Emerging Legal and Business Trends in the Burgeoning Podcast Industry

While podcasting has been around for nearly two decades, when Apple’s explosive hit “Serial” made headlines in 2014 an industry took off. Cut to May 2021 and the sizzling podcast market has blossomed into a vast ecosystem for creators, advertisers, producers, and listeners. The industry is continuing to adapt rapidly to powerful technology companies establishing themselves in the media market with major acquisitions, significant investments from Hollywood, and the technology industries and A-list talent providing big-budget scripted podcast content. Advertisers are clamoring to the space in order to better reach potential consumers. This article examines major business trends in the podcast space to pay attention to in 2021 and beyond.

Growth in Ad Revenue 

Multiple business media sources currently forecast upwards of $1.28 billion dollars in total ad revenue for all podcasts in 2021. This topples previous projections from earlier in 2021 and marks a 41% increase in year-over-year growth. Advertisers will continue to capitalize on this growing industry and its uniquely attentive listeners (80% of podcast consumers report that they listen to episodes in their entirety and 70% percent of listeners respond positively to host-read ads). As advertisers funnel more money into the market, technology will continue to drive increased personalization and localization of ads. With big tech companies like Facebook and Amazon entering the podcast space, targeted ads, like those we already see on social media, will increase in nuance, including customizing advertisements according to individual demographics, location, and interests. This level of personalization could extend to the podcast content itself, with aspects of a podcast being tailored towards the individual listener’s personal interests. 

Diversification of Revenue Streams 

In 2020, podcast hosts learned the danger of relying too heavily on any one income stream (for example paid public-speaking or live events). The pandemic forced content creators to expand their revenue streams. We will continue to see more diversification in 2021. While podcasting platforms such as Stitcher and Luminary already offer exclusive podcasts, big players such as Spotify and Apple made headlines recently when they announced that they are planning to roll out a paid subscription model akin to Netflix or Hulu. Beyond paid subscriptions, expect to see podcasts focus on new methods of monetization including online courses, merchandise, one-off exclusive episodes, newsletters, and book deals. Industry experts believe this will be an effective method of capitalizing on a dedicated listenership. For examine, in May 2020, Slate Magazine experimented with a paywall model for its online content, using its free podcasts to converted 5-10x more podcast listeners into paying Slate Magazine subscribers. In 2021, we will see paywalls and subscription-based podcasts become more commonplace. 

Platform Wars 

While Apple is responsible for popularizing the podcast model and long has been the dominant player in the podcast space, industry experts expect Spotify to eclipse Apple in overall listeners in 2021. Spotify has been gaining momentum for years, investing over $500 million in original content, including the acquisition of Gimlet Media in 2019 for over $230 million. Amazon purchased the podcast network Wondery in 2020, which solidifying the retail giant’s foray into the podcast market. We will continue to see further consolidation as small to medium sized podcast networks join forces with bigger platforms like Apple, Spotify, and Amazon. 

An Influx of Higher-Quality, Bigger-Budget Shows 

One of the podcast medium’s main draws is the low barrier of entry for aspiring hosts and the flexibility to record remotely or from home without needing a large crew or including much equipment. With most production in Hollywood slowing to a halt in 2020, many actors and influencers turned to the podcast medium to reach their fanbase. This influx of A-list talent invigorated an already-flourishing industry. This year, we will see even more Hollywood crossover into the podcast world. 

With the influx of money and talent, bigger-budget podcast programming should become widespread in 2021. For example, QCode Media, which is a two-year-old Los Angeles, California-based audio production house, is fast-becoming a gamechanger in the Hollywood podcast vertical. With a portfolio of 11 narrative shows featuring big names like Rami Malek, Matthew McConaughey, and Cynthia Erivo, QCode is breaking new ground with higher production values, A-list talent, and an immersive audio experience for its listeners. The quick turnaround times and lower budgets (compared to producing TV) enable creators to produce podcasts that are timely and topical. Further, the speed and low production costs allow actors and producers alike to take more risks by test driving intellectual property on a smaller scale, allowing creators to farm out their hit podcast material to studios for potential TV or movie deals. The “podcast-to-TV-pipeline” has already produced several successful shows like “2 Dope Queens” and “Homecoming” – a trend expected to continue well into 2021 and beyond. 

Conclusion

As podcast-related agreements contain many unique terms and issues, it’s important to have knowledgeable attorneys to help you negotiate lucrative partnerships and navigate the industry’s unique business (and legal) dynamics. Arguably the most important elements of a podcast contract negotiation are control of creative decisions, ownership of underlying intellectual property and related products (e.g., spin-off shows and movies), and the sharing of advertising revenue. Knowing market standards and the most important business deal inflection points can help creatives, podcast companies, and media distributors maximize revenue while creating successful (and compelling) podcasts.

Whether you are a fan of podcasts or not, the second half of 2021 will be eventful for the industry as big tech giants will duke it out for market share, Hollywood will bring in more money and talent, and new technology will allow creators to bring us higher quality, niche-specific, data-driven content. Be sure to charge your AirPods!

[Aaron Swerdlow is a Partner in the Los Angeles office of Weinberg Gonser. He regularly serves as outside general counsel to clients and specializes in corporate, entertainment, finance and technology transactions.]