Podcast Cover Art Rights: What You Need to Know Before Launching Your Show With Gordon Firemark

This is Feed you'd Brand with hosts.

Tom Hazard and Tracy Hazzard.

Welcome to Feed you'd Brand. I'm Tom Hazard along with my co host, Tracy Hazard. And this is another episode where Tracy and I changed it up a bit. And I had a discussion with another podcast industry leader named Gordon Firemark. And it's interesting how this came about. I want to share just a little bit about this. I had an experience with a politized customer, and they told me about some of their plans for their podcast, and the hairs on the back of my neck started to stand up, and a little sort of metaphorical red flag went up in my mind, like.

Not so sure that's a really good idea. And I immediately thought of Gordon. And so I reached out to him, and then we had this discussion that you're gonna hear in a couple minutes.

Of course, I said, make sure you record it.

Oh, of course. And we realized, okay, this is gonna be an episode, and I'll just have it with Gordon alone. And then Traci and I will do the intro and outro and final thoughts as we often do on other shows that we're a part of. And let me just share with you the thing about Gordon. Traci and I have been in the podcast industry over a decade now. Wow. And as you spend a lot of time as podcasters out in the world and go to national events and sometimes local events, you meet a lot of other people in podcasting. And Gordon's one of those people. He happens to be from California like we are. We're not in the same city, so we couldn't get there. He's in la, and we're about an hour and a half south of la. But Gordon is. We've come to know him as a really good person, and he is a lawyer. And so he helps creatives, artists, and entrepreneurs and others achieve the dream of getting their messages out and making a meaningful impact with their podcast. For the most part. He has practiced media and entertainment and business law since 1992 and is often referred to as the podcast lawyer. So we're going to have all the information for Gordon and the links to him at our blog post for this episode. But just want to give you a little background. I mean, Gordon's been in the industry a long time, and he's an advocate for podcasters. He's definitely podcaster centric and advocating for podcasters. But that not only means helping them, it means helping them avoid pitfalls. Right.

That's what I want to say. And I want to interject here, because I think that the biggest part about Gordon that's really interesting, and I've interviewed him on the binge factor, so I've had the pleasure of talking with him, and we sat together at many events over the years, is that he gets the audience. So many people come into the podcasting industry and are like, oh, I have a great podcast now I'm going to sell them services, and I'll just expand my services into them. And they're not always aligned with what they do for a living. Obviously. It's very aligned. He's an entertainment lawyer who. But he's also really focused on this, the rights and management, the rights and clearances, as we're going to talk about today. And this is what interests me the most, though, is he gets that not all of the people he can help are going to be his clients. He gets that lots of podcasters are independent, don't have the budgets, don't even have the interest in, like, worrying about some of this stuff because it's a hobby. And he gets how podcasters are and what they think. And yet that doesn't stop him from serving.

That's a really good point. He definitely serves the community. He has a big heart. And like I said, I mean, to me, this is a very high compliment, even though I know it sounds mediocre, but it's not meant to be. He's a really good person, and that, to me, is a very high compliment. And I experienced that, again talking with him about this subject, and I was really pleased how interested and willing he was to talk with me about it, because he realized, wow, I've never talked about that on my podcast either. So that kind of surprised me. But really, I think, emphasizes how this is an important topic. We had a great conversation, really enjoyed it. I hope you do, too. Really has a lot to do with podcast cover art, rights and clearances. And you might have thought, do I need any rights and clearances? Well, most of us might not. However, as you'll hear, we definitely found a situation that would need it, and I hope you enjoy hearing that story. And we'll be back with some final thoughts right after that. Well, Gordon, it's great to see you again. It's been a while since we've gotten together. Usually, I guess it's in person, either at a podcasting event, something like that. And I know you've been a guest on Tracy's show, the Binge Factor, I think. But thank you for making time with me today because, you know, I Reached out because I had an experience with a customer that after all these years of podcasting and I don't remember how long you've been podcasting. For me, it's about a decade.

I got twice that in your office.

