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At least a few times per year, I receive a call from a client asking if a company employee can use copyrighted material in a presentation. Sometimes the material is a video clip from a movie or television show. Other times the material is music or maybe a comic, and often the employees want to use a combination of several copyrighted works in their presentations. Is there any topic that cannot be addressed in some way by a Dilbert comic? Everybody does this, the client argues. And videos, music, comics and other content are now technologically easy to download and import into Powerpoint or other presentations, so it must be fine to do it, right? Wrong.
The general rule, and indeed, the whole point of the US Copyright Act, is that you cannot copy, use, publicly display, publicly perform or distribute a copyrightable work (this includes texts, videos, music, comics, graphic arts, photographs, video games and other software) without the permission of the copyright owner (which is usually the author of the work or the author’s employer). There are very limited “Fair Use” exceptions that allow for certain uses without the copyright owner’s permission, but those exceptions almost never apply to uses by a business or an employee of a commercial business in a work-related presentation – even a presentation for internal use only.
Specifically, Section 106 of the US Copyright Act allows for uses of copyrighted works without the copyright owner’s permission “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” and even in those cases, the law requires courts to examine the character of the use (commercial vs. nonprofit), the amount of the work used, the type of work used, and the effect of the use on the market for the particular work. It is rare to see the Fair Use doctrine applied to uses outside of schools and news media. So, no, your sales executive’s internal training presentation that includes a video clip of Leonardo DiCaprio in Catch Me if You Can does not constitute an educational Fair Use.
“But what do I tell my sales executive?” the client asks. The legally correct answer is that you cannot use the video clip, or any other copyrighted work, in a commercial business presentation without the permission of the copyright owner. Period. Use without the copyright owner’s permission will very likely be copyright infringement, for which your company could be sued and possibly found liable for monetary damages.
Now for the practical answers to the practical questions that will inevitably follow. Will you get caught? Probably not. What will happen if the copyright owner finds out that you used the copyrighted work without permission? You will probably get a cease and desist letter telling you to stop using the copyrighted work, to destroy any copies of the copyrighted work and threatening a lawsuit. Will you actually get sued by the copyright owner for damages? The answer depends largely on the value of the copyrighted work, the scope of your use and how you respond to the cease and desist letter, but for use of a movie clip in an internal training presentation, probably not. Will it take time to locate the author of the copyrighted work and obtain permission to use the work, and will you have to pay something to use the work? Probably yes to all of these questions.
When balancing the legal answers and the practical answers, consider this: Would you want another company (such as your biggest competitor) using your copyrighted works without your permission and what would you do if they did? And do you want your company to have a reputation of not respecting the intellectual property of others? Sometimes the best answer is simply to follow the golden rule. And if you want to give your sales executive an alternative, there are plenty of free videos, photos, music and other content available online from stock websites, where you can license the content royalty-free.
By: Jennifer Collins
