Category: Copyright law

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Copyright Law: Using music or other audio in training and presentations

Over the past few weeks, you learned about copyright law related to images and content created with AI, specifically when used in training and presentations.

But what about copyright concerns regarding the use of music or other types of audio?

Several years ago, I was told that you could add 30 seconds of copyrighted music to your training or 10% of the total audio playtime without obtaining permission from the content owner. It turns out that that was bad information.

Copyright expert Linda Wolff Rohrbaugh states, "That myth arose from an education working group that tried to create safe harbor standards for face-to-face education. No court has adopted the standards, though apparently, the group had an excellent public relations effort because the myth spread far and wide and continues to persist." 

Rohrbaugh went on to say, "Audio is not free to use. Whether with or without music, recordings are copyrightable and have the most complex maze of protection possible. Why? There are two copyrights in a sound recording … one for the author and another for the recording artist/producer. Both need to be cleared if using a recorded song or other audio piece. Plus, each copyright has different protection periods. If the author’s rights have expired, you may still need clearance for the sound recording if it is still under copyright. Failing to obtain proper permission can result in a lawsuit for up to $150,000 per song or audio clip used, even if you didn’t make any money."

Audio performance rights are held by the audio's author (also known in music as the composer or songwriter) and apply to any performance of the notes, melodies, and/or words for people other than just close friends and family. It applies whether you are making a cover song to post on social media for fun or using someone’s recorded version in your online course.

Authors may independently handle copyright release requests or may have given these rights to an agent such as a music publisher. There may be multiple copyright owners and agents, and you’ll want consent from ALL of them to be safe.

Music rights owners can be researched online using a database called SongFile.

Use Strategies

If you want to use audio in your training legally, stick to audio from the public domain—from 1922 or earlier. The variety, especially of sound recordings, is a bit limited since sound recordings didn’t exist for too long prior to 1927. Music in the public domain can be freely reused BUT (and this is a big caveat!), if you grab a recorded version of that public domain music, you must check the date the recording was made. If it was after 1927, you will still need consent from the recording artist/label.

You could license the clip from the owner or their agent. Music libraries such as MusicBed are a great source for original music clips in various genres and lengths. Pricing is determined by how you plan to use the music. A popular source of publicly released music is Easy Song Licensing. They have pre-negotiated the rates for some music or can negotiate on your behalf to get the rights to use clips that require independent licenses. 

If you have time and talent, you can create and use your own music as you see fit. Remember to put your copyright notice on the presentation because everything you record will be copyright-protected from the moment you save the file, but the notice entitles you to more money if someone borrows your work without permission.

To learn more about copyright law as it relates to training and training support materials, check out this vILT course led by Linda and Kevin Siegel.

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Copyright Law: Using Images for Training

You've created training with Microsoft PowerPoint or an eLearning development tool such as Articulate Storyline, iSpring Suite, Articulate Rise, TechSmith Camtasia, or Adobe Captivate. Your training includes one or more copyrighted images.
 
If you are the copyright owner, you can reproduce or make copies of your images, distribute them to the public, and create derivative works based on the initial image. (Derivative works, also known as “adaptation rights,” include some or all of the original image and add new material to create something different from the original piece. For example, when you revise or update a website, you create a derivative work based on the old website. Other typical derivative works include translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations, or any other form in which an image or video may be recast, transformed, or adapted.)
 
Copyright owners also have the right to publicly display the image at a place open to the public or to a substantial number of persons outside the usual circle of a family and its social acquaintances. Examples include using a photo in an eLearning project that will be marketed to the public, posting a picture on a website, or posting an NFT (a “non-fungible token,” which is a one-of-a-kind digital artwork, image, sound, motion picture, or anything else that can be downloaded and turned into an artificial intelligence algorithm) of a photo on an online marketplace.
 
But what are your rights to use the copyrighted image for training if you are not the copyright owner? Well, usually, you have no rights and should get permission. The fair use right to free speech is available to those who must use an image for criticism, commentary, parody, research, scholarship, or educational (face-to-face nonprofit) purposes. But even then, fair use is a defense that needs to be raised and proven to prevail.
 
The court will first consider the purpose of the use—whether commercial, promotional, or more about community benefit or criticism. Why would claiming fair use not work so well for you? A typical training course is a work made for commercial purposes, whether you sell the course or give it away to promote a platform or provider.
 
If there is a commercial purpose for the training, fair use is rarely found. Having a commercial purpose overrides the rest of the analysis in most cases. So, if your training is intended for an asynchronous audience or profit, getting permission is the wisest decision you can make because a fair use claim will likely go against you.
 
From a financial standpoint, if you decide to fight and claim fair use, the attorneys’ fees you have to pay to defend you are likely to come close to or even exceed the damage claim raised by the copyright owner, making it a poor business decision to pursue your “right.” Even if you have advertising injury insurance, your insurer may press you to settle rather than pursue your “rights” in court because it will typically hold their costs down.  
 
If the copyright owner discovers your use and sends you a cease and desist letter along with a demand for payment of damages, take it seriously. You can certainly try to negotiate with the owner to reduce the amount to pay in settlement of the claim, but if you ignore it, you may find yourself on the receiving end of a lawsuit that will likely go against you. The best, least expensive way to avoid unwanted litigation and a sizeable monetary penalty is getting permission in advance.

To learn more about copyright law as it relates to training and training support materials, check out our upcoming training event led by Linda Wolff Rohrbaugh and Kevin Siegel.