Twice that. Awesome. Great. And we've supported a lot of podcasters and I've never come across this issue before that seem to tread on some legal concerns for me. And so I reached out and that's why we're talking today. So thank you for that. But let me, I guess, set up for all the listeners and viewers about why I reached out. So have a customer who's actually an aspiring podcaster. He hasn't launched his show yet. He's one of these people that has kind of been in permanent potential for a while, and we've been nurturing him to try to get him to launch his show. And he's actually very, very close. Says he's going to launch it here within a month or so. And he had a cover art design for this show called One Relationship Away. And the original cover art just really has the text and it's a nice image, visual design of a bunch of people, like a stock image of people in business walking across maybe a plaza in a big city or something. And I think it's the idea of he's going to interview people and your success, I think, to him is One relationship away is the idea. And his original cover art didn't have any recognizable faces on it. And then he texts me and sends me this image for a different version. He says, hey, I got a new idea for my cover art. And he put his own face on the COVID art front and center. Still says One Relationship Away. But he flanked himself with four other people's images, two on either side of him. And I recognized Frank Shankowitz was one of them from Make a Wish Foundation. Another one is Dan Locke, who I know because he's a potato customer. He hosts a show on our platform and is a very, very popular entrepreneurial business expert and I think high level coach. He does all sorts of things. And I didn't recognize the other two, but I could tell these are pretty big people in business. And I texted him back and said, do you have permission to use their faces on your cover art? And the answer I got was, well, I've interviewed them on my podcast. I've had done video interviews with them. And I was like, okay, but I'm not so sure that you are going to be able to get away with using their images on your cover Unless you have permission. So that's the departure point and why I reached out to you. And I've never actually run across this before. So, you know.

Well, it's good that you did reach out to me, because this is one of those areas where the hairs rising up on the back of your neck was the right response in this instance. You know, it's a gray area, to be really honest. I think that it's probably not a good idea to make your cover art that way. Now, if you're doing individual episode art, that's different because you should feature, you know, I think it's a good idea to feature your guest for that episode. But if you, as the artwork that you described and you showed it to me, I think it has the potential to mislead the audience as to some deeper connection with these particular people. And that could be a kind of a brand infringement, especially if they have an exclusive arrangement with their company for the use of their name and image and likeness and things sort of false advertising kind of a vibe as well. And in many states in the US And a few other countries around the world, there's a body of law called the right of publicity, which is the right of a person to control commercial use of their name, image and likeness and other aspects of their Persona, like an athlete's jersey number and the sound of their voice in the case of a Bette Midler or someone like that. And that's related to the commercial use. So in the editorial context, using somebody's name, image, likeness, and so on is allowed because that's free First Amendment protected free speech. But as soon as you get into the commercial arena and the COVID art for the podcast is an advertising medium, so it's commercial speech. And the First Amendment doesn't go as far in protecting commercial speech as it does in purely expressive, artistic and political kinds of speech. So this is an area where I think the right advice was either get permission or don't use their photos on your cover art.

Now, I always tell my customers, even my listeners and viewers on my show, feed your brand. I'm not an attorney and I'm not offering legal advice, but I do have a lot of practical business experience, and I will come across these issues a lot. And I am always one to want to be on the right side of copyright, trademark, any other sorts of rights associated with intercourse. Podcasting. The copyrights are something we deal with a lot in maybe music that might be in our show in any way, and also in any videos that, if you do video versions on YouTube and images that you may use. So we've, especially in recent years, more recently, we've run across some companies, like if you even use stock artwork, stock photo from a stock photo library that you've licensed. Yeah, and we always. And we do this for our own show. We'll have stock images either in our episode artwork or a blog post for the episode or in some social share graphics. And we do this for our customers who do a done for your production. Also, we'll have license images properly and note those licenses. And boy, am I glad we did because we've been doing this for about eight years and there's companies that are kind of predators now with the use of AI doing reverse image searches that will go and say, hey, you're using this image on your website. You owe us money unless you can prove you have a license. And we're seeing that a lot more related to podcasting and now music. Also with Spotify and YouTube scraping all their stuff with AI looking for commercial music, if you don't have a license and can't prove it, you can get in trouble. I know that's different from what we're talking about with this cover art, but it's all related. Yeah, it is related. And it's always on my mind. And so what I thought when I saw, I was like, whoa, this person. Are you trying to say these people are endorsing your show? Because to me, putting on the COVID art is really a implied endorsement. They're letting you put their image on your cover art, so they must endorse the show. That would be hard to, you know, hard to counter.

