Organizing Your Message: Are you a copyright criminal?

It's getting more tempting to infringe on copyright when creating presentations, thanks to many new scanning and duplicating technologies as well as proliferating Web content. But writers, designers, artists and copyright owners are becoming more aggressive, using new tactics and technologies to enforce their rights. If you don't know the rules, you could end up on the wrong side of a lawsuit.

You've seen them at work. Sometimes brazen, sometimes oblivious, they break the law without giving it a second thought. Maybe, without even knowing it, you're one of them.

They're copyright claim-jumpers -- presenters who slip "Dilbert" cartoons, photographs scanned from magazines, graphics downloaded from the Web, photocopies of trade-journal articles, audio files, video clips or CD music into their presentations or handouts with little or no understanding of how they're trampling on someone else's copyright.

Some do it knowingly, assuming their chances of getting nabbed are a small risk for the big payoff of easy access to high-quality prefabricated content. Others are unaware of how their seemingly benign reuse of pre-existing material -- articles, pictures, music, songs, scripts or film clips -- violates copyright law.

Autumn Bell, a training specialist and frequent presenter for the University of New Mexico, says she witnessed her share of copyright abuses in a past life working for a telecommunications company. There, she worked with managers who ordered people to copy other companies' training materials to save money. She also saw plenty of lesser violations, such as flagrant photocopying of manuals and books for mass distribution. In six years, Bell says, "Never once did I hear the word copyright spoken."

Bell believes that many corporate presenters and trainers adopt a "don't ask, don't tell" attitude when it comes to unlawful use of copyrighted material. "The thinking is, 'As long as I don't know, then I can use ignorance as an excuse,'" she says. "They don't want to learn the nuances of copyright law because they figure as long as they can plead ignorance, they'll be safe."

Cold, hard reality

It can be easy for busy presenters to give copyright concerns short shrift; after all, there are deadlines to hit and rehearsals to do. And sometimes that article you read last week in Forbes Magazine or that photo you downloaded from the Web yesterday fits perfectly into the presentation you're giving -- tomorrow. Copyright permission? Who has time? Some token attribution ought to do it, you figure. Surely the copyright owners will welcome the free advertising, right? And what are the chances that they'll even find out?

The reality is: Whether the bulk of your presentations are in-house or to external audiences, your odds of being caught violating copyright are improving every day, as are your chances of paying a stiff fine. Statutory damages for infringing on copyright can hit $20,000 per violation, and they can go as high as $100,000 in some circumstances of willful violation -- and that's above and beyond the fine for actual damages. Furthermore, commercial copyright violation involving more than 10 copies and a value of more than $2,500 is now a felony in the United States.

In one recent case, a corporation paid a seven-figure settlement for its unauthorized photocopying of articles from a trade journal and archiving those copies for internal distribution. With similar violations occurring almost daily in corporate America, and with an increase in piracy on the World Wide Web, licensing organizations, performing-rights societies and other copyright cops have stepped up activity to enforce their rights.

The Training Media Association, a watchdog for training-video vendors, offers a $10,000 bounty for reporting illegal copying or unauthorized "public performance" of off-the-shelf training videos. A temporary-employment agency recently paid a six-figure out-of-court fee after one of its employees reported it to the TMA for making illegal copies of four videos (the agency had no license to do so) and sending the copies out for use in its 50 offices.

United Media, the distributor of "Dilbert" cartoons, has been asking people to take illegally imported "Dilbert" cartoons off their Web and intranet sites. ASCAP and BMI, two organizations that license the right to play copyrighted music in public settings (including most business-presentation scenarios) have reportedly added large conference centers and hotels to the list of sites they patrol to ensure that those using even small selections of pre-recorded music in presentations are properly licensed to do so.

How prevalent is abuse?

Is all this talk of copyright abuse overblown? Is the perceived need to protect yourself from prosecution just another anal-retentive legal formality? And aren't the most flagrant abusers a small segment of the presentation community? You'd be surprised at the answers.

Although many cases of abuse undoubtedly are small or accidental -- busy presenters who in good faith give full attribution but don't seek permission; others who are unaware of public performance rights or who stretch the fair-use doctrine to its limits -- interviews and research conducted for this article indicate a serious lack of knowledge about copyright law among frequent presenters. A two-month review of comments posted to listservs frequented by presenters and trainers, for instance, suggests that many people routinely violate copyright law, and that there is a general lack of understanding about what constitutes legal use.

Indeed, a 1993 survey by the Training Media Association found that more than 30 percent of videos in survey respondents' corporate libraries were illegal copies, and more than 75 percent of printed training materials in those same libraries were illegally copied. (Survey responses were anonymous.) And TMA director Bob Gehrke says the problem may have worsened in the six years since the study. A typical copyright violator, Gehrke believes, is someone "who thinks he can be a hero by saving his company some money, especially if faced with a tight budget."

