Sara Alrehaili (she/her) Legal Intern Sara is a 2021 LLM graduate from Boston University School…
As the world has moved to address COVID-19 through social distancing, more and more events are being moved to online formats. This method of presenting over the internet has its advantages, allowing for geographically disparate people to participate and for recordings of such events to be shared widely. However, like most advances in technology, these new formats raise concerns about how copyright law applies to webinars and the like. VLA is here to help answer your most pressing questions.
What is Protectable by Copyright?
Before we go any further, we need to answer the question of whether, and to what extent, a webinar is protected by copyright. The baseline definition of a copyrightable work is “an original work of authorship that is affixed to a tangible medium.” Clear, right?
Normally, a live webinar of a lecture or panel discussion is not copyrightable because, while it is an original work, it is a transient performance and is not fixed in a tangible medium. However, the act of pressing record on your Zoom meeting creates the “tangible medium” needed to make the recording of the webinar copyrightable. Additionally, the copyright for the overall recording also encompasses the underlying aspects of the presentation, such as the slide deck, the transcription of the speech, and the audio recording, which are each individually copyrightable as well.
While all of this is copyrightable, there are some limits to what you can protect. Copyright does not protect the underlying ideas or concepts that are presented, any titles or other short phrases, or information presented that is more factual than creative, such as instructions or recipes.
Who Owns the Copyright?
Copyright initially belongs to the author who created the work, or to multiple authors if jointly created. This applies to the webinar as well as the underlying slide deck, transcript, etc., all of which can have different authors. The person who put together the slides owns the slides, the person presenting owns the transcript of their words, and so on. The owner of the recording thus owns what is called a “derivative work”, which includes the underlying materials along with rights to the arrangement and composition of them as a whole. The legal protections for such derivative works are limited if the owner does not have permission to include the underlying materials.
If the presenters of the webinar are acting as employees or have contracted with the organization to give the presentation, their presentation may be treated as work made for hire. Alternatively, contributions to an audiovisual work are also treated as works made for hire, as “specially ordered or commissioned works.” In works made for hire, the organization that employs or paid for the presentation is treated as the author and would own the copyright to both the recording and all of the underlying materials.
However, if your organization hopes to treat the presentation as work for hire—particularly if it isn’t the employer—make this clear in a contract with the presenter to avoid litigation and bad feelings.
Consider the relationship you want to want to have with your presenters, and what their expectations would be regarding the ownership of their work.
How Do You Protect Your Copyright?
Whether you are the presenter or the organizer of a webinar, you will want to protect your content against unauthorized use, whether by attendees or other people down the line. While it is no longer required for works to include copyright notices in order for them to be legally protected, it is still a good practice, as it notifies users that the webinar is protected and lets users know who to contact in case they want to license or use the webinar.
The simplest thing you can do is give clear notice that you are claiming copyright on the presentation. This can be accomplished by including a copyright notice on the slides, which can consist of the copyright sign, ©, followed by the name of the author (whether the presenter or the organizer) and the year. You can also make specific requests to your audience at the beginning of the presentation, such as requesting that attendees refrain from making recordings.
It is also possible to register the recording of your webinar with the United States Copyright Office, which involves filing an application, paying a fee, and submitting a deposit copy of the work to be copyrighted. Though there are benefits to formally registering copyright (litigation being the crown jewel), non-registered copyrights are still given some legal protection, so it’s a good idea to speak with a lawyer to discuss the pros and cons of registration prior to going down this path.
What Materials Can I Include in My Webinar?
So far, we have been talking about ways to protect your webinar from being infringed upon, but it is also necessary to think about whether you are infringing on anyone else’s work. This may happen if a presenter uses an image, song recording, video clip, or other material that is owned by someone else.
One way to deal with this issue is by obtaining permission (licensing) to use the copyrighted materials from the owner. For this, you would need to identify and contact the owner and negotiate the licensing terms for your use in the webinar, as well as the reproduction of the material in any recordings of the webinar that are distributed. This can be complicated, so a lawyer will likely be necessary.