Yeah. I mean, and it's interesting because it's actually an. An implied endorsement in both directions. They're endorsing you by. Well, you're implying that there's an endorsement of you by the use of their photo, but you're also endorsing them and cover art. You know, hopefully you're not changing your cover art for your podcast every six months or year. But what happens if one of those people on your cover art for some reason ends up on the wrong side of a me too allegation or accused of a crime or embezzlement, you know, all those kinds of things. Now you've got his photo on 100 episodes of your show. And so I think it's just this is probably a discretion is the better part of valor scenario.

You're so right. I hadn't thought about that aspect where it just would end up being a hassle and trying to Scrub that from all your past episodes and everywhere you may have put it out if you needed to or wanted to, was not so easy.

Yeah. You know, in legacy media, film, television, those kinds of things, there's a very complex protocol for what we call clearance. And it's the process of checking every single thing that shows up on screen in the audio or whatever it is, and making sure that the proper permissions are there or that there's a legal excuse why we don't need those permissions. That goes for the copyrights and the fair use and the trademarks and the references to real people living or dead and, you know, do we. Is there a defamation claim coming or privacy stuff and these right of publicity things. It's all part of this process where, you know, television shows have lawyers on staff who do this stuff, radio, and radio has staff lawyers as well. And the film industry, I mean, you know, I. I work on films quite a lot, and it's a big part of the job for me. Podcasters don't have the budget, the resources, the time, the energy, or the inclination for any of this.

The.

But they really should.

I think that the average independent podcaster who launches a show is not really aware of the dicey waters they could be wading through if they're not aware and then paying attention to these things. Usually I find most podcasters think about permissions like, hey, when you get a guest, making sure you get the permission that you're gonna publish their audio, maybe publish their video, share it on social media. And my booking form for my podcast covers that. Now, it's not a paper in writing, but they can't actually book an appointment unless they agree that they're going to be recorded, number one, and then it's going to be published. So I always think it's good to set up proper expectations for that. But then this is something that, you know, for the COVID art and some of the other potential copyright or intellectual property, you know, issues out there. I think podcasters, people, general, if they're going to start a podcast, they think, well, it's wonderful because I can say anything I want. And YouTube, if I'm not going to put it on YouTube, YouTube, chant, shut my channel down. You know, they can't censor me. And that is the wonderful thing about podcasting. I do love that it is a safe haven of free speech in this world. Personally, I really. That's one of the reasons I love podcasting. And I've never, ever seen a podcast app take somebody's content down, at least yet in my experience, because of what somebody says in their show, there is the whole explicit, non explicit guideline that is just putting parents on notice that they're going to listen when little ears are around. I really is to, for mature subjects. But YouTube I think is one of the more strict places where if you have some sort of content that runs afoul of their rules or guidelines, establish that they have reserved the right to remove your content. And so that, that we all have to deal with. But this whole issue of somebody that might, you might be using their image without permission, I don't know. Usually that would present itself. Somebody, you get a call from an attorney, from someone who represents someone, then they I guess make a demand for you to stop using it. And if you don't, they probably would just sue you is probably their recourse, I would imagine.

I just had a call with a podcaster earlier this week who has been sued by his former co host because they split up the partnership and went there. Well, they sort of agreed to go their separate ways, but then the co host said and take down all the old episodes, 170 some episodes of the show. You no longer have my permission to host that material. And there of course was no written agreement between them at the beginning of things. So this does happen. And you know, a lawsuit is an expensive, time consuming, headache inducing way of dealing with a problem that could have been dealt with on a two page contract at the beginning of things. So I call that a podcast prenup and I think it's a great idea. But yeah, you know, I want to go back to. You were talking about the platforms and not seeing the stuff get taken down. And that's because there's a law that says they don't have to. They are given a certain level of immunity under what's called Section 230 of the Communications Decency act that basically immunizes them for defamation and privacy and everything, not intellectual property kinds of claims. And so the claim comes directly to the creator of the podcast episode who posted it. And as long as the YouTube or the Pandora Spotify, whoever keeps the thing up, you're continuing to be exposed to that liability even after they've been asked to take it down. So no, this is, you know, I think there are a lot of folks who start a podcast sort of as a hobby and that's fine and that's great. And if you're not getting big and you're not hitting lots and lots of listens and downloads and things, and you don't really care if somebody says, hey, take it down. You just take it down and you. And you go on. I guess that's okay. But I think a lot of podcasters nowadays are getting into it as a part of their business, an adjunct or marketing arm of their business. And so they're putting an investment and expecting to see a return on that investment from the work that they're doing. It's time, energy, money, and all that. And if you're not going to treat it like a part of a business, you know, you're not going to put up a billboard without checking to make sure it's accurate and it's not causing any problems, and probably not using anybody's photo without their permission. Why would you do that with a podcast?

