Nieman Foundation at Harvard
Welcome to Hot Pod, a newsletter about podcasts. This is issue 231, dated October 22, 2019.
Risk. The Wild West is a common metaphor for the podcast ecosystem, both as descriptor (“There are no rules out here!”) and excuse (“There are no rules for me to follow!”). Personally, I don’t have much love for it — it’s overused by those who wish to sound like they know a damn thing — but that doesn’t take anything away from the relative accuracy of the image. For a long time, standards of conduct in this previously underdeveloped corner of the media universe were indeed emergent, and podcast folk have both profited off and suffered from this nascent state of conditions.
The thing about the Wild West, though, is that it eventually gives way to industrialization, which ultimately results in chaos that can manifest itself in a number of ways. [watches Deadwood once] One such way revolves around contracts and commissions, or the formal process by which podcast producers — typically freelance, independent, and/or generally solo — get work from the people with the money, an increasing number of whom come from other industry contexts. As podcasting draws more attention from these external opportunity providers, it’s seeing the use of conduct standards derived from other media contexts that aren’t always suitable for podcasting. That creates a less-an-ideal environment for audio producers, who have yet to properly organize as a creative class.
Over the past year or so, I’ve heard from an increasing number of creative audio workers who feel considerable anxiety over some of the contracts they’ve been receiving. In many cases, they believe them to be inappropriate at best or excessively aggressive at worst. And for several weeks now, I’ve been trying to build a column around the ways that producers should see, understand, and operate within this new context. Understandably, though, there’s a blanket reluctance among the producers I speak with to go on-the-record about their experiences, thoughts, and proposed solutions — in large part due to active negotiations and fear of cutting off future opportunities.
But I remained compelled to build a column around this thread, at the very least to paint a picture of what I’ve been hearing. So I decided to move one layer up and reached out to two operators who actively work with producers but aren’t exposed to the same risks themselves.
The first is Elise Bergerson, an independent consultant who helps podcast clients work through each stage of operations and production development. (Previously, Bergerson was the business operations manager at This American Life and Serial Productions.) And the second is Amanda Hickman, the recently-appointed director of AIR’s Freelance Futures Initiative. I communicated with them separately, but their insights almost entirely overlap, so I’m going to weave them together.
The first point of context — aside from the fact that neither Bergerson and Hickman are lawyers nor proper substitutes for lawyers, and that all producers should consider consulting with a lawyer when dealing with these situations — was that bad contracts aren’t the norm. “The vast majority of outlets hiring freelance producers have perfectly reasonable standard contracts,” said Hickman. “But that doesn’t mean there isn’t a problem with outlets pushing pretty outrageous contracts.”
In the instances where there are difficult contracts, they tend to come from specific kinds of partners. “This may not come as a surprise, but I probably see the highest incidence of bad deals when creators are working with brands and work-for-hire partners who come from other industries and thus aren’t cognizant of the all-in costs,” said Bergerson. These situations, she argues, come from a thinking where the commissioning outlet’s focus is on producing goods at the bare minimum cost, as opposed to paying fair market rates to proportionally compensate labor, expertise, and talent. (Often times, the contract standards set by these outlets are shaped by their respective industries’ own legacies of exploitative practices.)
These conditions are exacerbated by two factors. The first is a lack of collective organization among podcast producers as a creative class to cultivate and enforce standards around rates. The second is a little weirder: the existence of alternative online services that further lower the perceived value of labor. To this point, Bergerson referred to a recent tweet by the producer Stephanie Foo, which contained a screenshot from Fiverr in which audio freelancers were charging prices as low as $5 for editing and mastering entire episodes.
what are these prices. what is happening pic.twitter.com/ncL6L9z9vP
— Stephanie Foo (@imontheradio) October 18, 2019
So what defines the quality of a contract? It comes down to how the risk and reward is being distributed between the producer and the outlet. Broadly speaking, producers can start by breaking contracts down in terms of how control is distributed along three things. The first is production-oriented, hitting topics like: Is the provided budget sufficient to actually cover everything? How is the client being held to paying on time? Is there any transparency over the client’s marketing and ad sales strategy? The second is editorial-oriented: Who gets final say in the end product? How will the producer’s name be associated with the production? Will they have the option to disavow?
The final consideration — which some say is the most important, and in my experience, is the one most people want to talk about — revolves around intellectual property: who has control over the IP, derivative rights, licensing, raw material (underlying tape, etc.), decisions over follow-up seasons (can the producer shop it elsewhere?), and crucially, the podcast feed itself.
