Trademark vs copyright

Lisa Oratz has decades of experience in the field of IP law; she’s currently a senior counselor at the firm Perkins Coie (which is Descript’s law firm, full disclosure). Her first suggestion for the aspiring creator is to get clear on the difference between copyright vs trademark. 

“Copyrights protect works of authorship,” she explains. “So the way you express something: books, podcasts, music, film, software. Once it's fixed in some tangible medium, you have a copyright. You can't protect ideas or concepts, but you can protect the way that they're expressed.

“Trademarks, on the other hand, are about brand identity: how you identify the source of something. That could be a word, phrase, or logo that helps people identify a company or a product as emanating from a particular source.”

So the contents of your podcast are copyrightable, but the logo that lets people know it’s part of a podcast network is subject to a trademark. (There’s some overlap: the logo’s underlying image might also be copyrighted by its creator. But let’s try not to get too far into the weeds here.) 

Protecting your creation

How to copyright content

When you create something by yourself, you automatically own the copyright to it, no registration needed. But for added protection, and in case you ever need to bring legal action, you should register your copyright officially with the government. You can do that yourself; it usually costs between $45 and $65. 

How to trademark a podcast name or YouTube channel 

Registering a trademark is a more involved and expensive process. For that, Lisa does recommend getting professionals involved, to make sure you’re doing everything by the book.

The first step to getting a trademark involves doing a search to make sure no one else has already trademarked something substantially similar to your mark. You can do the preliminaries on your own, of course, or through a website like Trademark Clear. But before making a significant investment in a particular phrase, image, or idea, it might be worth having a trademark lawyer do a more comprehensive search. That will likely start around $1,000 and go up depending on the number of marks and complexity of the search.

Then you have to actually register your mark with the U.S. Patent and Trademark Offices. There are some fees involved with that process; having a lawyer help you will likely run you another couple thousand dollars. Lisa estimates that a simple trademark case usually costs around $5,000 total — though of course, that will vary depending on who you hire and how long the process ends up taking.

Once you have your trademark, it’s also important to actively protect it. Now, that doesn’t mean “you have to go out there and scour the earth” for anything that remotely resembles your mark, Lisa says. But if you see something, say something — ideally in the form of a cease and desist letter to the individual or company. Again, you can use the internet to help you draft something, or hire a lawyer to write you a template you can use whenever you need. 

Sharing the load

All of the above assumes you’re working by yourself. But the more people you get involved with your project, the more complex intellectual property issues become. Talk about who owns what early and often with any regular collaborators or co-hosts on your show. Make sure to put those agreements in writing, so you have a paper trail in case of any disputes down the line. 

But you should also be considering IP in shorter relationships as well. If you hire someone to create a logo for you, for instance, you should have them sign a work-for-hire contract, which grants you specific rights to whatever they make for you. 

You should also always have guests on your show sign podcast guest release forms. “It's really important to get releases from your guests so that you have the right to use their name, voice, likeness, and any images of them,” in distributing and promoting the show, Lisa says. 

You should also ensure that the release includes an assignment of all rights in the podcast itself to make sure that you have the clear right to syndicate and broadcast any episodes that they appear in. “I see this a lot of times, especially with newer podcasters,” Lisa says. “They forget that they need to worry not just about protecting their rights, but also about securing those rights in the first place.” 

No one gets into podcasting because they love drafting legal documents. And if you’re just starting a small, independent passion project, this may seem like too much to think about. After all, who cares who owns a show that might not ever make a dollar during its run?

But as the cliché says, expect the best, prepare for the worst. It's better to have safeguards in place that you never need to use than to get into a messy fight with a collaborator when there’s real money (or even just pride and friendship!) at stake. Take the time to protect yourself in the beginning and you’re less likely to have a disastrous end.