I agree. You know, first of all, the whole sort of podcast divorce, if you will, from co hosts is a very hard lesson I'm sure they learned. I've experienced similar things, sure. With a customer who interviewed a guest on the show, published an episode, was out for six months, and that guest went through a divorce. I guess they own the business with their spouse. Yeah. And the spouse was mentioned in the podcast and got all upset and caused a huge stink. And the guest was asking the host, can we please edit that podcast and take out any reference to my wife or whatever. I mean, there wasn't a lawsuit, but I mean, I've experienced some things where people get really upset when things go south. So I agree. Setting up good expectations, good guidelines, an agreement going in is going to save you a lot of headache later.

And that scenario does sort of flip the script a little bit, too. You know, just because you have the legal right to continue airing an episode and using people's names and image or whatever and those kinds of things doesn't mean you have to. If someone comes to you and says, you know, look, this is going to cause me a real problem. My. I mentioned my spouse and things aren't going well, and the spouse is unhappy about this. Can we edit it out? You do the right thing, you know, unless it really dramatically changes the whole meaning of things, you know, you can still be a human being about it. Just because you have legal on your side doesn't mean you have to be a jerk.

That's true. And also, you know, I think the law of reciprocity is going to come back to at some point on that. I definitely think if you can have a little empathy for that person and what they're dealing with, it probably, even though you could say, no, I don't need to it's probably not in your best interest. Another similar thing, there was a business owner who I really, I don't know if I don't want to say idolized, but I really respected and sort of one of the people I followed in business thought he was very intelligent in business, had a podcast, we produced it. And I would want to attend any event that he was at near me because the guy was a tremendous speaker and had a company that from all outside appearances was a Rocket Ship Inc. 5000 company a couple of years in a row. And so I had interviewed him on my podcast, I think more than once. And then his company gets raided by the SEC in December of 2019 and he ended up being prosecuted for running a Ponzi scheme, at least according to the sec. They said it was a Ponzi scheme and is serving federal prison time now. And so that's one of those things where, yep, I think we're going to take down that podcast episode because it's not really good for my brand to be associated with somebody who is serving time in federal prison for wire fraud, among other things.

Joined the Feloncast with Tom.

That's right. So I do think this is not to scare every independent podcaster out there to worry about these things. It doesn't have to mean have to spend a lot of money to protect yourself. If you're a podcast, you just need to be aware, I think, of all these potential pitfalls and make some good choices to protect yourself. And if you don't know, my suggestion would be ask. Like this discussion didn't really ask me if there's a legal problem with this one. Honestly, they just said, what do you think of my cover? And I'm like, oh, I'm not so sure you're going to want to do that. So he didn't really wasn't asking me for sort of that the way he thought he was. But when I see something like that with a customer, I'm not going to require them to do one thing or another. It's his podcast. He's on his own. If he wants to publish that podcast with that cover art, I'm not going to block him. That's not my role, I don't believe. Or our role at Pottiti. I'm not going to be the arbiter of what you should do or shouldn't do, but I'm going to let you know what I think. At least you have some things to consider.

But that's the real argument for working with someone who is a professional in the field because you, you know, look, if you're making television or radio or films and things like that, you presumably have gotten some training and learned the ropes and you're working with a lot of a big team, podcasting. I mean, the wonderful thing about it is it's such a level playing field. It's so easy with low barriers to entry. But that means that people with no experience, training and background to ask these right questions are coming into the place and they just don't have the judgment to apply in the first place. So working with professionals is how you substitute somebody else's judgment or at least get advice and things like that. You don't have to necessarily hire a lawyer to know that question exists. But I certainly appreciate you bringing the question to me so we could talk about this. Well, hopefully more people will have the news.

