Claims of intellectual property theft have long been a contentious issue within the world of podcasting. It’s a podcast wild west out there – an expansive, creative landscape with concepts seemingly being borrowed, adapted and pillaged. In the last couple of weeks alone, two David v Goliath pod battles have again raised the question: why does it seem so easy to get away with stealing podcast ideas?
Award-winning food writer Gizzi Erskine, 43, and Sydney Lima, 29, are the co-creators and hosts of the hit Spotify Original podcast Sex, Lies & DM Slides, which launched in 2020. The pair are now accusing Spotify of “daylight robbery” and claim that they have been unceremoniously ousted from their podcast, after it has been rebranded and relaunched with 22-year-old influencers Saffron Barker and Anastasia Kingsnorth as replacement hosts.
“We weren’t even warned,” wrote Erskine, labelling Spotify’s contract “murky” in an essay she posted on publishing platform Substack. “If Spotify don’t want to make it with us – then that’s fine, but do not steal our format and name,” she added in a separate Instagram post. “We created it […] in my kitchen over a series of months. Spotify just paid for it to be made.”
Days after these accusations were made, US model, actor and author Emily Ratajkowski, 31, announced the launch of her new podcast, High Low with EmRata. Composed of three – yes, three – episodes a week, the Sony Entertainment and Somethin’ Else podcast promises “raw, fun and smart conversations across today’s cultural zeitgeist”.
It’s a title and format that is all too familiar to UK podcast fans, with the social media noise alerting Dolly Alderton and Pandora Sykes, who created and co-hosted The High Low podcast – a chart-topping series which ran for four years from 2017, covering “highbrow and lowbrow culture”.
“It’s quite surprising in a way that [Ratajkowski] opted to go with the High Low name, considering the strong similarity,” admits Natalie Rimmer, an intellectual property (IP) lawyer for the independent London law firm Farrer & Co.
According to Rimmer, property issues around podcasts broadly fall into three categories: trademark infringements over a podcast’s name and brand, copyright infringements relating to the copying of content or format, and passing off relating to a false association.
“What would have been ideal for the original The High Low would be if they had registered a trademark for the name. That would have given them an easy way to stop others from using that name, because it’s quite clear-cut trademark infringement,” says Rimmer of the hosts, who aren’t commenting on the situation.
Claims of IP infringement within the realm of podcasting are nothing new. True crime audiences’ insatiable appetites for the macabre have seen demand for original crime reporting soar – and so, too, have plagiarism claims. Created by Ashley Flowers, Crime Junkie – one of the most popular US true crime podcasts – faced a slew of accusations in 2019 relating to the uncredited use of original reported material. The episodes were subsequently removed from streaming platforms.
Is it the blurred, confusing lines of IP that are causing problems?
“The point of IP rights – or what they try to do – is to strike a balance between protecting and rewarding creativity, but on the other side, freedom of expression and public interest,” says Rimmer. “There’s always a tension. And people have different views on which of those two sides you should be supporting more.”
When it comes to IP, Rimmer says a case can often be made for one brand trading off another’s name: in this scenario, High Low with Emrata piggybacking off the success of The High Low and profiting as a result.
A difficult case to prove, lawyers delve into lost advertising revenues and online click-through rates. However, Rimmer says the lack of a registered trademark and the podcast’s “inactive” status probably hold the key – given the High Low finale was published in December 2020, with no plans to restart production.
“Because they’ve stopped producing it, it’s a bit of a lower risk,” concludes Rimmer.
In the case of Sex, Lies & DM Slides, Spotify filed a trademark application in both the UK and US after 28 episodes had already aired. Submitted to the UK’s Intellectual Property Office on 21 July 2022, the process was legally completed on 14 October – the three-month-wait period allows for appeals to be lodged.
In this case, the trademark went uncontested.
After Erskine’s comments, a spokesperson for the streaming service said it takes “intellectual property extremely seriously”, adding: “Sex, Lies & DM Slides is a wholly owned Spotify Original podcast inclusive of name and format, and we look forward to watching the show continue to evolve.”
With the trademark approved just days before the new presenting lineup was announced, the change appears to mark a consolidation by Spotify – which has announced that it is cancelling 11 of its “Original” shows in an apparent shift towards celebrity-led content.
“I feel for her,” says Rimmer. “Because Spotify is the owner of that trademark, it suggests to me that some rights were probably transferred in that contract between Gizzi Erskine and Spotify. It’s possible that there has been a deal done behind the scenes that we just don’t know about – and we never will, because it’ll be under a non-disclosure agreement and will all be confidential.”
There are instances, however, where it can be argued that a concept is too generic to be claimed.
During the pandemic in 2020, journalist Tommy Stewart, 32, joined forces with football funnyman Jonny Sharples to launch Yourfest Podcast, offering listeners the chance to eavesdrop on celebrities’ dream festival lineups in lockdown. “We knew that people would be missing festivals … I guess we saw it as escapism, really – for us and the listeners,” says Stewart.
By June 2021, with the outgoing Sharples set to be replaced and sponsorship on the horizon, it was a pivotal time for the podcast. But according to Stewart, while he was deciding on a new co-host: “Before, you know, Sony took it on. Well, not took it on: stole it.”
Sony Music Commercial Group’s new podcast The Line-Up with Shaun Keaveny was built on an identical premise. “I know, from working in this industry, they will have put a lot of money into it and done a lot of market research. And they actually said, when I did speak to Sony, that they’ve done their research and they hadn’t seen us come up on Google,” says Stewart.
In this case, Rimmer says, it is “inherently wrong to say that nobody else is allowed to run a podcast based on the idea of a lineup for a dream festival. It does feel a lot more unfair when it’s actually Goliath taking that nice idea off David … But it all remains the same.”
Sony Music Entertainment, Sony Music Commercial Group and Spotify were all contacted for comment.
