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July 7, 2020, 10:04 a.m.
Business Models

Podcast creators of color grapple with a system that doesn’t let them own their work

“You can look at any number of instances over history in our country. Black creators often get the short end of the stick when it comes to ownership.”

As a fan, Shontavia Johnson was dismayed when she learned that the hosts of the podcasts she loves — Another Round and The Nod — don’t control or fully own the content they spent years making.

But as a lawyer, she wasn’t surprised.

The two may be different shows with different people, but to Johnson, who specializes in intellectual property, they’re both versions of the same story.

“You can look at any number of instances over history in our country,” she said. “Black creators often get the short end of the stick when it comes to ownership.”

This long struggle has burst once more into public amid a nationwide reckoning about race in just about every aspect of American society. Media — and podcasting — haven’t been spared. The latest flare-up came as the hosts of both shows recently told their stories on Twitter, causing an outcry from fans and spurring a wave of similar confessions from other creators of color.

“Our podcast is such a consistent piece of conversation in this current moment,” host Eric Eddings said in a recent interview. “And yet it’s not actually ours.”

Eddings and co-host Brittany Luse say they’ve yet to hear anything directly about their posts from Spotify, which now owns the show since it acquired their previous employer, Gimlet Media. By going public, however, they’ve helped to reignite a perennial conversation in the podcast business about ownership and intellectual property.

“Is it fair to say that the work of Black creatives is consistently undervalued across many industries, if not all industries? I think that it’s fair to say that,” said Luse. “So I think it would be naive of me to think that us being Black had nothing to do with the fact that we don’t own The Nod brand. We don’t own the episodes of our show. We don’t have any claim — zero — of our IP.”

She added: “But not having ownership is an issue that affects not just people of color…it affects every single creator in this industry. It affects anyone who hosts a show that is deeply aligned with who they are as a person and their identity and their specific faith and proclivities. It’s a concern that everybody should care about.”

Broad participation in podcasting is still possible by multiple routes, even as companies like Spotify, iHeartMedia, and SiriusXM seek to capture parts of the market, and — for a certain class of shows — Hollywood’s interest as well. But the industry, still relatively young, is not yet so calcified that changes can’t be made, and paying attention to the issues of POC creators in particular could be the lens by which larger structural splinters are addressed.

“All these longstanding issues around equity and inclusion and ownership and risk and gate-keeping and capital now are all thrown right into sharp relief,” said Jake Shapiro, CEO and founder of Podfund and RadioPublic, who confesses a longstanding obsession with the issue of ownership and IP in the industry. “And because [podcasting] is not a legacy business in the same ways as broadcast or music are, I think it’s exactly the place to try to fight for a new set of practices.”

But setting up new practices will require individual and institutional dedication to dismantling the current legal and cultural framework of governing intellectual property rights, said Anjali Vats, associate professor of communication and African and African Diaspora Studies at Boston College.

“It is time for deliverables,” Vats said. “I think we all know what tangible change looks like, right? It looks like ownership. It looks like money. It looks like freedom.”

Of course, there’s a bigger context to all of this.

“As a nation, we lack the imagination to really understand people of color as bona fide creators,” Vats said. “What would happen if we started to imagine intellectual property ownership not as individualistic in the way people in the U.S. tend to do, but as a collaborative effort that is shared, so that no one person owns it?”

Pollyannaish? Perhaps, but it’s not far off from what IP experts like Johnson and Shaun Spalding say is needed if the industry is going to make things more fair and sustainable for creators of color in particular.

BuzzFeed’s tussle with Another Round is likely a harbinger — and it’s inevitable companies will face more public callouts and scandals in the future, said Spalding, who is assistant director of the California-based New Media Rights, a nonprofit formed 13 years ago to provide legal services to creators, including podcasters.

“People don’t like it when they believe that artists are being taken advantage of,” he said. “And so I would say that you should build in the fact that public backlash is realistic.”

But Spalding also notes that it would be unrealistic to expect media companies to suddenly give every creator complete and exclusive ownership of their intellectual property. “This is not how this works,” he said. “All large content creation business models revolve around: Can we make 50 guesses? And then 49 of them don’t pan out. And now we try to milk that IP that we own for all it’s worth.”

Spalding, along with other IP experts who are paying attention to what’s been happening in podcasting, say that fundamental change boils down to two things: creators flexing business muscle, and the industry giving up more of the pie.

Podcast companies could lean hard into establishing micro-labels, networks, and imprints, borrowing from the comic and music industry, Spalding said, with some type of creator-ownership options. (To an extent, we can already see some small version of this happening. One example of this would be Exactly Right, the imprint-style network formed between Stitcher and the women behind My Favorite Murder.)

Regardless, he said, producers should figure out how much they value ownership, control, and compensation — ideally, before they agree to work for or with a company. Furthermore, registering trademarks and copyrights before negotiations begin could also offer creators better protection and leverage.

Last year, Shapiro launched PodFund, which invests capital into podcasts while letting creators retain their IP in exchange for a share of revenue. For podcasters connected to the public radio world, Shapiro offers an even bolder solution: from the get-go, public radio stations should simply not try to own the IP for any independently produced shows they are investing in.