For many small organizations, this may be a far too burdensome an approach to take. Instead, your organization may rely on the doctrine of “fair use,” an exception to the owner’s exclusive right to reproduce their copyrighted work. Fair use allows for use of another person’s copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. However, bear in mind that fair use is a defense against a copyright infringement claim, not an affirmative right!
However, while fair use theoretically protects your use of copyrighted material without a license, it does not prevent, and can only be used in response to an unhappy copyright owner submitting a copyright takedown notice for using their material or YouTube’s ContentID system flagging your video. So, if you plan to take this route, you will want to make sure you have a good defense if you do get a strike or are flagged. Some key questions to consider before using material under the principle of fair use:
What is my purpose in using this material? The law is more inclined to protect you if you are using it for nonprofit educational purposes, and less inclined if it is for commercial or profit-based purposes.
What is the character of my use of the material? Does my use transform or recontextualize the original material, or am I merely sharing another person’s work with limited changes?
What is the nature of the copyrighted material? Including videos or excerpts that contain factual information may cause fewer problems than using someone else’s creative or analytical work in your presentation
How much of the material am I using? A brief clip of a song or movie, or an excerpted quote, may be fine if it is used to give context to criticism or commentary; displaying the whole duration of a song or video may not be.
How will my use of the material affect its value to the owner? Using an excerpt from a book to discuss an unrelated topic will have little effect, whereas summarizing the entirety of that book may make potential customers not feel the need to buy the book.
Finally, as the webinar organizer, you can consider some legal approaches to protect your organization in case someone does claim infringement. One way to approach this is to include language in your speaker agreements with the presenters that has the presenter represent and warrant that the material in their presentation is either their original work, is under license or permitted to be used, or can be used under fair use or the public domain. Additionally, if your organization is particularly concerned about these risks, you can also include indemnification language, where the presenter agrees to cover legal costs and damages in the case that the organization is sued for infringement. Finally, as an additional or alternative method, you can work with your insurance broker to obtain insurance to cover the cost of defending against an infringement suit.
How Can I Distribute My Webinar?
Once you have finished your webinar, you may be thinking, “how can I share this with the world?” There are many platforms and methods in which your webinar can be distributed, but whichever manner you choose, you will want to make sure you still have control over your work. In all distributed material, make sure you have similar copyright notices visible, with the copyright sign ©, the author’s name, and the year.
Whether or not you are making money on the distribution of the webinar, you will want to make sure you have all the permissions from the presenters. If the webinar is treated as work for hire, you will have full ownership of the webinar and all the underlying works in the webinar. If not, your rights to distribute the webinar are limited by the rights of the presenters to control the reproduction of their underlying works (i.e. slides, transcript of their speech, etc.). Whether this involves royalties, one-time fees, or simple permission is not mandated by the law, and is entirely up to you and the presenter. For this reason, it is important to have these discussions and get this in writing, prior to recording a webinar, so that all parties are on the same page and won’t get in a fight down the line.
Additionally, you may want to think about the terms for licensing your content. If you want to retain full ownership and control, you can release it with all rights reserved so that people may watch your webinar but not share or use it without your permission. However, if your goal is to share and encourage the distribution of your ideas, you can consider using a creative commons license, which allows you to specify whether you want to freely allow non-commercial and/or commercial use. This license also enables you to denote if you want to allow others to make derivative works using your materials.
In summary, while online webinars open up a world of new questions for organizations, the answers can be fairly straightforward. Your organization and your presenters each own the parts of the presentation that they created, and you should have clear communication about how you will use each other’s contributions. You should clearly communicate to attendees and to anyone else who may later access the webinar what they can and cannot do with the presentation. And finally, if you or your presenters use another person’s material in the webinar, you’ll want to either get permission to use the materials or come up with a good reason why you don’t need permission. And, as always, a good lawyer can help identify what questions are not straightforward, and help you figure out answers when it is not clear.
Joe McClintock is a legal intern at the Arts and Business Council of Greater Boston, and a law student in Northeastern University’s graduating class of 2022. Joe also is a published tabletop game designer and is a multi-instrumentalist who plays music in Boston.