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How Today’s Podcast Deals Look A Lot Like Yesterday’s Music Deals

A growing group of podcasters — primarily women of color — are spearheading a reckoning in the podcast industry about systemic power imbalances between creators and the corporations who are increasingly interested in funding and marketing their work.

There is, of course, the Another Round story, covered above. But then there’s also the case of The Nod. Last week, Brittany Luse, co-host of Gimlet Media’s podcast The Nod, shared that Gimlet’s parent company Spotify owns 100% of The Nod’s brand, with no stake given to Luse or her co-host Eric Eddings. Even though Luse and Eddings are now hosting an adaptation of The Nod on Quibi, they still need permission from Spotify to post new audio episodes to their original podcast feed.

“[The Nod] bears our faces. It’s about the unique lens through which Eric and I see the world,” wrote Luse. “It’s critically acclaimed, beloved, and more relevant than ever. It’s derivative of a show we created before we’d even heard of Gimlet. Do we not deserve to own even a fraction of it?”

These kinds of deals and power struggles bear a striking resemblance to the battles that artists and major labels have been fighting for decades. It’s worth comparing how contracts work in the music and podcasting worlds — especially in the context of Spotify, which is making some of the biggest deals in the podcast industry’s history off of the massive, global audience they built on top of music.

In a standard recording contract, major labels like Universal Music Group, Warner Music Group, and Sony Music Entertainment offer artists a cash advance on future royalties plus extensive marketing and distribution support, in exchange for buying out most of the rights to the artists’ recordings in perpetuity (or, per U.S. copyright law, for the lifetime of the artist plus an additional 70 years). After recouping their advance, artists typically get only a 20% to 30% cut of their sales. Recording contracts also often include an options clause, in which the label has the right to keep the artist on their roster for up to five total albums — which, again, the label owns more or less in perpetuity.

Such deals were solidified in a bygone era, when the costs of production and distribution around physical music formats like vinyl records were much higher — and when many younger artists didn’t know any better. Celebrities like Taylor Swift and Charli XCX signed five- to six-album label deals when they were 16 years old, and were stuck in those deals for over a decade. (Swift in particular owns none of the six albums she released between 2006 and 2017 through her former label Big Machine Label Group, which sold to artist-management magnate Scooter Braun last summer.)

In recent years, social media and streaming services have given artists more direct access to their audiences, and in turn more leverage in deal negotiations. Many newer artists like Maggie Rogers and Cuco have opted for limited-term licensing deals instead, in which they give a major label an exclusive license to distribute their music for a few years, after which all rights revert back to the artists themselves. It took decades of outside pressure from artists and their advocates for these adjusted deal terms to become more standard; as campaigns like the U.K.’s #BrokenRecord suggest, the fight is still ongoing.

It’s intriguing and unfortunate to see creators in the relatively newer, supposedly more flexible podcast industry fighting for many of the same IP rights, whether it pertains to ownership of their back catalogs or any ownership of their creative work at all. On average, podcasters tend to have more frequent content output than musicians — most shows under Spotify, for example, release one or more episodes every week, whereas a major-label artist might release just one, 10-track album a year, though limited-run narrative series are the clear exception — implying that the former group also has more material at stake.

There’s another key difference between major-label contracts and Spotify’s podcast contracts that make the latter feel more imbalanced: the right to derivative works. In a standard recording contract, a major label would own the rights only to a given artist’s recording output — i.e. their singles, albums and corresponding music videos. The artist would typically own all other non-recording extensions of their own brand, such as tours, merchandise lines, brand endorsements and feature-film roles. (“360 deals,” which give labels a cut of all of an artist’s income streams, are an exception to this standard, but are relatively rare today.)

In contrast, many modern podcasting and digital-media contracts appear to seek to buy out all of a producer’s intellectual property, encompassing the original deliverable and all resulting derivative works. For instance, with The Nod, Spotify owns both the original audio podcast and all adaptations of the brand, including the Quibi show that bears Luse’s and Eddings’ faces. (It’s worth noting that major labels are taking note of this diversification strategy and investing more in multimedia adaptations of their recordings beyond music videos, such as Sony Music’s aggressively expanding podcast arm and Universal Music Group’s first-look deal with Lionsgate.)

Over the past several years, Spotify has tried and failed to bypass record labels and build infrastructure for unsigned artists. They invested in DistroKid, an independent music distributor; launched a direct-upload tool for unsigned acts in the U.S., mirroring SoundCloud; and offered select independent artist managers six-figure advances to license their clients’ music directly to the platform without any third-party help. But Spotify learned the hard way that it’s difficult to gain influence in an environment like recorded music where incumbent corporations already control around 70% of the market, and has since scaled most of these initiatives back.

By acquiring podcast companies like Gimlet Media, The Ringer, and Anchor, Spotify seems to be aiming to grow into something like a “major label” for podcasts — owning the majority of the market and its most valuable content, while having capabilities across creation, marketing and distribution in-house. With details of their podcast contracts coming to light, the major-label analogy becomes even more literal, in terms of the lack of ownership given to some creators.

From an IP standpoint, Spotify, BuzzFeed, and their peers ironically operate a lot like the incumbent media players they are trying to “disrupt.” The exception may be Joe Rogan, who has a licensing rather than a buyout deal with Spotify and, as one of the industry’s most popular public figures, has the leverage to negotiate more favorable terms. We’ll probably see more of such exceptions as we see Spotify sign more content deals with other big names and other powerful media companies.

But as Luse wrote on Twitter: “If your platform isn’t big enough to push back on that, tough luck.”

You can find more of Cherie’s work on her Water and Music newsletter, where she writes about innovation and the music industry.