Everyday IP: The history of podcasting (so far)

When podcasts first entered the scene in the mid-2000s, they found themselves before a vast, unexploited media territory and quickly expanded to fill this new "ecological niche." Their subject matter and format were wide-ranging: everything from current events to travelogues and comedy.

Though podcasts still vary widely in production quality and even more so in subject matter, there are now millions of them. As of late 2022, approximately 3 million podcasts are available to stream or download across various platforms and websites, according to podcasting information database Listen Notes. In this installment of Everyday IP, we review how podcasts grew and address their value as IP, as well as how IP disputes can arise.

From radio waves to RSS: Podcasting's early years

Podcasting differs from radio in its delivery system: Radio uses terrestrial or satellite radio waves to transmit its content, whereas podcasts use an RSS web feed. RSS technology was implemented at the turn of the millennium to aggregate website updates automatically and is still used to gather news feeds today. But it is now predominantly known as the format that delivers files to audio apps for podcast listeners. Dave Winer added this capability to RSS in 2000.

Over the next few years, the first podcasts started emerging, galvanized by Apple's addition of a podcast directory to its iTunes music and video marketplace in 2005. Given tech enthusiasts' role in early podcast development, it is not surprising that some prominent early podcasts were tech-focused, including "Daily Source Code" and "This Week in Tech" (the latter now the flagship show of a multi-podcast network).

Naturally, other pioneering podcasts and podcasters came from radio. Journalistic public radio programs "Radiolab" and "This American Life" did not alter their focus when they began releasing episodes as podcasts but used the format to present stories differently, adding multiple narrators and non-diegetic music. By contrast, former radio journalist Dan Carlin's show "Hardcore History" used little more than his voice and subtle sound effects but created gripping narratives (eventually in hours-long episodes) on complex historical topics ranging from the Punic Wars to the Münster Rebellion of 1534-1535. All three shows have been in production since the mid-2000s, have amassed millions of downloads and appear on multiple lists of the best podcasts of all time.

IP issues emerge

With no established operators and a total lack of broadcasting regulation, a "Wild-West, anything-goes" mentality pervaded the first years of podcasting and still does to a certain extent. This is even reflected in the early terms applied to the medium. While British journalist Ben Hammersley is widely recognized as having coined the term "podcast" in a 2004 article in the Guardian newspaper, his two other suggestions, though perhaps not as catchy, certainly distilled the Zeitgeist of the era. "Audioblogging" reflected more personal, slice-of-life content, while "GuerillaMedia" (sic) indicated a rebellious attitude toward oversight and standards of traditional broadcasting.

Ostensibly a portmanteau of the words "iPod" and "broadcast," it took little time for podcasts to raise eyebrows in the IP world. Beginning in 2006, Apple filed multiple cease-and-desist letters against businesses using "pod" in organization or product names, such as media player app MyPodder. The computing giant argued that these names infringed on its iPod trademarks.

Apple also tried (and failed) to trademark "pod" but never attempted trademarking "podcast." Their luck likely would have been little better than the obscure LLC that tried doing so in 2005. The United States Patent and Trademark Office (USPTO) rejected the bid, citing Wikipedia's entry on the term and the proposed mark's mere descriptiveness as primary reasons.

In the early 2010s, a company named Personal Audio spent several years harassing high-profile podcasters over a questionable patent for podcasting. Following an inter partes review, the USPTO invalidated five of the patent's provisions in 2014, effectively defanging it. Since then, various podcasters have trademarked their shows' names, sometimes including the word "podcast," but none have succeeded in trademarking simply "podcast" or "podcasting." (We should also point out here that podcast recordings themselves are protected under copyright law.)

The podcasting explosion

Podcasts were solidly popular by late 2014, with narrative shows structured around both true ("The Moth") and fictional stories ("Welcome to Night Vale") taking off. But even simple conversation-based shows — either between co-hosts or a host with rotating interviewees — had serious staying power.

With podcasting already firmly in the mainstream, it comes as no surprise that the lockdowns experienced around the world during the COVID-19 pandemic rocketed their production and consumption to new highs. According to Listen Notes, over 1 million podcasts debuted in 2020, around triple the year before, and more than 726,000 came out in 2021.

IP opportunities galore

These days, if you can imagine a topic, there is likely a podcast covering it: everything from Hollywood scandals and corporate malfeasance to the history of country music. But the medium's uptick in licensing and IP opportunities is an even bigger sign of its success.

Numerous popular podcasts sell branded merchandise: clothing, mugs, tote bags, etc. Others have been adapted into television series ("The Dropout" and "Homecoming"). And so, some two decades after its inception as a democratized, subversive spin-off of established media, the podcast had matured into a fully corporatized marketplace, replete with sponsorships, endorsements and audience patronage.

Despite this shift, the mindset as regards IP protections for podcasts is still somewhat stuck in the old frontier days. In particular, a lethargic approach to registering trademarks for podcast names can push smaller creators out of the picture.

Two recent examples from the United Kingdom demonstrate the hazards of a devil-may-care approach to IP rights. In the first, model Emily Ratajkowski's new tri-weekly podcast "High Low with Emrata" bears no small similarity in name and concept to the earlier series "The High Low" from Dolly Alderton and Pandora Sykes. However, the fact that no trademark was registered for the previous podcast and its recent inactivity leaves the pair with an uphill struggle should they wish to capitalize on the brand recognition they built up from 2017-2020.

On the other hand, Sydney Lima and Gizzi Erskine left trademarking the name of their series "Sex, Lies & DM Slides" to music streaming service Spotify, only to be ousted as presenters before the ink on the trademark approval was dry. As a result, they lost possession of the brand they had created together.

On the more back-end-business side of things, The New York Times' $25-million USD acquisition of the production company behind "Serial" exemplifies how valuable traditional media companies consider podcast IP to be. And on this very topic, one example stands head and shoulders above all others: In 2020, Spotify splashed out $100 million USD for a multi-year exclusive deal for Joe Rogan's massively popular, if controversial, podcast. With an estimated audience of 11 million listeners per episode, even Spotify's alleged spending of north of $200 million USD seems worth it.  

If you are seeking to protect the branding elements of your podcast or find licensing opportunities, Dennemeyer's IP experts can be your guides — and our own podcast, "Key to IP," is a great place to start!

Key to IP features Dennemeyer's IP experts and respected industry figures discussing subjects like emerging tech, intangible asset management strategies, industry-shaking legal issues and much more! Also available on major platforms including Apple Podcasts, Spotify and Google Podcasts.