podcast?

• Contractual clarity

Finally, it sounds obvious, but in order to protect all parties involved in the podcast, it is important to have formal agreements in place. We regularly see scenarios of lack of contractual arrangements or lack of operative IP assignment clauses, which means that legal and equitable title won’t both transfer even if that was intended. Everyone from guests and sponsors, to editors and producers should understand their rights and responsibilities before working on or contributing to the podcast. Important terms such as payment, exclusivity, creative control, IP ownership, moral rights, rights to sublicence etc should all be clearly set down. Having legal relationships formalised in a written agreement will help to manage party’s expectations and to protect business interests should a dispute arise in the future.

Closing thoughts

Podcasts are an accessible, engaging and often cost effective technique for elevating brands. Before entering the podcast world, businesses or individuals should be aware of the rules surrounding content and plan accordingly to protect themselves from potential disputes.