EPS 57 - To Quote an Expert: “Using Someone Else’s IP Might Cost You.” Transcript

Erin Austin: Hello ladies. Welcome to this week's episode of Hourly to Exit. Today we're gonna talk about what happens if you want to use a thought leader's book in your course or workshop. Now, I've received this question a few times recently, so I wanted to. Pop in and have a conversation about that. Now, for some of you, someone has literally written the book on the topic that you wanna cover in your course or workshop, so it makes sense to you to use, you know, portions of the text.

Erin Austin: Maybe there's some examples in there, some insights for you to put it on slides or to incorporate it into the accompanying workbook. And you would very happily give the thought leader credit. You would also encourage everyone to buy the book since you personally believe that it is required reading for anyone doing work in your space.

Erin Austin: So that would be fair, right? They'd get credit. You'd encourage everyone to buy the book. So, Of course, I cannot answer that for you because that would be giving you legal advice. So whether or not you can use someone else's material without asking for permission is fact specific. By that, it means. If and how you can use somebody else's material depends entirely on the specific facts related to your use.

Erin Austin: So that can only be determined on a one-on-one business after looking at the totality of the issues surrounding the use. However, because it comes up so often, I am going to give you a mini lecture and then I will talk about how to get permission to use a book in your course. So I wanna start by separating this use from teachers in a classroom.

Erin Austin: People will often refer to their experience, you know, being in the classroom, you know, at college level, typically, um, in academic setting. And that, um, you know, frequently they'll get handouts that include, um, other people's work. So this does not apply to you. This does not apply to your expertise based business.

Erin Austin: You are. Leading workshops or teaching courses for profit. This is your business. This is a commercial use, not an academic use or educational use. So that, uh, use by teachers in the classroom is not applicable to your use. Secondly, I wanna make sure that we don't ignore the realness of the items that you get off the internet.

Erin Austin: You know, intellectual property rights are assets. I know you know this 'cause you know, I'm always telling you. Um, you know, but, but, Still, there's something about being able to download something off the internet, um, without paying for it, that somehow people aren't completely understanding the real, um, the ability to possess something that you can download off the internet.

Erin Austin: So intellectual property rights, I mean, they are real assets. They are owned and registered. They can be bought and sold. They can be licensed or loaned. They can be divided. They can even be inherited. So in our particular circumstance, when we're talking about books, we're talking about copyrights, is the specific type of intellectual property rights that we're talking about.

Erin Austin: So as a brief refresher, you know, copyright protection grants, the owner, the exclusive rights to do all of the following. To reproduce the work, i e make copies to create derivative works such as, you know, turning a book into a movie, distribute copies to the public. That means like to sell it to the public.

Erin Austin: Perform the work, you know, take a play and put it on stage. Display the work publicly, like artwork or transmit the work publicly, such as over the airwaves. And you also have the exclusive right to authorize anyone else to exercise any of those rights. So that would be such as a license, um, a publishing agreement, a you know, distribution agreement.

Erin Austin: So intellectual property rights that the copyright owner of that book are just as much of an asset to that owner as their car or their house, and they have just as much right to the exclusive use of their car. Or their house as they do to their intellectual property rights. So I want you to think about the exception to those exclusive rights as narrowly as you think about exceptions to exclusive use of your property.

Erin Austin: I mean, you don't think that, you know, I have exclusive use to my property unless, you know, I'm not gonna notice that you're using it. You know, the exceptions to use of your property. I'm not talking about physical property, would be, you know, Emergencies or some sort of legal action that results in an IMiD domain process, but you don't get to use somebody else's property, um, just because it'd be more convenient or you don't get to use somebody else's property because they're out of town and they'll never notice, or you don't get to use the property because, you know, it's so large that, you know, if I just.

Erin Austin: Go to the back of their property and do some hunting. No one's ever gonna notice it's still their property. They still have exclusive rights about how that property is used. And the same thing applies to intellectual property assets. Someone owns the rights to exploit it exclusively. So I'm going to use this as an opportunity to talk about my parallels between, um, you know, inventory in the physical sense of inventory, the kind that you can put on a, um, financial statement and the way I like to talk about inventory in our expertise based businesses.

