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.