THE USE OF PROTECTED MATERIALS IN MULTIMEDIA CORPORATE TRAINING AND DISTANCE EDUCATION PROJECTS

IVAN HOFFMAN, B.A., J.D.



        The market for corporate training and distance education often involves developing projects that include not only text but images, both graphic and photographic, as well as music, the spoken word and perhaps other materials.  To the extent that any of these elements is protected by copyright, trademark, or personal rights such as the right of publicity, all of those rights must be “cleared,” licensed so that the project can be legally developed and marketed without infringing on or otherwise violating the rights of any other parties.  Thus, whether the project is for a CD-ROM or DVD, or is for use on the Internet or a corporate intranet or otherwise, the producer of the project must have obtained all these clearances, whether that producer is going to use the materials itself or is going to license the project to others.

        A “producer” in this instance can be a corporate education department or it can be an educational institution or a third party packager of materials who then “resells” the project to others.

        As a preliminary note, the producer should have the market for the project firmly in mind so that when approaching the rights owners, the producer knows exactly what rights are needed.   If the use is merely for students to download or stream off the producer’s web site, whether as a corporate training program, distance education or the like, then that is one kind of use.  If, on the other hand, the producer seeks rights to sublicense this content  in whole or in part, then that is another right as well, as are rights to package the material in CD or DVD format, to incorporate other materials with it including audio, video and graphic materials.  All of these are separate rights that must be specified in the negotiated license agreement.  In this regard, you should read “The Need for Vision” and “The Permission Form.

        This article assumes that some or all of the content of the project, whether text, images or otherwise, has been created by others not the actual producer.

TEXT AND GRAPHICS

        This category covers text of all sorts such as from books, magazines or the like, which are protected under the copyright law.  You must obtain a clearance to use the copyrighted material from the owner thereof, usually the publisher if it is a book, or the author or whoever now owns the same.  If the book is currently in print, it is usually not difficult to find out who owns it.  But if the book is no longer in print but is still copyrighted, then searching out the author or the author’s estate can be somewhat difficult.  But the difficulty does not eliminate the requirement.

        Often content appears in magazines but many times the magazine is merely a serial rights licensee and does not have the right to negotiate further uses.  You can start your search with the magazine but must locate the rights proprietor.

        If, as part of a multimedia project, an off camera voice is going to read the text, then you must obtain additional rights from the text owner to do so.  You may also need to obtain rights from the actor who is doing the reading.  These latter rights may involve union payments as well (see section below).

        If you intend to translate the text, separate rights are involved and must be included.

        All graphics should be licensed as well, no matter how simple they appear to be.  The threshold for “originality” in the copyright act means that virtually anything can be copyrightable.

TRADEMARKS

        While trademarks can often be used within the context of an “editorial use,” since such uses are often unclear and potentially expose the user to infringement claims, the better practice is to license the use of trademarks.   This is especially important if the use is going to be seen as an endorsement, express or implied and in those instances, a license is mandatory.   This is also true when using the name of a person (dead or alive) as part of the project.  We all have rights of privacy and publicity and using a name or likeness of someone for commercial (and sometimes other) purposes can expose the user to liability under both federal and state laws.

        Included in this category may be the use of trademarked and often copyrighted characters such as from cartoons.   These are very popular with producers since coming out with a title featuring a well-known character offers higher visibility in a crowded marketplace.

MUSIC

        There are several rights that are initially owned by the creator of the music and those rights exist in both the song and in the recording embodying that music.  It is important to note that *separate rights* exist in the music and the recording of that music in a particular version.  These separate rights are themselves separated into separate rights and each must be cleared or licensed in order that they be permissibly used in a multimedia project.

        The first right that may be applicable is that of mechanical reproduction of the underlying song.  This is the right that allows a user to reproduce a musical composition on a copy.

        This is the definition of “copies” under the United States Copyright law:

“''Copies'' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.  The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.”
        Given the stress on protecting both copyrights in songs and recordings, especially today, licensing is deemed mandatory and should be for both downloadable as well as streamed music and recordings.

        The second right that needs to be obtained is a right to publicly perform the composition.  Whenever a musical composition is performed in public, this right must be licensed and these are usually handled by ASCAP or BMI.  Since whenever a viewer logs onto the web site containing a copyrighted composition it is a “public performance,” clearances must be obtained.  Furthermore, the Digital Millennium Copyright Act and the Digital Performance Right In Sound Recordings Act also impose licensing requirements for the underlying recordings on certain categories of users especially those deemed to be Internet broadcasters.  Since both these acts are quite complex in their application, the best advice is to license both the song and the recordings.

        Finally, if the music is used in timed synchronization with images, i.e. as a soundtrack to an accompanying video or even as background to a still photograph, then another right comes into play, called a synchronization right.  An appropriate “synch” license must therefor be obtained.

