How to avoid committing copyright infringement when creating training materials.
November 1, 2008
Mega-trainer and motivational speaker Anthony Robbins and his team created a 350-page manual in 1996 for a seminar called "Financial Power." The materials caught the attention of Wade B. Cook, author of the best-seller Wall Street Money Machine, who claimed that four passages from Robbins’ manual—72 words—were copied from his book. Robbins had read Cook’s book and admitted he used some of Cook’s phrases because of their creativity. A jury awarded Cook $655,900 for copyright infringement. Ultimately, the lawsuit settled in 2000 on undisclosed terms—after years in court.
Similarly, copying claims involving training materials created by advertising agency BBDO Atlanta took years to settle. The problem began in 2003, when the agency created training materials called "SCQuARE and the Continuous Promise" and "SCQuARE for Dummies" that used quotes and graphics without the copyright owner’s permission. Five years and a pile of attorneys’ fees later, the federal case for infringement settled, leaving behind another cautionary tale of risks from using content without permission.
Human resource professionals, who often oversee the development of training materials, should be aware that using other people’s content without permission can lead to lengthy lawsuits, expensive legal bills and large damages payments. Misuse is particularly easy in the Internet age, when copying content, images, video and music is just a click away.
Understanding the Problem
Sivasailam "Thiagi" Thiagarajan, Ph.D., founder of The Thiagi Group and author of an array of training materials, sees many instances of copyrighted materials being misused by HR professionals. Such misuse includes featuring video clips and cartoons in training materials without the owners’ permission. Training materials in these cases are used "frivolously and mindlessly," Thiagarajan says. "I have seen them being shown at conferences without permission or citation." ›
Karen Mantyla, president of Quiet Power Inc., a Washington, D.C.-based distance learning and professional development company, and the author of eight books after a career with a Fortune 500 company, also sees potential problems for HR professionals, who often use content "nonchalantly." Proper use of material created by others starts "as an organizational cultural value," she says. "It should be part of leadership training programs on ethics."
A general understanding of copyright is key to avoiding infringement. Here are the basics:
Copyright protects "original tangible expression." First, as this term suggests, the work must be original, not a copy of something else. Second, the work must be tangible—something people or machines can read or see. Third, only the actual expression is protected, not the underlying idea. Protected categories of expression are broad: publications, photographs, graphic designs, music, maps, charts, tables, architectural designs, software programs.
Copyright protection has limits. It does not extend to the underlying ideas or concepts—content developers can repeat the ideas of others without their permission, provided the original expression is not copied. Similarly, facts and processes are not protected by copyright, although the selection and arrangement of facts can be protected. Copyright protection is also limited in duration to no more than the life of the author plus 70 years. Since the lives of Abraham Lincoln and Walt Whitman exceed that measure, their works are now in the public domain.
Infringement occurs when a copyrighted work is copied without permission. Verbatim copying is not required. Infringement is not avoided simply by changing around or paraphrasing some of the words. It is sufficient that the challenged work is "substantially similar" to the protected expression in the original. The question to ask is "would the ordinary observer think that the second work was copied or derived from the first?"
What Infringement Is Not
Copyright infringement should not be confused with plagiarism. The two concepts overlap: Actions that constitute plagiarism may sometimes also be infringement, but not always. Plagiarism is an ethical concept that involves taking credit for something that is not yours. It applies to ideas as well as expressions and depends on context. Quoting the musical phrases of others in jazz improvisation is common and widely accepted. Stealing ideas without attribution for a college thesis can lead to expulsion. Democratic vice presidential nominee Sen. Joseph Biden dropped out of the presidential race in 1988 when it was revealed that parts of his campaign speeches were taken without attribution from British Labor Party Leader Neil Kinnock.
While those who fail to give attribution may be labeled plagiarists, giving attribution for unauthorized copying is not a defense to copyright infringement. In the 1990s, Amway reportedly settled for $9 million a lawsuit regarding the unauthorized use of recordings by Michael Jackson, the Beatles and Whitney Houston in its motivational videotapes. Similarly, Texaco reportedly settled a case involving the copying of articles from technical journals for more than $1 million. In both instances, it was not a defense that creators of the original works were obvious or identified.