Erin Austin: So when we look at the. Definition of inventory. We have raw material, we have works in progress, and we have finished goods. And by the way, I did do a deep dive about the parallels, um, about. Taking inventory of our intellectual property in episode, um, FIF 53 if you are interested in, in finding out more about that, that conversation.

Erin Austin: But to briefly recap it, I talk about, you know, the raw materials in our expertise based businesses, business. Those are the foundational parts of our expertise. So those are original ideas and the firsthand experiences that we have, you know, as we are probably as an employee, as we're growing our area of expertise.

Erin Austin: As we go out on our own, the client work will help build our expertise. We might get certifications, we'll do trainings, continuing education. Maybe we do our own research and even the work that we engage subcontractors to do. 'cause a lot of times we'll have a subcontractor who knows something better than we do, 'cause that's their expertise.

Erin Austin: And so all these things are the raw materials that are the foundational parts of our expertise. And then we move on to our works in progress. So as we develop our expertise, we start to notice patterns and we start to create internal resources so we can be, uh, more efficient and more predictable in the results that we deliver to our clients.

Erin Austin: So these are things like our system and, and processes, SOPs, templates, frameworks, and methodologies that we use internally. Those are our works in progress. And then we have our finished products. When we develop our expertise to the point that we're ready to graduate from one-on-one services to creating scalable revenue streams, and we create those finished products.

Erin Austin: I look at that as our finished product inventory. So those are things that we are selling internally, externally, sorry, like group training and courses and books. Um, templates, you know, templates that we're selling and when we're licensing our expertise as well. So from an inventory perspective, the thought leader's book, that is her finished product.

Erin Austin: It is the culmination of her expertise and she's used it to package it into a new revenue stream that she is selling for profit. And so, It reminds me of the Picasso example where we've all heard this one where someone comes up to him in a restaurant and they ask him to do a drawing on a napkin and he does a little drawing and then he charges her, you know, a million bucks, I guess it is.

Erin Austin: And like, why you just, you just wrote that on a napkin. Well, it's, it's, you know, the reason I was able to do that is 'cause my, I spent a lifetime perfecting my craft, and that's what that. Book this thought leader's book is a career of perfecting her craft and putting it into this finished product. And so she's earned the right to the exclusive use of that product.

Erin Austin: And that same book when it is in your hands, is raw material for your inventory. It is something that you are going to be using as an influence. Um, or at literally an element of your course or workshop. So, um, we're, you know, whether we're using it as an influence is a separate conversation. If you literally want to use parts of her book in your course or workshop, then that is the same as, you know, the part.

Erin Austin: Uh, you know, the steering wheel in a car, like you don't get to get the parts for your, for your finished product for free. You do need to pay for that. That is a cost of doing business. You know, I don't think there is any scenario where we would think that if it was a physical product that we would be able to take somebody else's.

Erin Austin: Um, someone else's finished product. So if I am a screw manufacturer, screws are my finished product and I make, um, cars and I need their screw. So their finished product is my raw material. I pay for that raw material to include in my finished product. And so, I want us to think about other people's finished products in the same way when they're, we are using them as raw materials for our finished products so that there's my lecture.

Erin Austin: So think about, um, do you really think that it would be reasonable to use somebody else's finished product? As raw materials for our finished products and, um, and generally, you know, I'm, I'm an intellectual profit lawyer. I am going to say what you need to do for the most part, and there will always be exceptions, but for the most part, you need to purchase the right to acquire the right.

Erin Austin: It may not cost you anything, but it probably will acquire the right to use somebody else's finished product as a raw material for yours. So securing permission is really the only way you can ensure that the intended use is not an infringement of the copyright owner's rights. Um, I mentioned fair use briefly.

Erin Austin: I never teach people how to use fair use. Fair use is a defense. So, um, You know, I will say, you know, when I was in the film business, I, uh, you know, was a motion picture lawyer for about 10 years, and we would have to make fair use judgements as we were shooting. So let's say we're shooting inside of a, of a grocery store, and so your characters are walking through the aisles, you're not going to clear every single, you know, box of cereal and, um, soda that is.

