Eps 87 Licensing Series Part 3: How to Legally Use Someone Else's Content Transcript

Erin Austin: Hello ladies. Welcome to this week's episode of the hourly to exit podcast. This is the third of. Episode of our 3 part series about licensing in particular about some edge cases, what would otherwise be non typical uses of licensing to get our expertise into more people's hands.

Erin Austin: So, part 1. Which was episode 85, we covered licensing when you provide bespoke custom services, part two, episode 86, we talked about borrowing other people's audiences when we don't have our own audience, our own audience isn't large enough to really have a standard licensing program. This week, we're going to tackle what to do when you want to use other people's content in your licensing program.

Erin Austin: And just to be clear, a caveat before we get started, when I talk about using other people's content, I do not mean Licensing entire program, which is traditional thing. I mean, you have your own program, but there are some elements of it. Maybe there's, a study that you use. That's important.

Erin Austin: Part of it. Maybe there is a graphic that you use. That's an important part of it. Maybe there is a video outtake, like a very discreet. Elements that you've used, from 3rd parties, and maybe you don't have a license to use it with your 1 on 1 clients, but you recognize the need to get permission now that you're going to put it into your licensing program.

Erin Austin: And so this. Addresses those discreet elements, not an entire licensing program. And so we're going to talk about getting permission to use other people's content within our own licensing program. And then the 1 other thing I want to mention is music licensing is a whole different animal. We're going to be talking about licensing content, as experts in the B2B space.

Erin Austin: This is not. Covering music licensing, which is a pretty big deal. And you should not try to license music without having someone who is very experienced with music licensing involved. All right. Enough about that. So we're going to talk about. copyright licenses, copyright, just to quickly recap, it provides the owner of the copyright exclusive rights to reproduce, adapt, publicly distribute, publicly perform, publicly display the work and to authorize others to engage in these activities.

Erin Austin: So if you want to legally do any of those things, reproduce, adapt, display, let other people use. Somebody else's content. You need to have a license to do that. that is the only way for you to be able to grant other people the right to use their content. So it's even more important, in this licensing scenario, but again, let's go back to, let's say you've been using a report or a graphic or something with your one on one services or your corporate clients and you haven't had a license for it.

Erin Austin: We get it. It happens, but when you're going to create a licensing program, you must make sure that you have a really clean, clearances are called clearances for everything that appears in your licensing program. You do not want. Want to spend the money, the time, the reputation, the political capital, reputational capital, you create a licensing program and then have somebody come and say, hey, you don't have permission to use that, that would be tremendously, embarrassing at best and, potential lots of potential liability at worst.

Erin Austin: So we will talk about the consequences later, but I just wanted to set that up for you. So first things first, regardless of where you found the content, I don't care if it was offered for free, you got on the internet, even if you're going to, your licensees, like you're doing a train the trainer.

Erin Austin: So your licensees are corporations that will only be using it in house. Still doesn't matter if it was never registered in the copyright office, or if you can't find the owner at all, you got it off the internet and for the life of you. You cannot find the owner. None of those things matter. If you want to have the legal right to use it and put it in your licensing program, you need to get permission.

Erin Austin: you need to get permission. So, , general rule, I'm going to make this a blanket statement. I'm good. Yeah, I'm good with making this a blanket statement. Before you use any content, whether text, images, music, video that you did not create, or you did not commission the creation of, you need to research its copyright status.

Erin Austin: And unless you find that it is in the public domain, then you need to get permission from whoever owns or controls those rights now before you include it in your licensing program. briefly regarding public domain that refers to content, not, it doesn't mean publicly available content. Public domain means content that is not protected

Erin Austin: By any intellectual property laws, whether copyright trademark patent, et cetera. So if it is in the public domain, then it is freely available for anyone to use, to modify, to distribute it without needing permission or paying anything. And so if it typically there's two ways things end up in the public domain, either the copyright protection that will copyrighted work.

Erin Austin: Addressing trademark and patents and things, but for copyrighted work, the con type of content we're typically talking about here, either the copyright protection has expired. Or it was never eligible for copyright protection in the first place. I'm not going to go into what public domain is in this episode.

