Read Those Podcasting Contracts Carefully

Read Those Podcasting Contracts Carefully

Today’s edition of Podnews, splashes with a report about a podcast called Sex, Lies and DM Slides being relaunched by Spotify without the original hosts. One of those original hosts who created the show is upset and has complained on Instagram about the move.

I have no knowledge of this particular case nor the agreement that hosts made with Spotify when they signed with the company to make the podcast, and Spotify (at time of writing) had not responded to Podnews’ invitation to make a comment [Update: Spotify has responded now, and says the show is wholly owned by them].

But this is just the latest in a series of unhappy podcasters who have fallen out with their partners and ended up in dispute about who owns the intellectual property (IP) in the title, or whether they can take their old episodes with them when they leave.

However, it’s another recent dispute that I wanted to mention here that I thought was quite interesting, involving the journalist Kara Swisher.

Until recently Swisher had been employed the New York Times where amongst other things, she hosted the Sway podcast. But earlier this year it was announced that she would be leaving the Times and working with Vox Media and New York Magazine to launch a new title where she already co-hosts the very successful Pivot podcast with Scott Galloway. In the last couple of weeks Swisher’s new podcast On with Kara Swisher has launched with some of the first episodes featuring high profile interviews with people like former CNN anchor Chris Cuomo, Hillary Clinton, TikTok’s COO Vanessa Pappas and Maggie Haberman author of a new book on Donald Trump. Swisher gets big names on her podcast.

In the meantime, the New York Times has decided to fill the gap by launching a new podcast called Hard Fork presented by journalists Kevin Roose and Casey Newton. The new title, which launched today, is described as a podcast about “the future that’s already here.”

What has annoyed Swisher though is that the New York Times has repurposed the RSS feed of Sway to launch Hard Fork. What I mean is that they’ve taken the existing feed – along with all its subscribers/followers and rebranded it with new artwork. What’s more, old episodes of Sway have dropped off the bottom of the RSS feed. If you look at the feed right now, you just see a couple of short trailers for Hard Fork and then episode 1 of the title.

The old Sway podcast hasn’t been deleted from the internet. There is an RSS feed where you can get those old episodes, but it must be said that you’ll be doing well to find those episodes right now.

I couldn’t easily find them on the New York Times, and some of the top Google results just took me to the new Hard Fork podcast page on Apple. (Google searching within Google Podcasts got me to the feed).

Obviously when you do something like this, it does mean that many deeplinks to episodes will break, depending on how your podcast architecture works.

The whole issue was covered by Mediaite, although I’m not sure that their final line claiming that Sway is back in subscriber feeds is actually true. As a subscriber to Sway, I now only see Hard Fork in my podcast app, along with a couple of episodes that were downloaded to my phone but not listened to before the change happened. Old Sway episodes are in an entirely different feed.

Again, I have no knowledge of what was agreed between the various parties when they broke off their relationship, but this is surely something that’s going to continue to happen.

In a world where there are so many podcasts, podcast feeds with large numbers of subscribers/followers are going to continue to be a very valuable commodity after that title has finished production for whatever reason.

While it’s entirely possible for an RSS feed to be redirected to a new host and new ownership, typically with larger groups that’s unlikely to happen. Because so many titles that have “evergreen” subject matter have long shelf-lives they can continue to deliver revenues. A bit like old episodes of Friends still earning millions of dollars for their owners.

The exception tends to be when a really big (and well advised) podcaster retains ownership of their title, perhaps only giving them a licence for a limited set of rights to a group e.g. the ability to monetise a title for a set period of time, but no complete ownership. Examples of that might include Joe Rogan’s podcast agreement with Spotify or the deal SmartLess has with Amazon.

I do believe that if a company has invested in a podcast, paying salaries, production costs, marketing and promoting the title, providing sales and technical support, then unless they’ve agreed otherwise, it’s not unreasonable that they maintain ownership of the feed. And as such, they can do what they want with the feed.

Obviously the devil is in the detail with these things, and podcasters should read their contracts very carefully. Who does own the IP in the title following a deal? You may have created it yourself, fine-tuning it and launching it, but did you sell everything to the big company you’re working with? Alternatively, your erstwhile employer may have come up with the title and hired you, but you really made it work as a show and driven the title’s success. But that doesn’t necessarily mean you have any more rights over it than any that were or weren’t previously agreed.

If talent get lured away by another group, leaving their old RSS feed devoid of new content might not be very smart use of resources for their now former employer.

The New York Times has certainly decided that people who used to listen to Kara Swisher talk to predominantly tech folk might also like to hear Kevin Roose and Casey Newton talk to tech folk. (As an aside Swisher is actually Newton’s landlord! They’re friends in real-life).

There is a balance of course. If your company loses a popular football podcast host to another company, then putting a new arts podcast in that old football show’s feed might not be sensible. While subscribers are only one “Unsubscribe” away from removing a podcast from their app, by putting something that’s completely unrelated to the previous title in the feed wouldn’t be customer friendly. On the other hand, if you had a new football podcast coming to replace the previous title, why shouldn’t you re-use the feed, rebranding it accordingly? You might want to maintain the old episodes of the previous show if they’re still getting reasonable audiences, but in general I think most audiences would understand.

An interesting recent case in point was the BBC’s Americast podcast. The original hosts, Emily Maitlis and Jon Sopel left the BBC and launched a new title with Global, The News Agents. The BBC relaunched Americast with new hosts in the same week that The News Agents launched. A little bit of a spoiler – sure. And to be fair, this was the same title with the same subject matter, just new hosts. Indeed it’s Maitlis and Sopel’s new podcast has a different remit from their previous one, covering much more than just America.

Crucially, by repurposing a previous podcast feed, you’re giving your new podcast a head start. Why start a new RSS feed with zero subscribers when you can restart from an advantageous position?

I’ll reiterate something I wrote about earlier in the year – according to recent Ofcom research the average podcast listener only subscribes to 7.3 podcast series.

It seems positively wasteful not to utilise a popular old feed when so many podcast listeners subscribe to so few titles.

Of course, the only real beneficiaries of this manoeuvring tend to be big companies who have multiple things to promote. However, many podcast groups do drop at least one episode of a new title from their group in feeds of their other popular shows. Sometimes entire new series get dropped into existing feeds.

But I do think that repurposing old feeds is entirely valid as long as the subject matter of the new title isn’t markedly at odds with what went before it. It’s definitely a considered decision to be made. Many of us still remember the day we woke up to find an unasked for U2 album in our iTunes library! There are risks here, and they need to be weighed up carefully.

The key thing here for podcasters is to go into things eyes wide open.

Who owns the IP of a podcast? What happens to old episodes of a podcast when a contract or a host’s employment ends?

Just because you put your heart and soul into a title, it doesn’t mean you own it if you’re working for someone else. And even if you do maintain ownership of your shows, check who owns the feed. They might not be the same thing.