Presenting on Zoom These Days? How to Avoid Legal Problems

(May 7, 2020) Ready to spice up your online presentation with some music, a film clip, a cartoon, or a picture? Maybe you are a fitness coach conducting exercise classes online rather than at a gym and want some lively music to accompany your instruction?

Before using that music, video, or other creative work, you need to know whether you have the legal right to do so. Performing, displaying, or streaming music, audio-visual, or other copyrighted works might violate the U.S. Copyright Act, exposing you to a potential infringement claim by the owner.

In addition, most of the popular platforms—such as Zoom, Google Hangouts, and WebEx—include in their terms of service an obligation that you use the service and put up content only in a way that does not violate or infringe on any rights of a third party, including copyright and other intellectual property rights. Violation could result in your being banned from the service.

Even if you incorporated music as part of your training when the sessions were in person, you do not necessarily have the right to use music on, for example, Zoom. The venue where you conducted in-person classes might have a license with ASCAP or BMI allowing you to use in that venue music by the artists ASCAP or BMI represents. However, the venue’s license might not cover your online sessions, leaving you open to an action by ASCAP, BMI, or the work’s owner.

For those Zoom or WebEx presentations, you must make sure you have permission to use any copyrighted materials or that your use is a “fair use,” which is a defense to the use of copyrighted materials. Four factors are used to determine fair use. They are:

• The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work, such as whether the work is fiction or non-fiction, published or unpublished
• The amount of the work used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for or value of the copyrighted work

Whether or not your use is a fair use is a fact-specific inquiry, for which you should consult legal counsel.

But you notice that your children as part of their stay-at-home remote learning have access to copyrighted materials, so why shouldn’t you have the same access for your business presentation? The answer is that the TEACH Act enables educators to use copyrighted materials under certain circumstances. Those requirements include that the instructor must be with an accredited, non-profit educational institution; the use must be part of mediated instructional activities; the use must be limited to a specific number of students enrolled in the class; and the use must be for either a live or asynchronous class session.

Creators of copyrighted works legitimately want to protect their creations, and the law gives them that right. Improperly using a copyrighted work exposes you to significant risks and penalties. You should take care not to violate others’ rights as you transition more services to online platforms.