“Because they don’t actually have the resources,” he said. “The thing that they really need and want is (A) to make sure that they’re driving membership and philanthropic support to the station, and (B) to build a reputation of being a really positive home for a diverse independent talent.”

There will be resistance to this proposition, obviously. Shapiro went on to say: “Station management, in particular, just haven’t historically been comfortable or knowledgeable about how to work with strong independent talent, diverse or not.”

Of course, it’s trickier for podcasters who are already working for the companies they’re pitching — in particular, those whose work is either within or attached to a journalistic media company. But that doesn’t mean creators shouldn’t push to ask for carve-outs in employment contracts, said Johnson and Spalding, or even an arrangement that would set off triggers to renegotiate as the show evolves or hits certain benchmarks.

In late 2018, Kristen Meinzer and Jolenta Greenberg sought to get ownership of their show, By the Book, when the company they made it for, Panoply, divested from content production. But they were met with a major financial hurdle.

“I was told that Jolenta and I could buy the IP for $300,000,” said Meinzer.

Panoply would ultimately sell the show to Stitcher for far less than the two creators had been originally quoted — specifically, $50,000, according to Meinzer. It’s a sum, she argued, that the duo would have been able to raise themselves, if only they were given the opportunity.

Stitcher, though, proved to be a decent company to work with. It has committed to helping Greenberg and Meinzer develop a second show, and the two creators would have input on any future TV deals. “If we have to be somewhere, Stitcher is a great place to be,” Meinzer said. “We don’t see them as the bad guys in this at all. Of course, they wanted to buy a successful show, and they’ve been very great.”

At this point, Meinzer has made three shows at four companies, and none have ever given her total control of her IP. This spring, she launched another podcast, Movie Therapy with Rafer and Kristen, which she owns outright.

Unlike some, Rebecca Nagle had a bit of leverage when she worked out a deal with Crooked Media to produce the show: they approached her.

“We went back and forth about intellectual property a lot,” Nagle said. “And I think it was really important to me because I just know so much content that is made about Native people is really offensive and terrible. And so I just didn’t want there to be a derivative of the podcast that is like every other movie or TV show that Hollywood has made that has Native people in it.”

Nagle said she worked out partial ownership with the company. She retains rights to her own family’s story, and has a seat at the table when it comes to any derivative works.

At the time she began negotiating with Crooked Media, though, Nagle didn’t have an agent or lawyer. She does now, and tells other creatives they should too.

Unsurprisingly, the lawyers agree with her.

“Don’t ever trust yourself to negotiate something,” Spalding said.

Johnson said the industry could make swift improvement by striking the same deals with people of color that it has made with white male creators.

“There’s always this assumption that these media entities are going to invest more. They’re going to have to do more. They’re going to have to sell harder, push harder to build audiences for content created by people of color,” Johnson said. “It’s a tired narrative that we keep hearing. But we know that is not true.”

In reality, Johnson said, creators of color often bring to table much more than just a show pitch.

That’s been true for Leila Day of The Stoop, who often comes prepared with a plan for audience, marketing, and monetization.

“I’ve talked to white creators at different networks, and I tell them all the things that I have to do when I pitch,” she said. “And they’re just shocked.”

Day and Hana Baba cofounded The Stoop in 2017 at the San Francisco public radio station KALW. The organization was supportive, but didn’t have sustained funding for it. So the pair invested their own money and sourced their own grants. It remains a side hustle.

And though they’ve been courted by podcast companies, they’ve been choosy. They aren’t looking to be the one “Black show” for any organization, often siloed or starved of resources.

“That was my biggest fear, said Day. “I’ve seen it with so many other podcasts.”

Furthermore, she noted, the trade-offs for signing with an external podcast company haven’t been worth it.

One podcast company — Day wouldn’t disclose which — offered $25,000 for the show…on the condition they’d have to give up ownership and produce twice as many episodes.

“That was laughable to me,” Day said. “That for me was a moment where I started realizing that there was an absolute lack of care and lack of value put on some content.”

Day said it’s hard to imagine podcast producers, especially those of color, won’t keep pressing for more ownership options.

“We are in an era right now of sharing information and sharing stories. And I’m not talking about the things that we’re making. I’m talking about what’s happening behind the scenes,” she said. “People are a little bit more savvy right now about what it means to own your own property and what it means when you’re part of a network. They’ve seen what can happen…to create something that you put your heart into and you put all your soul into — and know that it could just not be yours.”

Day added: “I think people are opening their eyes up to that, and they’re really asking, like, why?”

Kameel Stanley is a podcaster, journalist, storyteller, entrepreneur, and, most importantly, a cool auntie. Her work has often focused on race, class, and social justice. She’s currently based in St. Louis. This story originally ran in Hot Pod.

The Nod’s Brittany Luse, NPR’s Sam Sanders, and The Nod’s Eric Eddings on the June 15, 2020 episode of The Nod.

POSTED     July 7, 2020, 10:04 a.m.
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