Continuing from last week’s topic on copyrights in your employment contract, it’s time to quickly consider what it means to be a public speaker,webinar presenter, or other content creator. Creating and presenting a talk can be an incredible experience, but there are a number of legal mechanisms that are at play as well. Interestingly, most people and companies seem to not be aware of this fact. As a result, it’s easy for people and companies to end up with a misunderstanding.
Copyright law
With the rise of the pandemic came an explosion in the number of webinars and presentations being created. If you’re a speaker or presenter, you’re creating content with copyrights. I won’t rehash the topics around the images/videos/audio you use for your presentations. There’s lots of great posts on that topic. Today I want to examine the other part of that discussion.
As you probably already understand, when you create a presentation, you create an original work that is subject to copyright. The content you create is similar to a book in that regards. Of course, if you created custom images, videos, or audio clips to help with that presentation, you may have additional items that are also subject to copyrights. An explainer image that you add to the presentation, for example, might have its own copyrights. If you created a musical composition and then recorded it for the presentation, you actually may have two copyrights (composition, sound recording) for that!
Once upon a time, registering your copyrights was required if you wanted to avoid donating them to the public domain. Due to a change in the laws many years ago, registration is now entirely voluntary. Your copyrights automatically exist the moment you create the work. That said, if you haven’t registered your copyrights, you may have a more difficult time if you need to pursue a lawsuit against someone infringing on your works. The US provides a circular that explains these basics.
The performance
The moment that you deliver your presentation, you enter a new realm. Now, you’ve also created a performance. A performance is also something which can have a copyright. In fact, as the performer you have the exclusive right to create a recording of the performance. Anyone else recording the presentation without permission may be infringing on this right. Unless it’s an allowed exception (Classroom or Fair Use), they need permission. That’s right … it’s not enough to just credit the presenter!
Webinars and conferences can be public, private, free, or paid. In each case, you still have a protected performance. This includes any transcripts that may be created. By default, the presenter continues to own rights to that performance and the content they created for that performance. Generally speaking, the copyright is not automatically assigned to organizers, conference owners, employers, or the owner of the premises or platform that carried the presentation. Providing a presenter compensation, food, lodging, or promotion also does not inherently transfer or assign any copyrights. It’s like going to to a concert. The entertainer does not give up any rights to the material just because they are being paid to perform.
The copyrights and associated license rights are protected internationally and cannot be accidentally transferred to someone else. To change the copyright owner, the transfer of ownership must occur in writing and be signed. That said, there are cases where an employer will become the copyright owner of the created work:
- You develop the work under contract or in the scope of your work for your employer on their time. This creates a work-for-hire (i.e., they are paying you to create the work), so they are considered the original owner. In this context, if you’re being paid by a company to create and present webinars, it is a work-for-hire. In comparison, if the content is created outside the scope of work, it’s presentation is not considered work-for-hire. One way to know the difference – ask yourself if you’re allowed to say “no” or choose not to present the content.
- You sign an employment contract which cedes your copyrights to your employer. In this case, they would have a case that could be argued in court constituted a valid transfer of rights. We delved into this topic a bit last week.
Distribution
If the webinar or presentation is available to be watched later, it is still protected by copyrights. The various underlying works (slides, transcripts, recording, video, images, music) are each still limited by the rights of the owners. This includes the right to reproduce and redistribute those works. This is typically done under license, with or without royalties or payments. In fact, by default most content is released with all rights reserved. This means that people can watch it, but they can’t redistribute (share) the content or create derivative works from those materials. Similar to copyrights, US law requires that any exclusive licenses must be in writing.
In many cases, presenters may give hosting organizations or conferences a license to view the content or allow others to view the content. This doesn’t automatically grant them the ability to reuse or recreate the content in other ways (unless there has been an agreement or licensing to allow derivative works to be created). In addition, licenses cannot be implied. That is, they are subject to the owner of the work. Consequently, it is a best practice for webinar providers to have a contract which clearly outlines any rights that are being requested. For example:
In this example, the webinar host is explicitly acknowledging the default rights and that the ownership remains with the presenter. This makes it clear to everyone involved and eliminates any assumptions or misunderstandings.
Another example:
Again, this clause simply makes it clear that the presentation and associated materials belong to the presenter and not to the audience or the host. This explicit clarification helps eliminate uncomfortable situations afterwards. You’d be surprised how many hosts do not realize that they do not automatically have any rights or license to presented content!
Implied Licenses
As a presenter, you are under no obligation to offer a license. If you decide to license your content, you’ll want to consider the terms for that license. It’s important to know that there’s an emerging defense to copyright infringement based on when someone reasonably thinks they have permissions to use copyrighted materials without a clear contract. This is called an implied license. Because an exclusive license requires a written agreement, implied licenses are a non-exclusive agreement.
In these situations, courts are asked to determine if the parties would have reasonably created a license based on existing agreements and business relationships. This does not grant any third parties rights to use or host the materials. In addition, it is generally not enough for one party to have simply expected or believed there should be a license.
Licenses have a scope and and agreement on royalties/fees. As a result, even if a court agrees there was an implied license, they may also determine that the scope of the license was violated or that royalties are required. In both of these cases, the court can choose to require payments to the copyright owner.
Seemingly clear implied license can be difficult for the courts. For example, consider a tattoo. The artwork used is a copyrightable artistic expression that is licensed to you. Your payment for the work does not automatically create a work-for-hire or assign you any rights. The Illinois Southern District court ruled in Alexander v. Take-Two Interactive Software, Inc. that reproducing the tattoos that exist on wrestler Randy Orton in a video game were copyright infringement and ordered payment to the copyright owner. At the same time, the New York Southern District court ruled in Solid Oak Sketches, LLC v. 2K Games Inc and Take-Two Interactive Software, Inc that Lebron James had an implied license to use his tattoo as part of his personal likeness and could be used in a game!
Conclusions
Copyrights are incredibly confusing. It’s important to know that as a content creator you have significant authority and control over what you create and how it is presented. It’s important to understand these rights, since they help to protect you and your personal brand.
Happy creating!