How to negotiate podcast IP

KCRW's Independent Producer Project and Misha Euceph, founder and CEO of Dustlight Productions, hosted a discussion about podcasting and intellectual property Saturday, October 10. It was moderated by KCRW’s Kristen Lepore.

Misha encouraged participants to think through their priorities — from ownership to control and compensation — and ask relevant questions like Do I need a lawyer? or Should I get an agent? 

Here's an overview of what was discussed:

BEFORE YOU PITCH

Should you get representation?

Short answer, yes. Generally, agents make 10 percent commission on deals and lawyers make five percent commission on deals.

WAYS TO PROVE THE IDEA ORIGINATED WITH YOU

The checklist:

  • What materials do you have already? Examples: 
    • A treatment
    • A sizzle
    • A pilot
    • An entire season
    • Multiple seasons
  • Did you track your original contributions to the materials and ideas in written form (i.e. emails, google doc revision history, etc.)?
  • Is your podcast registered with the WGA or with the copyright office?
  • Is your title trademarked?
  • If you collaborated with anyone, do you have a WGA collaborators agreement or any other kind of verbal or formal written agreement that discusses ownership, revenue share and rights division among the collaborators?

IN MAKING THE DEAL

Questions to consider at the negotiating table:

  • Who owns your masters?
  • Who owns your distribution rights?
  • Is the entity asking to own or license your distribution rights?
    • For how long?
    • Where?
    • Distribution in what forms? (Only podcast or broadcast, etc.)
  • If they are licensing your distribution rights, what are they paying you as a licensing/optioning fee?
    • Does this amount change for every additional season?
  • If they are buying your distribution rights, what are they paying you as a buyout?
  • What’s your revenue share? What investment is the distributor making to get the percentage they’re asking for?
  • Are they putting up money for the production of a season? Are they paying you to write/host, etc.? 
  • Who owns your derivative rights? What investment is the distributor making to own those rights? (i.e. merchandise, live shows, TV/film) What can they do without your attachment?
  • Who controls the RSS feed?

At the end of the workshop, Misha offered up a few exercises to get you thinking more deeply about these questions. Here they are:

  • Write out your dream ownership scenario for a podcast on which you were brought on as an executive producer in the development stage.
  • Write out your dream ownership scenario for a podcast on which you were asked to be a host but the concept existed before you were brought on.
  • Write out your dream ownership scenario for a podcast that you created/pitched or that utilizes your personal story.

Here is a list of questions covered in the digital workshop.