A quick primer on copyright law

With so much seemingly gray territory in the area of copyright, how can you make sure you're on the right side of the law? Well, to avoid breaking copyright law you first need to understand it.

Under the Copyright Act of 1976, the basis of U.S. copyright law, copyright is automatic when an original work is first "fixed" in a tangible medium of expression. That means material is protected by copyright at the point when it is first printed, captured on film, drawn, or saved to hard drive or disk. (All of the e-mail you write is copyrighted, for instance.)

Among original works of authorship cited in copyright statutes are "pictorial, graphic, audiovisual and sound recordings." These are broad categories that include the GIF and JPG image files and WAV audio files commonly found on the Web; U.S. copyright law has proven quite adaptable to new technologies that didn't exist when laws were written. The farsighted statute covers fixed works "now known or later developed."

A notice of copyright (as in, "Copyright 1999 John Smith") is no longer necessary to affirm protection. Some presenters believe that if a work doesn't include the copyright notice, they're free to use it without permission. Wrong. If a work was put in "fixed" form, and it has even a minimal amount of originality, it's protected by law, copyright symbol or no.

Copyright only applies to original expression, however. Ideas and facts cannot be copyrighted, only the original way in which that idea or fact is expressed. Thus the data and facts found on a Web site aren't protected by copyright -- but the site creator's unique expression of them is.

Copyright owners have five exclusive rights: The right to reproduce the copyrighted work. The right to distribute copies of a copyrighted work to the public. The right to prepare derivative works, or creations based on the original. The right to perform the copyrighted work publicly. The right to display copyrighted work publicly.

Abuse any of those rights -- that is, photocopy, distribute, customize, publicly perform or display someone else's original work without permission -- and you're breaking the law. It's small comfort to know that copyright law is primarily civil law, not criminal law, so if you're caught red-handed, you'll likely get sued, not charged with a crime. Copyright violation might not put you in jail, but it can cost you plenty.

Copyright protection now lasts for the lifetime of the author or creator, plus 70 years. Thus if Stephen King writes another book, or 10, this year, and then passes away due to a freak accident on Halloween night, copyright on his books would remain in effect until 2069. After those 70 years, it passes into what's called the "public domain," free to be used by anyone without permission. For example, music by long-dead composers such as Bach or Beethoven can be freely used in presentations. But -- here's the catch -- an individual performance of Beethoven's music by a contemporary group like the New York Philharmonic is a different story. That public performance itself can be copyrighted, and you'd need a special license or permission to play it for anyone other than your friends or family at home -- anyone like, say, an audience of sales trainees. So unless you're the one playing the Fifth Symphony on your penny whistle, you'd better contact the orchestra before dropping a piece into your electronic suitcase.

Other works in the public domain -- those you are free to use without having to worry about copyright -- include those created by the U.S. Government. So, for instance, you don't need permission to use screen captures of government Web sites as examples of good or bad design in a class on designing Web pages. But don't assume this applies to foreign countries as well. The government of the United Kingdom, for instance, does claim copyright for its works. So travel with care when reusing governmental works found on the Internet or elsewhere.

The "public performance" of copyrighted video or audio is a right unto itself, and requires special permission or a license, regardless of whether you own the video or audio (the CD, for instance). Tom W. Bell, a professor specializing in intellectual property at the Chapman University School of Law in Orange, Calif., says copyright statute largely defines public performance as "showing, playing or displaying the works at a place open to the public, or at any place where a 'substantial' number of persons outside of a normal circle of family and social acquaintances is gathered."

What constitutes a "substantial" group? If you're training two or three people in a cubicle and playing a CD as background music, no license is needed, Bell says. But any audience size beyond that is a gray area, and possibly fair game for the copyright police. "You need to trust your gut in most of these cases and use common sense," he says.

Also remember this, says Bell: Copyright is violated whether or not you charged money in your reuse or duplication of copyrighted works. In other words, you'll be liable even if you didn't profit a cent from reuse or copying of a stock photo, cartoon, piece of clip art, illustration or magazine article without permission or a license to do so. And while placing proper attribution on a work is laudable, it doesn't protect you from liability (see quiz question No. 2, page 40). For instance, photocopying and reusing this article in a handout, or scanning one of the magazine's photographs, then placing "Reprinted from Presentations magazine" on it -- without getting permission from the copyright owner, Bill Communications Inc., to do so -- won't protect you from prosecution.

Avoiding copyright trouble: Permission and licensing

What's the best way to keep the copyright cops from knocking on your door? This is the best rule of thumb: Always assume that any pre-existing work you'd like to use is copyrighted work and that it requires permission from the copyright owner to use or copy.

As Brad Templeton, author of the popular "10 Big Myths about copyright explained" Web destination (www.templetons.com/brad/copymyths.html), says, don't rationalize that your use of the material doesn't hurt the copyright owner, or assume that it is a welcome source of free advertising. Ask them. "It's up to the owners to decide if they want the free ads or not," Templeton writes. "If they want them, they'll be sure to contact you."

