Fasten your seatbelts, gang, for we are about to delve into a topic so confusing, so contentious, and so inconclusive that almost nobody dares bring it up for discussion. This is likely to be a long post, so find some time when you can settle in and study. Take a deep breath and consider this question:
Can you use copyrighted materials in your presentations without permission?
The answer is a definite “maybe.” Or if you prefer, “sometimes.”
I need to point out that my discussion refers specifically to the United States of America only, as this is a question of US federal law. And it refers to copyrights rather than trademarks, which is an entirely different topic. And that I have absolutely ZERO legal training or background in law. Take NOTHING I say as legal advice or counseling. I’m just rummaging around the internet for information.
I will also point out right up front that there is an easy way to deal with the question in a categorical, never-fail solution strategy. Just don’t use other people’s copyrighted materials without explicit, written permission. That is the advice corporate legal counselors would give their clients.
So with all of those disclaimers up front, is there any reason to still explore the subject? I contend that there is. The Copyright Law has a marvelous section right there in black and white saying that there are valid, acceptable reasons to allow certain uses of copyrighted materials. But some of the biggest rightsholders regularly use strong-arm tactics and intimidation to suppress application of the Fair Use provision. We need to know our rights and be ready to exercise them, or else they might as well not exist at all.
If you want to read the section in the law straight off the page, it’s quick and easy to do. It’s not even written in “party of the first part” legalese. Go to http://www.copyright.gov/title17/92chap1.pdf and scroll down to page 19. In a few short lines, Section 107 spells out an exception to copyright limitations that is so vague and ill-defined as to render it almost useless for planning and for predicting a legal decision.
Basically it says that inclusion of copyrighted materials in your work is sometimes acceptable, even without permission. It lays out four areas “to be considered” in determining whether the use is fair and does not constitute infringement. Unfortunately, it doesn’t say how they are to be considered. Do all have to apply? Just one? And to what extent? Here are the considerations, and the lack of quantifiability is breathtaking:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Does this mean that only nonprofits or schools have Fair Use? Or that they can use anything they want? No to both questions (based on past court cases). Does it mean that if you use only a few seconds of a movie clip from a full-length motion picture you are automatically okay? Again, no.
What it really means is that if a Fair Use case goes to court, the judge has a lot of personal discretion in making a decision and no sane lawyer would guarantee a finding one way or the other. It means that precedent is very hard to apply because you can argue lots of subtle small case-specific differences. And it means that the party with the deeper pockets can almost always afford to keep the case going long enough to make the other party fold from simple fiscal attrition.
On the plus side, I’ll mention something that no lawyer would ever choose to highlight. In the overwhelming majority of cases where the copyright owner chooses to contest a use, they start with a simple “cease and desist” letter. I am always amused by people warning me that Disney or Warner Bros. is going to sue me for every cent I have because I use a still image from a classic film on one slide in the middle of a presentation. Yes, they have the right to do so, but it is a pretty silly first course of action. Suing takes time and money on their side, and unless the use is particularly egregious and damaging to them, it probably isn’t worth it. So the worst case scenario is likely to be an inability to include that slide in your archived recording. [IMPORTANT NOTE: I am NOT using this as a justification or encouragement to knowingly violate real copyrights. I’m just saying that if you think you have an honest Fair Use situation but are afraid of potential financial downside, it is unlikely to be a problem in MOST common cases.]
Fair Use is definitely NOT going to help you if you use copyrighted material in your marketing and promotional materials. Don’t even try it. Don’t associate someone else’s property with your organizational identity. Don’t use it in a situation where it could seem like the rights owner or a pictured celebrity can be seen as approving or endorsing your ideas, products, or company.
In webinar presentations, you are most likely to hit one of four use cases:
- Use of a copyrighted image on a slide
- Use of a quotation from a copyrighted work such as a book or white paper
- Use of a short clip from a motion picture
- Use of a short audio clip (music or voice)
The basics are clear. If you use the clip, quote, or image just because you think it’s cute, that’s not Fair Use. If you use the image as part of your slide master or background or repeatedly associate it with your work, that’s not Fair Use. But if you use it once to illustrate a specific point you are making, particularly in an educational context, and you comment on particular aspects of the picture or clip or quote to identify what they did and how they did it… That’s probably Fair Use.
Are there resources to help you in your planning (and potential defense of your use?). Yes there are. First of all, even in a Fair Use case you should try to attribute the copyright holder. A nice little copyright statement at the bottom of your slide can help show that you weren’t trying to claim the content as your own.
Next, you should try to get permission for use. Here is a list of many common copyright permission contacts: http://www.copylaw.com/new_articles/permission.html
And here is a more condensed list for movies/music: http://www.reelclassics.com/Buy/licensing.htm
Columbia University Libraries has a nice little checklist in PDF form that lets you tot up potential arguments for and against Fair Use in your context to see whether you are more or less likely to be covered: http://copyright.columbia.edu/copyright/fair-use/fair-use-checklist/
There is a brand new book available from Amazon called Reclaiming Fair Use: How to Put Balance Back in Copyright.
And the Center for Social Media has some interesting online discussions on the subject.
Fair Use is not a free pass to just steal other people’s creative work. But there are times when it is very helpful in letting you make a specific point in a way that has more impact and resonance than you otherwise could. Knowing your legal rights is the place to start.