Erin Austin: Uh, shows up on screen as your characters walk through the aisles, but you will. So we would have to make fair use judgements about, you know, what was on screen in the background. What could we use? I. As a fair use and what we would either need to secure the rights to use or to blur out. Sometimes you shoot something and then it comes out later.

Erin Austin: We would do, this is a little aside. We would look at dailies every day. We would see what was shot that day. And as the production lawyer, you had to look through the dailies and make sure that anything that appeared on screen was cleared for use. So if you, you know, got the dailies, you didn't know that they were gonna do something, um, that day, and then you get the dailies like what, you know, the main characters.

Erin Austin: Starts, uh, stands right in front of the cereal aisle and clear as day, or, you know, corn Flakes and, you know, Cheerios, and they're having an argument. You know, it's one thing if it's, and you even the context sometimes mattered. You know, like, if, if something wonderful is happening, then you know, like, eh, you know, something terrible is happening.

Erin Austin: Like, eh, and uh, and so maybe you have to blur it, you know, and you can't use it. All that to say is that, once again, fair use, extremely fact specific, and it's something that needs to be looked at after you have all the facts in place and you know what's gonna happen there. It's not something that can be judged upfront.

Erin Austin: All right. So with that in mind, if you're going to use anybody else's materials, anyone else's materials in yours, then you should secure permission. So what's the process for that? First, you want to find out is it in fact protected? Now, if you're talking about a current thought leader, and I'm assuming these are.

Erin Austin: Current thought leaders books, then the likelihood is extremely high that that book is eligible for copyright protection. But you know, as a formality, we would confirm that, you know, maybe it's something from before, like, um, I don't know how long ago was, uh, you know, things like, um, Um, you know, how to win friends and influence people, like maybe that was published during a time when copyright notices were required and it didn't have one.

Erin Austin: So back then, if you didn't, literally didn't have that, you know, see in a circle and the formal copyright notice on there, you, it wouldn't be protected. So maybe it's something that slipped through the cracks there. Maybe it was published so long ago that it, that the. A period of protection has passed and is now in the public domain, or maybe it falls into a category of works that are not copyrightable, like facts or natural phenomenon.

Erin Austin: So, um, so it's possible that, um, the book or the portions of the book that you wanna reproduce, you, obviously you're not copying the whole thing, but that the portion of the book that you want to reproduce is not copyrightable. Um, but for the purposes of this conversation, let's assume that it is copyrightable and is, uh, protectable.

Erin Austin: So now you may need to identify the owner. So, um, it could be as simple as looking at the title page. So the back of the title page there will be the copyright statement where it will say who the copyright owner is. Um, that's typically found the back of the copyright page. However, that would state who the copyright owner was at the time of publication.

Erin Austin: That can change a couple of things could be that either the writer who I'm just gonna assume is the thought leader is no longer the copyright owner or never was the copyright owner. So let's say for instance, the thought leader worked for. I b m, you know, maybe it was, uh, I can remember his name, Jack Welsh gm, right?

Erin Austin: So maybe when he wrote his, he wrote, uh, a well-known book and maybe when he wrote it, it was in his role as c e O of General Electric. And General Electric actually owns the copyright in his book, not Jack Welsh. Um, that also may apply, that maybe, you know, I write a novel at, you know, my. Business is Aaron oss la P e l c.

Erin Austin: And someday, uh, I sell it. And then when I sell my business, maybe I also sell the work that is the underlying, you know, big idea underneath the business that I sell. And so I also sell the copyright in the book, um, to the acquiring company. So it could be that, you know, the book was written for somebody else as a work for hire, or it was sold in the interim.

Erin Austin: Or I, you know, I pass it on to my son when it's time for me to leave this realm. So there are a number of reasons why the copyright owner listed in the book may not, um, be the current owner as the time that you wanna use it. Another way you can find out is that you can go to the us copyright has public records, and now as you know, not everything is always registered, but if it's been registered and that's been up to date, then it will show you, you search it by title and it will show you who the copyright owner is as of time of searching based on the public records.