I hope they will too. I would like to, while we're together, just ask you one more thing about how you feel about AI generated music, images and things for use in podcast. We're viewing them as much less of a hassle down the road because our research tells us they're not copyrightable if you have music generated by AI and images generated by AI. So they're a little safer inherently, I think, or free from any potential copyright issues in the future. So I'm just curious if you've thought on this and what you might have.

Well, yeah, broad strokes. I think what you said is fairly accurate, but there's quite a lot of nuance in it. Actually. The question of copyrightability is one side of this. And you're right, the courts and the Copyright Office and most governments, most countries have said if it's purely generated by AI, that is, you know, you just made a prompt and went and let it do its thing. It's not going to be entitled to copyright protection because the law requires a human author. Authorship is a human activity. There have been a couple of cases and situations now where with enough level of prompting and manipulation and things like that, that's considered enough authorship to entitle someone to copyright in the original components they brought to it. That particular case involving a piece of artwork called a Single slice of American Cheese anyway.

Recently came down. But there's a few other angles to this thing about. First of all, the problem with using that AI generated material because it's not copyrightable is if you make that piece of music sort of your brand for your show, like an opener for the show, someone else can come along and use it too, and you have no recourse Right. Maybe there's a trademark argument after a few years of use and things, but really. So it may not be the best thing to use AI for branding kinds of content. And that would go for logo designs and things like that on the images. If you ask an AI to generate a picture of Darth Vader in a Spider man outfit, you're still using Darth Vader and Spider Man. So there's copyright issues there. And that points us in the direction of, well, how did the machine get that input in the first place? And there are about 30 different lawsuits going on over these questions right now that we don't have answers yet. The courts and you know, they're going to be wrestling with it for a few years. And the trouble is that if the machine outputs something that is too substantially similar to someone else's original work, then that original author, they don't sue OpenAI or Claude or whatever. No, they come and sue you. The person who rebroadcasts something that's too close to theirs still could be copyright infringement. So as wonderful as these tools are, and I really do like them and I think they're very useful, you really do have to be careful and curate how you use, use them, exercise some editorial discretion and more of these judgment calls that we were talking about, and certainly for little underbed music or a sound effect or thing, these are great an image. In fact, I can ask the open AI, not the opening, what's it called, ChatGPT to generate a cartoon of me. It still looks like me. It's my likeness. So these same issues that we're talking about with his artwork still exist.

That's a really good point that I hadn't been thinking about the music thing. I think that somebody else could generate the same piece of music if they do the same prompts, maybe. I think some of the AIs say they're not supposed to do that. They're supposed to generate a different one.

With the same prompts.

But that wouldn't be much different than 2 of us buying the same piece of royalty free music license from Premium Beat. Right. Where we each would use the same exact song, maybe in that case. But the image thing, with treading over other copyrights, just because you ask it to create an image and it can or it will again, doesn't mean you should, I guess. Always so.

And the music can do that too, where it just. It sounds too much like ACDC or whatever. I always go to ACDC as my example.

You know, those are really good things to think about. I too am very excited and bullish on AI in general for podcasters. I'm more in favor of doing that than buying stock images and having to deal with predators that come and try to make you pay or threaten podcasters if you use. Because we have that. We people use them on the website. There are these predators that say pre have a license or else you owe me a thousand dollars. And that's a hassle. So anyway, trying to get away from that.

But can I say something about that actually?

Tom, please. Yeah.

You know, if you do get that letter from one of these, there's a particular law firm that does a lot of these and there's a couple of companies that sort of do rights management for images and things. If you do get that notification, don't be too hasty to respond. They are offering often a sort of nuisance value settlement that is less than you will pay a lawyer to fight for you on these things. But I've had some success dealing with responding to them and getting them to either back off or take much less money. So it's worth getting a little advice, you know, and obviously don't use images you just find on Google Image search. That's not okay, right?

