The internet’s usefulness changed how we accessed and engaged with traditional media, including radio, as it grew more deeply ingrained in contemporary culture. Today’s Everyday IP: podcasts are much more than just online, episodic radio shows; they have their part to play in the larger saga of intellectual property (IP).
In the middle of the 2000s, when podcasts first appeared on the market, they discovered a vast, untapped media space and swiftly grew to fill this new “ecological niche.” They covered various topics and formats, including comedy, travelogues, and current affairs.
Although there are now millions of them, podcast production quality and content still vary greatly. According to the podcasting information, Listen to Notes, there will be about 3 million podcasts available to stream or download by the end of 2022 on various platforms and websites. In this episode of Everyday IP, we examine the history of podcasts, discuss their value as intellectual property, and discuss the potential for IP conflicts.
The early years of podcasting, from radio waves to RSS
Radio employs terrestrial or satellite radio waves to communicate its material, whereas podcasts use an RSS web feed. That is where podcasting varies from the radio. At the turn of 2000, RSS technology was automatically introduced to total website changes, and it is second-hand to gather news feeds today. But, it is now primarily recognised as the file delivery format for podcast users’ audio apps. In 2000, Dave Winer enhanced RSS to include this feature.
After Apple added a podcast directory to its iTunes music and video marketplace in 2005, the first podcasts began to appear throughout the following few years. It is no surprise that popular early podcasts like “Daily Source Code” and “This Week in Tech” were tech-focused (the latter is now the flagship show of a multi-podcast network).
Of course, other early podcasts and podcasters were radio personalities. When the journalistic public radio shows “Radiolab” and “This American Life” started distributing episodes as podcasts, they did not change their objective but instead used the medium to deliver tales uniquely by using numerous narrators and non-diegetic music. In contrast, Dan Carlin, a former radio journalist, constructed captivating narratives on complicated historical themes ranging from the Punic Wars to the Münster Rebellion of 1534–1535 in his show “Hardcore History” using little more than his voice and modest sound effects. Since the middle of the 2000s, all three programmes have been in production. They have received millions of downloads and covered numerous top podcast lists.
Everyday IP issues surface
A “Wild-West, anything-goes” ethos dominated the early years of podcasting and still does to some extent because there are no established operators or broadcasting regulations. They are already found in the early designations for the medium. The word “podcast” was first used by British journalist Ben Hammersley in a 2004 piece in the Guardian newspaper; nevertheless, his two other ideas, while perhaps not as snappy, did capture the spirit of the time. While “GuerillaMedia” (sic) suggested a rebellious attitude toward traditional broadcasting’s monitoring and norms, “Audioblogging” highlighted more intimate, slice-of-life content.
Podcasts, which are ostensibly a combination of the words “iPod” and “broadcast,” quickly caused a stir among the IP community. Beginning in 2006, Apple repeatedly sent cease-and-desist letters to companies that used the word “pod” in the name of their organisations or products, including the media player programme MyPodder. The computer behemoth claimed that these names violated its trademarks for the iPod.
Apple did not attempt to trademark “podcast,” but it did try (and fail) to do so with “pod.” Their chances were higher than those of the obscure LLC that attempted it in 2005. The United States Patent and Trademark Office (USPTO) denied the application, citing the term’s Wikipedia entry and the mark’s merely descriptive nature as its main arguments.
In the early 2010s, a business by the name of Personal Audio harassed prominent podcasters for years over a dubious podcasting patent. In 2014, the USPTO defanged the patent by invalidating five sections during an inter partes examination. Since then, some podcasters have trademarked the names of their programmes, occasionally incorporating the word “podcast,” but none have been able to protect the words “podcast” or “podcasting” alone. (It is also important to note that copyright regulations cover podcast recordings.)
The rise of podcasts
By the end of 2014, podcasts had gained significant traction, with popular narrative episodes like “The Moth” and “Welcome to Night Vale” based on real-life events. However, even straightforward talk shows, whether between co-hosts or hosts with a rotating cast of interviewers, had a significant following.
It should be no surprise that the worldwide lockdowns experienced during the COVID-19 pandemic drove its production and consumption to new highs, given that podcasting is already firmly established in the mainstream. Over 1 million podcasts made their debut in 2020, roughly tripling the number from the previous year, and more than 726,000 did the same in 2021, according to Listen to Notes.
Everyday, IP possibilities abound.
Nowadays, there is a podcast covering any topic you can think of, from the history of country music to Hollywood scandals and corporate wrongdoing. The rise in licencing and intellectual property opportunities is a testament to the media’s popularity.
Many well-known podcasts provide branded shirts, mugs, tote bags, and other items for sale. Television series have given rise to some of them (“The Dropout” and “Homecoming”). In the past 20 years, podcasting has evolved into a fully corporatised marketplace with sponsorships, endorsements, and audience patronage.
Despite this change, the way of thinking about IP protections for Everyday IP podcasts is still in the wild west. It may eliminate Smaller creators from consideration if trademark registration for podcast names is ready passively.
Two recent incidents in the United Kingdom illustrate the risks of a devil-may-care attitude toward IP rights. First, the new tri-weekly podcast “High Low with Emrata” from model Emily Ratajkowski bears no resemblance to the earlier series “The High Low” from Dolly Alderton and Pandora Sykes in name and concept. However, the previous podcast’s lack of trademark registration and recent inactivity make it difficult for the duo to capitalise on the name recognition they established between 2017 and 2020.
But, Sydney Lima and Gizzi Erskine trusted music streaming service Spotify to trademark the name of their series “Sex, Lies & DM Slides, “Trademark approval was completely dry, only to be on fire as presenters before. They consequently lost ownership of the brand they had jointly developed.
The New York Times $25 million purchase of the “Serial” production company is an example of how important podcast IP is to traditional media businesses on the more back-end business side of things. And one example sticks out above all others on this subject: In 2020, Spotify spent $100 million for an exclusive deal with Joe that would last for some years.
Despite being divisive, Rogan’s podcast is top-rated. Even Spotify’s alleged outlay of $200 million appears worthwhile, with an estimated audience of 11 million listeners every episode.
Our podcast “Key to IP” is a beautiful place to start if you want to learn more about licencing opportunities or how to protect the branding features of your podcast.
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