What if you want to use only a small fraction of a copyrighted work? The Copyright Act includes a "fair use" exception, granting the ability to use copyrighted material without written permission from the owner. (See "Fair use: The presenter's quicksand.") But, although fair use appears intuitive, grossly liberal interpretations of the clause constitute misuse.

In some cases, copyright owners are easy to track down through the contact information listed on their materials. Individual authors or smaller organizations in particular are usually flattered by such requests and willing to negotiate fair terms, often allowing you to reuse their material for free with proper attribution.

In other cases, locating and negotiating with copyright holders can be downright frustrating. There's no requirement that they be any easier to find than J.D. Salinger, or that they return your queries before a presentation deadline. Simply identifying true owners can also be tricky. In the case of some trade-journal articles, the true copyright owner may not be the publication but the article's author. The same goes for photos in magazines or stock pictures on the Web; the photographer may still hold the copyright. The copyright owner may also have passed away, leaving rights issues or reuse policies unclear under his or her estate.

It's up there, so why can't I use it?

The Web is a particularly alluring temptress, beckoning with its wide selection of easily accessed content -- clip art, fonts, audio files, stock photos -- that promise to breathe life into your presentations. If you're vulnerable to the lure, remember this: Just because materials are on an "open" Web site doesn't mean they're in the public domain and free for you to download and reuse or copy.

"Too many people still assume that because it's freely accessible on the Web, it's freely available to reuse," says Professor Bell. "The right for you to view something on the Web is different from the right for you to display or perform it on your own site or presentation."

To be in the public domain -- and free of copyright complications -- information on the Web must have been placed there "expressly or deliberately" by the copyright owner himself, most obviously with an accompanying note saying, "I grant this to the public domain." Plenty of copyrighted works have been posted to the Web without authorization of the copyright holder. If you reuse that information without permission, you're breaking copyright law. Lack of knowledge about whether the information you take from the Web has itself been illegally copied or posted is no defense.

On his "10 Big Myths" Web page, author Templeton refers to the time the online news service Clarinet paid a fee to publish one of humorist Dave Barry's columns to a large Usenet audience. One person forwarded the column to another mailing list without permission, got caught, and the newspaper chain that employed Dave Barry pulled the column from the Internet.

Thus, lifting clip art, fonts, icons, stock photos, WAV sound files or any other content from a Web site for reuse in your handouts or presentation, without written permission or a license to do so, is clear copyright infringement. Bell and other intellectual property attorneys say that the forward-looking language in the copyright statute -- "fixed in any tangible medium of expression, now known or later developed" -- clearly covers Internet images and audio file types. GIFs and other graphic image files are akin to "photographs, drawings, logos or other pictorial works" recognized by statute and case law.

Purchasing "royalty-free" content is one way around the problem. Here you typically pay a one-time fee for unlimited use (with some restrictions) of music, stock photos, graphics and the like in your presentation materials. Because content-sellers have "bought out" or cleared copyright issues, you don't pay royalties on each use of the material. Organizations offering royalty-free images and music are proliferating on the Web.

There are a few caveats, however. Because the Web is a haven for unscrupulous operators, be sure those from whom you are buying images do in fact hold the rights to them and are authorized to resell them. Playboy magazine is one business entity that has had problems with people taking images from its Web site, then building their own picture archives and selling access. Some legitimate clip-art vendors have also seen unauthorized Web sites lift and resell their wares. Read the fine print on your license carefully, recommends Woody Johnson of the Copyright Clearance Center in Danvers, Mass. "If your license says you bear all responsibility for use of the images once you've paid a one-time fee -- beware," he says. "The seller should bear some responsibility as well."

Tracking violators -- new tactics

Technologies such as "watermarking" software also are making it easier to track down copyright pirates on the Internet. Digital watermarking places a subtle yet visible mark on an image that carries telltale information about its source. Watermarking can be integrated into Photoshop and other graphics programs to allow creators to save images with embedded copyright information without visibly altering the image. That identifying information is visible to a special reader program when a watermarked image is downloaded and opened. Other programs can then scan the entire Web for watermarks and report unauthorized uses of copyrighted content.

A similar concept is used for downloadable CD-quality audio files -- and most of those "watermarks" can withstand translation to analog and back to digital form. Experts say vendors may soon stamp audio files for sale on the Web with the name of the buyer, date purchased and additional ID. That way, if the purchaser illegally posted a copy of the audio to his Web site, the copyright holder could trace copies others may have downloaded back to the original buyer.

The new reality

In this environment of increasingly sophisticated tracking mechanisms and heightened sensitivity to copyright issues, it's just common sense for people who use outside materials in their presentations to be aware of potential copyright violations and to take the necessary steps toward compliance. At best, getting caught can be embarrassing. At worst, it could cost you and/or your organization an alarming amount of money -- and maybe even your career.

Dave Zielinski is a freelance writer and editor based in Minneapolis.