Erin Austin: I did an entire episode about what is public domain. And you can find that in my, episode 73 of this podcast. It was part of the copyright ability series, part three. So if you have any questions about how to figure out if the content you want to use is in the public domain, Start there. All right. So now we're going to assume you have some content.

Erin Austin: You've done your analysis. It's not in the public domain. Now, uh, first things first, we need to figure out who the owner is. So if you have the work in front of you, you have a graphic, you have a research report, you have a video. Now look to see if there's a copyright notice on there. When you have the copyright notice, you can then first step go to the U.

Erin Austin: S. copyright office. that's copyright dot gov. I'm pretty sure I can't believe I don't have that right in front of me. I'm pretty sure it's copyright dot gov. And you can do they have a searchable, platform where you can put in the author. Or the title. So new tale of two cities or Charles Dickens.

Erin Austin: And you put that in there and it can show everything registered to that author or everything registered under that title. And if it's registered, great. You can look right there to see who the owner is. however, if you look at the. Work and you don't find a copyright notice that does not mean it's in the public domain.

Erin Austin: There is currently no requirement to have that copyright notice on there for copyright protection to apply. Same goes with searching the. copyright offices records. maybe you see it. It has the circle C on there, and you know the name of it, but they haven't registered it. You do not have to register something for the copyright protection to apply.

Erin Austin: So this is just a first step. It is a multi stage. I'm not going to say that it's as simple as, doing a Google search or doing a copyright search. It's not because it's not. Even let's say you do find in the copyright office, but since the owner registered it, they license the right to somebody else and they haven't registered that license agreement or they sold the rights to somebody else and they haven't registered that sale agreement.

Erin Austin: So there is more than one step to finding who the owner is. And so, oh, that was my 2nd point. So the transfer can be temporary or permanent. So, let's say a licensing, like, someone may have licensed the exclusive rights to use, that, research report. To let's say a journal, and so for 1 year, the journal has exclusive rights to any publication of that research report.

Erin Austin: And so they don't have the rights to give to you today, but maybe they would have the rights to give to you next year. So there's a number of nuances there. And then let's say, let's go to that research report, but maybe you found it inside of a journal. And so you see, okay, this journal is, you know, Harvard business review.

Erin Austin: And so you go to Harvard, but maybe Harvard only has a license to publish it that 1 time. So now you got to go find who actually owns that research report. And so there are a few steps to getting there. But, It's not impossible. It's 100 percent doable. This digital age, you absolutely with some diligence, you can typically get to, who the owner is of those rights.

Erin Austin: All right. So we find who the owner is. Now we need to consider what rights do we need? we're licensing, some, just some for a particular use. And so what you need, you don't need, the rights to perform it. If it is a photograph, but maybe you do need the rights to display it.

Erin Austin: Maybe you don't need the rights to make derivatives because you're just going to use it as is. Maybe you don't need rights to reproduce it because you're only going to use it during a single presentation. So think about. What rights you need, how will you use it? Where will you use it? For how long will you use it?

Erin Austin: What rights you need are very different. If you're going to incorporate that content into an online course, which hopefully will be an evergreen course and be online and available forever versus the rights that you need to do a live course. Ted talk, and then there's everything in between.

Erin Austin: I'd say that those are two pretty extreme examples and everything in between. Right. And so if you have an online course, that's going to be available to anyone with an internet connection, you need the ability to distribute that content worldwide. On the other hand, if you're going to do just a live Ted talk, maybe you only need the right to display it, one time in your hometown.

Erin Austin: Um, How long you need it to last again in perpetuity, or just that one day, what other considerations are you may consider, let's say that online course. Okay. You have the perpetual worldwide rights to include that content in your online course, but what if someday you want to roll up that course and do a book?

Erin Austin: Have you gotten the rights to do that? Or what you need to go back to them, that Ted talk, maybe you're, it's going to be a PowerPoint presentation, but like most places, you know, most presentations that I've been to are given people want a copy of that PowerPoint. So do you have rights to give people a copy of your PowerPoint presentation?