It should be noted that these are just the basic considerations. There are an assortment of other specific technical contract points that producers should be watchful in grappling with. Hickman highlighted blanket indemnities (a clause transferring legal risk onto the producer) along with inappropriate work-for-hire assertions (which pertains to a specific type of work arrangement) as big red flags when it comes to contracts. Meanwhile, and this is just me speaking personally: Kill fees and late fees are important.
When it comes to the broader desired outcomes of these contracts and arrangements, the fundamental question is whether producers are being adequately compensated and supported for the work they are producing. It’s a balance, and an ideal market context is one in which both sides are able to proportionally work out distribution of downside versus upside. If a producer is being made to give up rights to produce derivative works, then they should get paid more, and the other way round. (The apocalyptic situation is one where the producer both loses all ownership rights and get paid like crap.)
Of course, it’s a rough world out there for freelance and independent workers. The overarching structural distribution of power is such that the client tends to almost always hold the bulk of the leverage in any negotiation. It can be incredibly difficult, explicitly and implicitly, to hold your ground when engaged in a bidding situation for a client that may be underinformed when it comes to the reality of production costs vs. intended outcomes.
Particularly when you really, really need the money.
Everybody has to play the hand they have, that much I believe, but folks shouldn’t lose sight of what’s right. “Telling good stories is hard work,” said Hickman. “And if you’re doing that hard work, you should be able to not just pay the rent, but also take vacations and put some money aside for retirement.”
At the end of the day, the harsh reality is that it is in large part up to independent workers to look out for themselves. This means being vigilant about digging deep through offered contracts, finding help in becoming more familiar with the strategic contours of a negotiation, and being prepared for tough conversations. “It’s uncomfortable to kick off a project when the process leading up to a deal has been contentious,” said Bergerson. “I think this discomfort can lead to a lot of wishful thinking or grin-and-bear-it conversations. But creators need to think about scenarios in which everything goes wrong.”
To cap off the discussion, Bergerson added one more thing: “Let’s get some better organization together across the industry so that it’s not a race to the bottom!”
Two more things before we move on:
A thread to clarify some confusion about #AB5 and Freelancing Journalists:
(1) No one single law or test makes you an employee or independent contractor. For example, you can be an employee for state minimum wage laws, but an independent contractor for the NLRA. 1/
— Veena Dubal (@veenadubal) October 21, 2019
This law is for services and hopefully it will create a stronger incentive for media companies to license material from freelance writers instead of treating everything like a work-for-hire. Licenses are better for freelance writers than #WFH.
— Heraty Law (@heratylaw) September 14, 2019
New life. Ten days after WNYC announced it was scaling back music programming and cutting a number of shows, including New Sounds, the station appears to have reversed its decision following a tad bit of outcry.
We did it! Or more accurately, YOU DID IT! And if we sound incredulous, it’s because we never expected to be able to make this announcement – but New Sounds will remain at home, on WNYC-FM, and at https://t.co/U5ZrpqXten. Here’s the “official” word going out to our members today: pic.twitter.com/joQomfMOaK
— newsounds (@newsounds) October 21, 2019
This week in corporate announcements. Marvel has signed a deal that’ll see it making audio shows exclusively for SiriusXM’s Pandora. Here’s The Wall Street Journal on the matter. The news came during a week-long stretch that also saw two big, buzzy corporate announcements by iHeartMedia: a partnership with Shonda Rimes, and an expansion of its relationship with Will Ferrell.
The longest shortest goodbye [by Caroline Crampton]. Hillary Frank, the public radio veteran whose first story aired on This American Life in 1999, started The Longest Shortest Time, her podcast about parenthood and the universe therein, back in 2010. And it’s coming to an end this year, with the first episode of its final season coming out tomorrow.
To mark the show’s wind-down, I reached to Frank over email to talk about her decade-long experience making the podcast.
In the beginning, I made it in 20-minute spurts during my daughter’s naps. It was hard to imagine even thinking past the next episode, let alone nine years.
That’s part of why I passed the host torch to Andrea Silenzi a couple of years ago. When Andrea told me she wanted to stop hosting, I knew it was time to put the show to bed. It’s a way of closing the door on a rough period in my life.
That said, I never wanted TLST to be my job for the rest of my career; I like hopping from project to project. I’ll miss making the show and connecting with listeners but I’m also excited to switch gears.