No, no, definitely not. No, I agree with you. I've. We've dealt with them as a company because, I mean, I don't even. We've used just tens of thousands of images in some of the blogs we create for podcasts. And there's one company in particular called Capitrack out of Germany that is one of these predators. And I found when you actually have a license, they close the case. It's not worth it to them to try to prove you didn't have a license when you produce one. I mean, it doesn't make any sense, but I guess if you didn't get a license, you're right. That would be a lot less expensive than even responding to a lawsuit, wouldn't it? Because it would probably cost you several thousand dollars to just.

So the other lesson is, when you get that license, make sure you have record keeping. Keep a folder with those licenses organized in some way. You'll be able to retrieve it so that you can prove your case quickly and be done.

All right, well, thank you for that. Very happy to hear your thoughts on that. And I hope everybody listening and watching is not getting too nervous. Really, that's not the point. It's just that, hey, we're just saying make sure you're aware of the things that you're doing with images that you have the permissions that you need, if you need them, or make different decisions where you maybe don't need those permissions. Just make sure you're completely aware of all your responsibilities. I think really as a podcaster and putting your content out there because you don't want. Want to come back and cause you trouble on this thing that hopefully you're really enjoying doing, recording, and bringing your unique message to the world, right?

Absolutely.

Yeah.

The thing is, the reason both of you and I do what we do is well informed, is well equipped and well protected. So we're here to provide the information. I hope you use it wisely.

All right, Gordon, thank you so much. Pleasure to talk with you today.

Me too.

And I look forward to seeing you again soon.

Sounds good, Tom. Thanks.

So, Tracy, on feed, you'd brand we so rarely interview other people separately. I'm really curious to hear what you thought of my discussion with Gordon.

Well, I don't think it was really an interview. It was a discussion, a conversation about a topic. And I think this is really a good use of interviewing. Right. Like, if you want to think about it, it's like we're going to have an expert on that we know and trust. We've had on before, and we've done that, like, basic interview stuff. I mean, you know, we've gotten through this, like, who are you? What's your show? How do you do? That's what the binge factor was for. But I thought, I really was so eager to hear his perspective on this, and for him to use that term rights and clearances was not. It raises it to this level, that of professionalism, that so many podcasters need. We need to have an awareness of this professionalism requirement that it is when we want to play ball. I hear it all the time from our podcasters, and they're like, oh, I want to be like this podcast host. And they have millions of followers, and then they have all this money and a production staff and all that other stuff. And I'm thinking to myself, you got a long ways to go. And then they turn around and do stuff like knock off cover art and emulate them to the point that they're getting themselves into hot water.

I don't think the average independent podcaster realizes sometimes there are lots of areas of podcasting where you can wade in very risky waters, whether it's not having proper permissions to use the music you're using on your show or not having have really gotten permission from your guest to broadcast something, you know, put it out There in perpetuity. You and I had an experience very recently, I believe, with one of the old shows that you were a host on that I wasn't a part of, where a guest came back and really demanded you update something about them that they didn't have the right to ask you to do.

Right, yeah. So it was an image of them that they sent me and put on into the form. So we have a form. Tom mentions it in the discussion with Gordon. We have a form that you fill out and you check all the boxes that say you're accepting this, but you also submit your own headshot and you submit your own bio. And so we then ingest that, use it in our system, use it to promote the episode. And it's stays as a part of the blog post. They wanted like to no longer have him in black and wanted him in white or something like that. I don't know what it was, but the image wasn't all that different and they wanted me to update it. And I was like, this isn't a show. We haven't run it since 2022. Why do you need me to go through all that trouble? It's expensive and it's time consuming and it's out there in all the social media posts. It's out there in all this other places. Like, why do you need me to fix this? And when they came back, they threatened me and I said, that's it, you're done. And I deleted the post and everything was gone. And they lost all the publicity, which I had the right to do. But I wasn't gonna take a threat as I was still in this conversation trying to understand, like, why should I waste my time? Because you want it to be different, not because it's necessary. It's not a mistake.

Well. And you actually had all the rights where you could have told him to go pound sand.

Well, that's what they tried to claim. They tried to claim that I didn't have the right to use the image to begin with. And I sent them back the clip.