Erin Austin: So you want to make sure you have that. And then what if it will be something that you include in the client deliverable, as you know, from episode, the first episode, I'm scrolling back in my notes here, episode 83, 85, when we talk about bespoke services, those are licenses that we're granting to our clients.

Erin Austin: So our clients are sub licensees, when we are using as part of our deliverables, something that we got. From somebody else's content. So we want to make sure that we have the rights to include it, and sub license it to our end client. If that's the case, it doesn't have to be a great big licensing program for sub licensing rights to be required.

Erin Austin: And I do want you to think proactively, If you get just that one time use for your Ted talk in New York City, but then, it's posted online and it goes viral and it's, make sure that you have the rights to anticipate it going viral. That said, we want to be realistic about the rights that we ask for, I used to work in the film business and.

Erin Austin: Anytime he got rights to anything, literally it was always all rights now known or hereafter devised worldwide in perpetuity like that. I dreamed that in my sleep. You never got rights for anything less than that. Cause you never wanted there to be some other way to exploit something.

Erin Austin: And somehow you don't have the rights to it. And just a little aside that goes back to the home video days. When, studios would just get the rights to make your theatrical motion pictures, who cares about home video? Nobody cares about those. And so they wouldn't get those rights. And then lo and behold, you know, this whole industry comes up of home videos and their other, uh, other companies snapped up those home video rights.

Erin Austin: And so now. If you're getting the rights to something, I don't care, you know, and, and, you know, to point in fact, I mean, streaming and internet and all that stuff, you know, looking at things on your phone, these are all rights that got scooped up, you know, because of the way technology has progressed, you know, which they got these rights, you know, 40 years ago, who knew how we would be consuming content today.

Erin Austin: Anyway, that's a little aside, but when you want to be realistic about what right you get, because as this. Well, this is my saying I don't think anybody else says this, but it is that you pay for what you get, you know, you get what you pay for, and you pay for what you get so if you want to get. All rights worldwide and perpetuity, then you're going to pay for all rights worldwide and perpetuity.

Erin Austin: So be aspirational for kind of real, but for realistic uses of that content, because that will show up when you get to the next step, which is negotiation or negotiating your permission. So now you've. Hopefully have found the owner and it is time to negotiate the permission and whether any permission is required.

Erin Austin: You will want to provide detailed information about who you are and how you intend to use the work, uh, including specifics about exactly which material you are going to use the intended audience, whether it will be distributed for free, such as your TED talk, or will be sold for profit, like your online course.

Erin Austin: So probably your most heavily negotiated point will be whether. And how much you have to pay for permission to use the content. Now, if you're here consuming my content, I'm going to assume that you are in the for profit business and that you will be using this content for, uh, to make Money to increase the profitability of your business.

Erin Austin: We are here to create leverage in our businesses so that it is more profitable. So I don't want, you know, I feel pretty strongly about people not expecting use inventory because when we're experts, our inventory is is IP that we're not expecting to get. Our inventory for free. And so, um, it is, uh, expect that you may need to pay something.

Erin Austin: Now, it doesn't mean it's going to be a big chunk of change, like when there's motion picture, uh, when there's a movie studios by the film rights to a book, obviously, that's very big numbers. Uh, this could be a minimal amount of money. It could be, you know, a hundred bucks or something like that, or it could be a thank you.

Erin Austin: Recently, somebody asked to use some of my content and I said, sure. In exchange for a testimonial. So it doesn't have to be a big chunk of change, but there should be some consideration, um, that goes to the owner of that content. Of course, you know, the more impactful that use will be, you know, and expect to pay more for it.

Erin Austin: An online course that's going to be, you know, worth millions of dollars, then hopefully millions of dollars than you would for, uh, you know, your one time Ted talk. Right. So, so it should be, uh, uh, in proportion to the impact of that use. And of course, the more of the, the content that you're using, the higher the fee would go as well.

Erin Austin: So I encourage you to start this process well in advance of when you'll need it. Because as I mentioned, You may not, you know, the 1st person you contact may not be the right person. You might go to the journal 1st, they send you there or the publisher 1st, and they send you over there, or maybe someone who sold it.