        Separate from the rights in the song are the rights to use a particular version of the song, perhaps off of a CD by a particular artist.  These rights may be owned or controlled by separate copyright owners and therefor separate licenses must be obtained.   Most often, the recording company that manufactures and distributes the recording owns the recording right while a publishing company owns the rights in the song.  The license that is required is known as a “master use” license for it is a deal in which the owner of the recording, the master, gives the right to someone else to use that recording.  As part of the license agreement, the user of the master may have to pay fees to the American Federation of Musicians, American Federation of Television and Radio Artists or others for the right to “re-use” the performances contained on the recording.  Note also the discussion above about the performance license as to the recording.

        Keep in mind, however, that if the producer elects to record the composition without resort to someone else’s recording, no master use license is required, nor any re-use fees.  But this would not eliminate the need for the licenses regarding the song.

PHOTOGRAPHS

        You must obtain clearances from the owner of the photograph.  This is most often the photographer.  When you see a photograph in a magazine or book, it is unlikely that that magazine or book owns the copyright in the photo.  As with text, what is more likely is that the magazine is merely a licensee for some limited use and that all other rights remain with the photographer.  You may obtain clearances, if at all, only by negotiating with the photographer, the photographer’s agent, or perhaps a clearance house.

        You must also obtain permission of the persons depicted in the photograph to use their likeness.   As I stated above, the courts of the United States and some other jurisdictions have recognized a “right of publicity,” a right that derives from the “right of privacy.”  These rights apply to all living persons and, under certain circumstances, those dead.  Our likenesses and even our names may not be used for commercial purposes without our consent, which consent, if it is given at all, usually comes at a price.   If the images used are of “ordinary” people, non-celebrities, at the very least you must obtain or have the photographer represent that he or she has obtained releases in writing from each of those whose images are distinguishable in the photograph.  If these are celebrities, the fees go up, even assuming they are willing to allow their images to be so used.

        Another interesting note is that also under certain circumstances, buildings may be the subject of copyright.  You may need permission to either take a photograph of such a work or obtain a separate clearance from the copyright owner of the actual building in addition to the copyright owner of the photograph you use.  Architectural works created on or after December 1, 1990, and any architectural works that were not then constructed and
embodied in unpublished plans or drawings on that date are eligible for protection.  (There are some qualifications on this protection so you should consult with an attorney about the same.)

        And even photographs of now public domain works of art, perhaps called “classic art” such as the Mona Lisa or the like, may also be protected by copyright.  While the underlying art may be free to use, a particular photographic depiction of that free artwork may be separately copyrighted and so a clearance must be obtained for using that photographic reproduction of the artwork.

        Needless to say, if the underlying artwork is still covered by its own copyright, then permission to use it must also be obtained.  These rights usually reside with the artist or the artist’s estate.

        When clearing certain works of art, an additional right must be obtained.  Under the copyright law of many countries, including the United States, an artist that produces a limited number of copies of a visual art has what is known as a “moral right.”  This right protects the artist from changes made to the art and that the artist’s name is properly used to identify the work.

FILM, TELEVISION AND RADIO

        You must obtain clearances from the owner of the clip, whether from television, film or radio.  This is usually the film studio, television producer or radio show producer, but may not be.  It requires some checking to see who owns what.

        You must obtain clearances from each actor who has appeared in the clip, even those who are now deceased, the latter because of the right of publicity issue and/or union requirements that I mentioned above.  Additionally, you must clear rights from writers and  directors.

        To amplify a bit on the role of unions and guilds, in the area of film, television and radio, as in music, these organizations play an important.   Because of this, when licensing a clip, you will most likely be required by the terms of the license to pay and be responsible for all fees due the unions and guilds for the use of the material.  These are referred to as “re-use” fees.  You must check with Screen Actors Guild, Writers Guild, as well as with the American Federation of Musicians, American Federation of Television and Radio Artists and perhaps other guilds representing other talent.

FAIR USE

        There are some potential legal issues facing educational institutions and others who seek to avail themselves of the “fair use” provisions of the United States copyright (and trademark) laws.  Rather than cover them all here, you should read “Fair Use In Online Education And Web Based Training.

        The important point here is that such exemptions may simply not exist within the online or non-classroom environment and thus the main premise of this article, license in all situations, should be the producer’s goal.

OVERVIEW

        No matter what other media you seek, you will need to include in the discussion and ultimate license issues such as:

1. the nature of the usage.  These issues include whether for CD-ROM, The Internet, or  both, and exactly what platforms you intend to develop the material for (Windows, DOS, the Mac, DVD etc.);
 
2. whether you need the right to use the material for marketing and promotional campaigns;
 
3. what languages and territories you need, which also entails perhaps additional clearances since not all owners own all rights for all languages and territories;
 
4. how much time you need to adequately exploit the material;
 
5. and perhaps a host of other issues depending upon the exact nature of your intended use.
CONCLUSION

        I have not tried to be exhaustive of all the issues in this article and each of those issues and more must be considered in any use of material, whether licensed or created by you.

© 1996, 2000 Ivan Hoffman

[NOTE: this article has been adapted from an article entitled “The Use of Protected Materials in Multimedia Projects” that I wrote in 1996.  It contains new matter directed at the corporate training and online education markets.]
 

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This article is not intended as a substitute for legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  You should consult with an attorney familiar with the issues and the laws.
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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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