Well, then you pointed it out to them. And I mean, that's sort of a little different situation where I think be careful what you demand or ask for too, because while you had the right to use it and really it was going to cost too much time and energy for you to deal with it and your time is very, very valuable to change it on a show that's dormant. It's an old show that you're, you know, it's still out there, but you don't publish new episodes of it. So you weren't going to spend a lot of time and energy on this to help someone else. And then the easier path for you is just, oh, I'm tired of hearing about this from this person. I'm just going to delete the episode because it's really not that important to me. And then that person lost some free publicity as a result.

Yeah. But in the case if it was cover art, and this is something that really, I think is important to really what you and Gordon were talking about there is that cover art gets proliferated everywhere.

Yes.

And that makes the damage that you do if you're wrong a lot more troublesome. And that's really where I think you can, you know, because it is definitely a commercial purpose. When I'm doing episode art and I have a picture of that person on my episode art, I'm promoting them in that. Not my show, it's my show, but it's them in that particular episode. And so they asked for that. Right. That was the publicity that they agreed to. But by putting them on the COVID art, I think you really run into this place where now, in a sense, as far as they're concerned, you're making money, you're making publicity for your business, your commercial business, on their celebrity, on their authority, on their whatever, you know, their brand awareness and not yours.

I think the term I used when talking to Gordon was you're kind of trading on their name. And I'm not a lawyer, obviously, as I said when I was talking with Gordon, I'm not a lawyer, but I have a lot of experience with legal situations. I've sued others in business. I've been sued in business. Believe me, folks, it's not fun. You really don't want to go there unless you have to. And then, you know what? Early in our career, Tracy and I, our company, we sued one of the biggest companies in the country for patent infringement on something of ours. So, I mean, we're not afraid of doing this if it's worth it. But for most of us in podcasting may not be really worth it, but it really shows the importance of making sure you've got proper permissions for things. People are going to, you know, if you're using a royalty free music, somebody who created that music and sells it on premium beat or wherever they license it through is going to question, hey, do you have the right for that? Then they're going to come and knock on your door or have some other representative knock on your door and make you Prove you've got it. And even if you licensed it years ago and you don't have that license, guess what? It's going to be a problem for you. You've got to make sure you keep all of these things organized. Your permissions from your guests and anybody else you're using in your testimonials. You need a proper, you know, if you have testimonials in your business related to what you do, you got to have proper permissions. And obviously, if you're going to use someone's image or likeness, I think in a lot of ways it's common sense. But I'm still surprised how many podcasters come up to me and say, well, I'm only using less than 10 seconds of this music. It doesn't matter. I can still use Eye of the Tiger, you know, Survivor, can't I? No, you can't. And again, I'm not a lawyer, but if Gordon were here, I'm quite sure he would tell you the same thing.

No, you can't. But you know, here's the thing. I think that this rights and clearances is a big issue. And you touched on this at the end when you started talking about AI, and I was so glad you talked to him about that. And I like his perspective on it. I think that the real crux of AI coming into this is that it's not just name, image and likeness, which is a very common sports term right now because they allowed collegiate level athletes to own their name, image and likeness. So if you've heard about that, that's why you've heard it more recently in the news in the last few years that's been going on. But I think every one of us is going to have a right to our name, image and likeness at a higher level within the AI system if we things keep going somewhat the way that they are and there's a lot of big lawsuits, as Gordon mentioned, that have to play out and there's a lot going on there. But I think there's a really big deal here to trying to figure out how to scrub that, how to make sure that your rights are being maintained and make sure that you're putting yourself out there in a way that you want to be perceived. And I think that that's what we really have to go on is this idea of, do I have this guest on? Because I want to be associated with them and if a long term association fails, is it going to be easy to scrub and pull it out of my system? Is it going to be hard to do, or am I always going to be associated with them? And when you do that at a cover art level, at a top level, that's going to be not only a little bit sticky from the law, even if it's a little bit gray, but it is sticky in terms of not good for you. If I see that and think that person did not give you permission to use them or, you know, in the case, I mean, that person's gone. They're dead. So you can't possibly have gotten the rights from.

Oh, yeah, no. Frank Sinkowicz, right, From Make a Witch Foundation. Believe me, folks, even though he has passed away, what, two years now? I think even though he's passed away, his foundation and his name lives on the net. And if you think that our organization is not going to protect that, that's a naive position.

That's how they're making their money.