Erin Austin: Someone died and you need to find a air. So you need to. Make sure that you don't get in a bind because you need something and oh, I'm planning to make my course go live next week and I need to have this thing. So make sure you plan ahead and we'll talk about plan B's as well in a minute. Finally, get permission in writing.

Erin Austin: Yes, you can have a legally enforceable permission to use the content through a website. An oral agreement, it does not have to be in writing, but don't do it. When you get the permission in writing, you can be certain. Sorry, I'm removing this one second.

Erin Austin: Starting over. Finally, get permission in writing. Yes, you can legally get legally enforceable permission to use the content. through an oral agreement. But don't do it. When you get permission in writing, you can be certain that all parties share the same understanding of the terms. It's the only way to get there is to make sure there's no misunderstanding as if it is in writing.

Erin Austin: If for some reason you ever need to enforce, uh, your that permission, let's say someone says, Hey, I never agree that you could use that. You want to make sure you have written evidence. And then finally, you know, well, there's many reasons, but another reason is, let's say, you know, your TED talk that you had, um, that, you know, goes viral and blows up and suddenly you're, people are asking you to give speeches all over the place.

Erin Austin: You know, the, if you don't have something in writing that says, Hey, you can use it here and there, but you just had an oral agreement that said you can use it, you know, online and all these places, believe me, that copyright owner is going to come back to you with his handout when he sees it. There's a big deal.

Erin Austin: Big, big, uh, money at play. So get that in writing. You don't want to have to go back and renegotiate when something blows up. That's the worst case scenario for you. And do not let the fear of contracts stop you from seeking permission for this type of use. And again, we're talking about, you know, using some discreet.

Erin Austin: Element a graphic or report a video clip. It's very rare that you need to have a permission. That is more than a few pages long and, uh, very simple. I'm going to go through a few of the issues that you want to address, but that is it. Okay, sorry, starting over. And please don't let the fear of contracts keep you from seeking permission.

Erin Austin: There is rarely any need for your permission to exceed more than one or two pages. Remember, again, the use we're talking about today is not Licensing the entire program, but licensing some element that somebody else owns that you want to put into your licensing program. So what should that permission letter include?

Erin Austin: To be really effective, you want it to have detailed information about your request. Again, at the end of the day, it You know, assume that the copyright owner is a human. It might not be, it might be a corporation, but that they'll want to know more about you and how you're going to use it. So first introduce yourself, tell who you are, maybe a brief summary of your credentials.

Erin Austin: Yeah. For example, I'm an executive coach who works with fortune 500 companies to turn their managers into leaders. So that tells them, okay, I see how that's going to be used. What, you know, be as. Specific as possible. When you describe the work that you want to use, you don't want them to guess what you want to use what needs to be very clear.

Erin Austin: And again, because this permission letter if all goes well will also be the agreement. So you want to have as many specifics as possible in there. Now, do you want to use the entire work which you might if it's just a graphic or research report or maybe you only need to. pull out a few pages. I want to reproduce pages 10 through 12 of this report.

Erin Austin: And, and, um, you can even include a copy of it if that makes sense to make sure it's really clear what you want to use, you know, or the timestamps of a video clip. How will you use it? Will it be for commercial use, which is what most of us are using it for. We're going to be putting it in a PDF. A group coaching program on an online course or a train the trainer licensing program, uh, Or you know non profit or educational if that applies Educational does not apply to corporate training just to be clear.

Erin Austin: That means academia And of course, whether or not you're going to need to sub license it to third parties. If you're going to be including their materials in the train, the trainer licensing, you need to be able to sub license their content to your licenses. If you're going to put it in your, in your online course, you're going to be need to be able to license it to your licenses.

Erin Austin: I know we did not talk about online courses as being licenses, but they are licenses as well. If you've ever, the next time you buy an online course, read the terms and conditions. I know none of us do, but you will see that there is licensing language in there. Or if you buy a template online, you'll see that there's licensing language in there as well.

Erin Austin: What's really important is don't try to be slick or hide the intensive, the intensity of your plan The permission that you obtain is limited by The terms that are in your permission letter. So you can't, uh, well, you don't want to try to interpret it expansively. Anything that you need the rights to do should be in your permission letter in black and white.