Ownership is a crucial issue, explains HR training consultant Libby Anderson, SPHR, president of EDA Human Resource Services, an HR consulting and professional development training company in Naples, Fla. "There’s a lot of confusion about ownership, for consultants who are paid to write training materials and for employees who create works as part of their job."
Sometimes, the rules are counterintuitive. Ownership of copyright remains with the author unless specifically transferred to another party. An employer is considered the author of works created by its employees within the scope of their employment, as demonstrated in a widely reported case in which Mattel successfully claimed ownership of the Bratz doll design created by a former Mattel employee and was awarded $100 million by a Los Angeles jury.
In contrast, the rights to works created by an independent contractor belong to the contractor, even though she was paid to create the work. This often leads to unexpected results. When a trainer hires an independent photographer to document a training session, for example, the photographer owns the copyright to the photos, even though the photos were paid for by the trainer. The same principle applies to independent contractors hired to develop web sites, create training materials or design logos.
Determining Fair Use
Copyright laws permit the use of copyrighted material in certain circumstances, allowing "fair use" for purposes such as "criticism, comment, news reporting, teaching, scholarship or research …"
Four factors are considered in determining whether use of a copyrighted work is fair:
The nature of the infringing work. Uses that transform the original into something new are more likely to be permitted. Noncommercial use is more likely to be permitted than commercial use.
The nature of the original work. Factual works receive less protection than expressive works such as poems or songs.
The amount of the taking. The quality and quantity of the taken material is important. Even a small taking may be an infringement if it is qualitatively important and "goes to the heart" of the original.
The effect on the market for the original. An infringement is not likely to be permitted if it supplants market demand for the original.
Determining fair use in a particular case can be very difficult. The fair-use defense succeeded, for example, in a dispute involving excerpts from an unpublished novel by M.K. Rowlings, best known as author of The Yearling. The accused infringement involved an educational presentation quoting from the work. The copying material was permitted because the resulting work was for the purpose of scholarship, commented on the original, only took what was needed for the purpose of that commentary, and did not supplant the market for the original. In contrast, when Texaco copied research journal articles in full for the purpose of internal research, the court rejected the fair-use defense. Texaco’s copying supplanted the market for the original and required permission from the copyright owner.
When in doubt, seek permission from the owner of the original or a non-infringement opinion from a qualified attorney. Although the quest for permission can be confusing and time-consuming, Thiagarajan frequently seeks permission for the use of others’ material in his articles and books.
"As a general principle," he says, "when I want to use other people’s materials, even if just a paraphrase, I ask, I tell them what I will do, give citation and full credit. I usually write and ask permission. Invariably, I get permission without cost."
When it is not possible or practical to get permission directly from the author, various organizations offer licenses and permission for collections of materials that trainers may want to use.
The two primary organizations providing licenses for publications are the Copyright Clearance Center (CCC) and iCopyright.com. CCC offers two licenses: an annual copyright license and a pay-per-use license. CCC’s extensive rights database eliminates the need to obtain individual permissions.
Normally, recordings sold at retail stores are intended for home use only. Performance rights for recordings or music used at training meetings or corporate events can be obtained from Broadcast Music Inc., the American Society of Composers and Performers, and SESAC Inc.
DVDs and videocassettes purchased or rented at retail outlets also are intended for home viewing only. Permission to use movies in training programs or materials can be obtained through Exhibitor Licensing USA.
Unlike for music and movies, no central clearinghouses distribute photo rights. Two major companies, however, have large collections of photographs that they license: Getty Images and Corbis.
In addition to fee-based services, some copyright owners allow free use of their works with attribution under certain conditions. The Creative Commons web site offers an online search tool and content directories for locating works available for free use. In many cases, these works may be used in commercial training materials without charge.
Within an organization, employees should receive training on copyright issues. Mantyla of Quiet Power recommends that such training be part of an initial ethics orientation, followed by annual refresher programs.
The author is a partner with Pattishall, McAuliffe in Chicago and author of Guiding Rights: Trademarks, Copyright and the Internet (iUniverse, 2003), www.pattishall.com, (312) 554-7922.
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