Erin Austin: So we identify who the owner is to the best of our ability. Um, And then we identify what rights do we need, what exactly do we wanna do with the work that we get from the thought leader? So, You'll wanna identify which material you wanna use. And then you look at that bundle of rights, that compromise, that comprise copyrights, and we talked about them before, reproduction, distribution, display performance.

Erin Austin: And so which of those bundle of rights do you need for what you wanna do with it? So let's say you wanna be able to make copies, you know, probably if you're gonna include it in your workbooks, and you're gonna distribute that to the, the, to the participants. Maybe you wanna create a derivative. So maybe you wanna use something that you found in the book to create a script for role-playing.

Erin Austin: Um, you know, especially like, let's say you're doing role-playing in your workshop, and so you're using that as a script that's creating a derivative. Um, maybe you want to distribute copies of it. So if this is a course that you're selling online, then you would need the right to distribute copies of it.

Erin Austin: Um, perform the work, display the work, transmit the work. You know, or to authorize a third party to do any of those things, such as if you're creating a workshop that you will license to other people, then you need to be able to, um, authorize third parties to also make copies, distribute, et cetera. So what rights do you need?

Erin Austin: And then you need to contact that owner and you may need to negotiate a payment. So, Hopefully we've found the correct owner and we can contact them. You know, it may be that, you know, yes, the owner of the copyright is still the thought leader, but the thought leader I. Licensed all of the rights to, um, give permissions to the publisher.

Erin Austin: So that's not at all unusual. If you go the traditional publisher route, you sign a publishing deal, the publisher gets exclusive rights to distribute the book, but it also gets what are called ancillary rights, which would include the right to control, you know, who. Uh, gets permission, you know, we, you know, and the, the ability to license portions of the book and charge a fee for it, uh, or just give permission, you know, for academic settings, that will often be a right that's granted to the publisher.

Erin Austin: I. So you may need to go to the publisher for that, which actually, frankly is simpler. Um, and, uh, sometimes there will be, uh, directions right on the copyright page about how to contact the publisher to get rights, um, cleared for use. And there are also websites that assist in this, uh, one of them, copyright.com.

Erin Austin: It is a copyright clearance marketplace where you go in there and you search for publications. Let's say there's an article in Forbes Magazine that you wanna use and you can go in there and, um, if, if. They have, if the publication or the publishing house has an arrangement with the copyright clearance, um, copyright clearance, uh, marketplace, then it'll say right there, like, you know, you can license it for us.

Erin Austin: It'll tell, it'll ask you like what the use will be like, such as business use, and they may already have preset fees. Um, and it'll makes it. Fairly simple. If, if you do have a third party, um, clearance house that can help you with that and, uh, and then whether or not there is a fee that would be, you know, you might not wanna offer one, but they may ask for one.

Erin Austin: Right? And then you want to get the permission in writing. Um, it, uh, you know, a lot of. The, the best case scenario is it is original and ink signed. By that I mean, wet signature. Someone's literally printing something out, using a pen and signing it, and you get a copy of that, um, original ink signed, um, permission.

Erin Austin: However, when we're talking about using permissions in our courses or workshops, we are absolutely, you know, asking to use it on a non-exclusive basis. Um, where it's not a transfer of ownership rights of any kind. And so in writing can be by email. Um, you know, you can get non-exclusive license to use copyrighted materials by, uh, without it being in writing.

Erin Austin: You can even get it orally. I wouldn't recommend that 'cause you wanna definitely have a written record. Um, but, uh, you can So, so having it by email. Would be sufficient. However, I would say that the more important this, um, the bigger the investment would be, um, the more formality you wanna go go through.

Erin Austin: So if you're going to be. If you're asked to pay a license fee, that's substantial. Obviously, you want to have more formality than if someone says, sure, go ahead. If you're going to be making a substantial investment in resources, let's say you're incorporating it into a book. And then you're gonna go to print with this book, and so there's a big investment.