And audio fiction felt very fringe. Before I started TLST, I launched The Truth with Jonathan Mitchell and it was hard to get public radio folks on board with airing our stuff. Now fiction is a booming category in Apple Podcasts. I think what really blows my mind is that podcasting has gotten so big that it can be parodied on SNL or the butt of a joke in an Amy Schumer movie.
A few years ago, though, my editor Peter Clowney and I worked together to design a new way of making the show. It was pretty simple, actually. We figured I had the bandwidth to do only one or two highly reported episodes each season. The rest would need to be basically two-ways with just a sprinkling of narration. We had to be super rigorous about this. Once we picked our heavy-lift episodes for the season, we had to say no to any others — or push them to another season. Even if it was a story we really liked. The result was that I got my nights and weekends back, and so did my producers. Best of all, this switch didn’t sacrifice quality in the show; some of our most popular episodes are also our easiest.
Find the final season of The Longest Shortest Time, as well as the show’s full archive, on its website.
State of the crooked union. I guess we should start with the news peg: In what is both a sign of the times and a nod towards times to come, Crooked Media is preparing to launch a daily podcast to further satiate the ravenous appetite of its substantial constituency.
Billed as the progressive media company’s “first daily audio news podcast,” the show is called What a Day, and sharing hosting duties will be the comedian Akilah Hughes and the political journalist Gideon Resnick. It will feature bite-sized episodes, with each installment running 15 minutes or so. The first edition is set to drop on October 28.
The podcast shares a name with the popular nightly newsletter the company launched in 2017, and the nature of its design follows suit. Like the newsletter, the podcast will operate within the “news recap, aggregation, and expansion” lane — note to self: come up with a better name for this subgenre — and it will lean on the work of the broader Crooked Media news team.
According to Sarah Geismer, Crooked Media’s head of creative development and production, the new show is a product of popular demand. “Lots of our listeners have been asking us to make a daily news podcast for a long time,” said Geismer, whose chief responsibilities involve overseeing podcast development and the company’s further expansion into television. “We’ve been developing this show for about a year, because we wanted to figure out how exactly we could do it in the Crooked way.”
And what does that mean, exactly? “The core of all our podcasts is a desire to entertain, to inform, and to inspire, and our hope is to guide people to different ways that they can get involved in the political process and advocate for some kind of structural change,” Geismer tells me. “But at the same time, we want to do that in a way that makes the experience as fun and breezy as possible…I think, for a lot of people, if the news feel too hard or anxiety-producing, they’re just going to turn the TV off. And so what we’re trying to do is to provide those people different ways to access the process, whether it’s through storytelling, emotion, or comedy.”
What a Day, the podcast, is one of Crooked Media’s biggest projects for the year, and it extends the company’s sprawling audio portfolio up to 13 shows. As is customary, they declined to share specific audience or revenue numbers, but they offered the broader metric that its podcasts “have been listened to over 890 million times.” (A flashy marketing number, though I don’t particularly doubt that the company is doing quite well.)
The daily podcast will lead Crooked Media into 2020, which, of course, will be defined by the upcoming U.S. presidential elections. And the company is making preparations to meet the heavier year ahead. Along with tightly focusing its core shows — Pod Save America, Pod Save the World, Lovett or Leave It — on the elections, Crooked Media is also working to build upon its experience with The Wilderness and develop more attempts at audio docu-series. The bigger picture should be familiar to many Hot Pod readers: Should those audio docu-series do well, they can be repackaged to feed the company’s nascent television business.
“We also have a few new talk pods in the works, some of which will be more focused on entertainment than others,” Geismer added.
When we spoke over the phone last week, I wrapped the conversation by bringing up what I felt was the main critique — as far as I know — that’s been levied against Crooked Media: specifically, what’s perceived to be the company’s part in contributing to the facilitation of “media bubbles.” (The broader topic is much-discussed. See here, I guess, among many, many other writeups.)
Anyway, I thought her response was interesting, specifically as it pertains to podcast stuff. “I think, to that, I would say: There are other forces at play keeping people within their bubbles that are so much more powerful than the way someone is choosing to listen to a podcast — which is an entirely voluntary activity,” said Geismer. “This is neither here nor there, but I feel like the reason we’re siloed is more for reasons like where we live and how we are presented information on our phones through algorithms on Facebook, Instagram, and things like that.”
She added: “With podcasting, there’s not much personalization on something like the iTunes app in terms of what you’re listening to — not yet, anyway — and so I feel like if people are coming to Crooked, they have a sense of what they’ll be getting.”