Erin Austin: You know, if you want to, you know, secure permission to include a video clip in your one on one executive coaching, uh, but the permission does not include, uh, the right to share it in group coaching, then you don't have the right to share it that way. If it doesn't include a right to post it on your website, you don't have a right to share it that way.

Erin Austin: If it doesn't include the right to sell copies at a conference, you don't have a right to share it that way. So, if you want. Any rights that you want, make sure that they're in there and, you know, don't leave them out because you're trying to make it cheaper. That's not going to work. Then you're going to state for how long you plan to use it again.

Erin Austin: Is it a single presentation or is it something that will be evergreen and that you'll need a perpetual rights for. Where will you use it? You know, in our digital world, there's almost no reason to limit it to a location. You're pretty much going to want to have in there that, you know, it will be posted on the Internet at some point, if not now in the future, and therefore you're going to need provide access.

Erin Austin: Um, you know, I mean, there obviously there could be reasons why it would only be location dependent. Maybe you only do one on one services and that's all you do and you only do it. You know, it's something that is regional like realtors, or doctors or lawyers who are only have licenses. In the other sense of the word of licenses, they only have.

Erin Austin: Uh, they're only able to practice in a specific location, then maybe you only need that specific location. But for most of us, um, we will want to be able to post it on the internet. And then why are you reaching out to them? You know, sometimes we know a hundred percent certainty, like we know with a hundred percent certainty, if we want to use Mickey mouse, we need to go to Walt Disney or Disney.

Erin Austin: But sometimes we're not completely sure we've done our investigation and we think we got the right person, but we're not sure. But it's really helpful to say, Hey, I'm writing to you because I believe your company acquired, um, the company that originally published the book, or I'm writing to you because you're the grandson of the original writer.

Erin Austin: And so I believe you may have inherited the rights to, you know, his works. And that gives them. A hint about, you know, where's this coming from? Why me? Uh, cause this, that content may not be at top of mind for them. And what I really want you to remember is that there is no defense for copyright infringement.

Erin Austin: I'm ignoring for the moment, fair use defense, because you know how strongly I feel about fair use defense and that it typically doesn't end well for anyone. Um, so we want to. Stay clean with our uses of content. We do not own ignorance is not a defense accidentally using something you don't own is not a defense.

Erin Austin: Good concept intentions. It was great publicity. Look how much publicity she got from this. That's not an excuse either. Um, you know, when you infringe copyrights in the U. S., there are civil, and that's like money damages, and criminal consequences to infringements. And, uh, I did a entire episode about that as well, um, in that same Copyrightability series, where I go in depth about what the possible consequences are, um, for copyright infringement.

Erin Austin: So that Is to say to leave you with this get permission for any content that you use in your licensing program that you do not own and that you have definitively confirmed that it is in the public domain, you know, if it's. Tale of two cities, for instance, or Shakespeare. Um, but on the, oh, that reminds me of one issue with that public domain.

Erin Austin: Don't forget that someone can create a derivative of something in the public domain. And that derivative is not, um, is still protected, you know, um, uh, there's some like, I was looking at this, the wizard of Oz, which the original, the original wizard of Oz in the public domain, but a lot of the, uh, sequels are not in the public domain.

Erin Austin: So there's. Stuff like that. Um, so you just want to make sure that you get permission for anything that you're using in your licensing program. You do not want to want to, you know, damage your reputation or get into any of these civil or criminal, um, consequences for not getting permission. So with that, I want to let you know that I have created a guide to getting permission to use other people's content.

Erin Austin: And it was created concurrently. I literally make create, uh, I'm literally starting over. So get permission with that. I want to let you know that I have created a guide to getting permission to use other people's content. And it was created concurrently with the recording of this podcast. So if it is not.

Erin Austin: Uh, available when this podcast episode goes live, it will be very shortly. And so there will be a way to, um, sign up to get it when it does go become available, but go to protect your expertise. com, protect your expertise. com. And you can find it there. And there will be a growing collection of other resources to help you on your journey from hourly to exit there.

Erin Austin: Thanks guys.