Erin Austin: Then you absolutely have more formalities if you're going to making that kind of investment something that you're putting, you know, in a digital course. And not that you shouldn't go through the formalities, you should, but if you're something that's going to go into your course that if something happened and you had to take it out, it's not, you know, you don't have to.

Erin Austin: Re, you know, get a second mortgage on your house in order to, to do this. Then you can, um, you know, you're, you're, the, the formalities should be consistent with the level of investment. You know, you don't, whether or not you have lawyers involved and have things like that consistent with the use, um, that, that, for that, for that item.

Erin Austin: So, um, what is the written permission? It can be pretty simple. Um, people think it's gonna be a big deal. It really is not. Again, you could be by email once you know who you're asking. You do wanna make sure you're asking the right person. Um, it doesn't need to be a long, complicated document. Absolutely can be a one pager if it's.

Erin Austin: In writing, and by then, I mean on paper. Um, but the minimums are fairly simple. Um, you just wanna make sure you have the following. You wanna just say who you are and what you do. You wanna have an accurate but brief, um, uh, identification of what material exactly you're using. I wanna use the graphic on page 25.

Erin Austin: Uh, or I wanna use the entire, you know, um, Uh, chapter perhaps, or, um, And so identify specifically what you want to use, how you're going to use the content. I'm going to be using this in my d e I training. I'm gonna be using this in an evergreen course. I'm gonna be putting this in my book, how you're going to use the content, um, and where you will use it, you know, seminar, webinar, et cetera, online, in person.

Erin Austin: Um, how you're gonna use it, and then for how long you're gonna use the content. So how long you're gonna use it is gonna be very different. Um, if you're giving a, um, a speech, you know, at, at a conference versus if you're going to be doing, uh, creating an evergreen course that's gonna be available online for, you know, as long as the material is useful and relevant.

Erin Austin: Uh, and, uh, you know, whether or not you offer payment that will be your choice. Um, and if you don't, and the rights holder may request payment, and that will be an analysis for you to, uh, understand the value of having this material included, uh, uh, against what they're asking you to pay. So it may turn out that it doesn't make sense from a financial perspective.

Erin Austin: And so, and if you do ask for it by email and you do want the full, full formalities, you can still send it by email, ask them to print it out, ask them to sign it and return it to you. Um, and, and scanned copy would be fine. Um, so long as it's an, you know, not a transfer of ownership, in which case you'd want an original copying.

Erin Austin: All right, so, When you're, uh, you know, creating a course using somebody else's book, if you do it without permission, it could result in legal action. You know, um, worst case scenario of course is someone be suing you. Almost nobody starts there. Almost everyone starts with a cease and desist. And so, but that's not something that you wanna have happen.

Erin Austin: You know, you will have invested. Time and resources in creating your workshop, creating your course. Before you put in those investments, you wanna make sure that you have permission to use everything that is in there. And in addition to losing those resources that you've committed, you know, let's say you have to.

Erin Austin: Claw it back from someone that you've sold it to. What if you have to tell a client that you have, let's say you've licensed your workshop to them for them to use throughout their organization, and now you have to retract permission for that. How mortifying would that be? And so I just want you to, um, take a conservative view if you're going to use somebody else's materials.

Erin Austin: To make money for this to be an important part of your business, something that you are selling to your clients, something that you're building your reputation on. You want to make sure that you have the rights to that and that it's not going to be a source of either legal risk or reputational risk because you haven't cleared those things.

Erin Austin: So make sure you do that. And, um, just one other thing is that, you know, if you're selling the course on a third party platform, like they're, they may have their own requirements for you to make statements about, you know, what you can put on there. Um, 'cause they don't wanna get involved with, you know, take down notices and things like that.

Erin Austin: Um, and, uh, and so, um, Once again, making sure that everything that you, um, incorporate into your courses, into your workshops that you're gonna be using to generate income that they are cleared. So I hope this was helpful to you. You know, I love your questions, so please do not hesitate if you have any and if you have any questions that are specific to your circumstance.

Erin Austin: In other words, you need some legal advice, um, book an errand call. I look forward to hearing from you. Thanks guys.