Right?

So I think, you know, from that standpoint, you could get yourself in a hot rod, but also thinking about how it's perceived. If I see that you're doing that, it's kind of. It's a little bit. I'm going to call it like entrepreneur 101, entrepreneur 1.0 rather. And that is like the old school. If you do not have enough authority yourself, you trade on other people's authority.

You see it all the time with authors that, you know, oh, I co authored this book with so and so. No, they rented his name so that you would get more attention on your book. I mean, but you paid for it, right?

But today we all are wiser. The consumers who want to work with those, the business to business, we know how this system works. We know how those authors work. You know, we know how those stages work. We all know that they're paid. That the model of it doesn't mean that you have the authority. And I actually think at the end of the day, it hurts your credibility when you do something like that. So I don't think it's in the best interest for you to even wade into those waters and make somebody's hairs on the back of their neck, as Tom talked about at the beginning. Right. Go off. It happens as a listener as well when we are choosing a show. So make sure your cover art is compelling. It invites them in, it's bringing them to you. But get your picture off the COVID art too. Like, that's terrible. Anyway.

Oh, my gosh, that's a whole nother episode. Don't get me started on that or we'll be keeping people here a Lot longer. But, Tracy, I couldn't have a discussion with Gordon without asking and mentioning AI, especially AI images. Now, for all you listening, Tracy is at Potatoes. She is our AI expert and specialist, and she's the one who's been doing the advanced research and testing of AI images. And Tracy, it seems like you've been having a lot of fun with that, especially lately. I think the episode isn't the episode with podcast versus YouTube, the one you showed me recently. It's a very cool new image. Or is that not it? Was it another one?

No, that was just last week's episode. That was just the one that we did about watch time hours and.

Oh, watch time hours. Okay. Okay.

Yeah. I mean, look, I'm having fun creating graphics quickly and I have a team. I could be using them, but I'm not because I'm collaborating with the AI. And that's what Gordon was talking about when he was saying that the copyright, the. These are still copyrightable because I, first off, I add some of my own elements to them. At the end. I don't just go straight from the image that was given me, so I'm adding the human element to them. So they are human authored, but it's a collaboration in how I'm writing them and getting the inspiration and then making adjustments to them. It's a collaboration of design between me and Gemini, in this case, me and the AI. And we're having fun with it. So that, I think, is something to be thought of. Like, I think at the end of our day, our images are copyrightable because of what we're doing. But I'm not going to bother. Like, this is not something that's worth my time and energy to do for a podcast episode. Right? Not for episode art. It's definitely not worth it, but I might do it for my cover art. And so if you're thinking about that, I think really generating an AI background image and doing some of these things, but having the human element in it could be very valuable to you and then still make it copyrightable in case that's what your future and what you'd like to do with it or.

And Gordon has always been an advocate of trademarking your podcast name. And if you're ever interested in doing that, he's got very reasonable pricing for that. And I'm not trying to sell him and pitch him necessarily. I mean, I don't need to. I think he sells himself. He's really smart guy. What I mean is, I'm not getting anything out of it by telling you This. I just know that if you're a podcaster and you're wanting to trademark your name, he's got a very reasonable rate to do it. And we got the link to his website and the blog post@podcastregion.com for this episode. And we, I will admit, we've not trademarked our podcast name. We have filed and gotten a registered trademark for our company name, Potatoes. That was very important. Got that years ago, really relatively quickly. These things don't necessarily need to take that long to do it. But these are all things I think that independent podcasters, especially ones that are podcasting in any relation to their business, need to be aware of, need to consider. Last thing you need as a business is a nuisance lawsuit from somebody you didn't expect, nor do you really want to have to chase somebody else.

Well, and I think that that's the best advice that Gordon gave is like, you know what? Not asking, not consulting is way more costly sometimes than just paying out at the end. So making sure that if you do get any kind of cease and desist, consult someone, it could save you a lot of money. And Gordon's one of the best people that I would trust, the number one guy I would be referring people to. So make sure you go on out there, check out his website, check out his podcast. It's fantastic and it is full of such great information and helpful tips. So make sure you check that out as well.

All right, well, we'll see you next time. This has been Tom and Tracy on feed. You'd brand heard something valuable today but.

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