The Web's broader audience has prompted some presenters to look differently at their rights.
When an organization retains a speaker, it enters into an agreement regarding the presentation. Such contracts establish the organization's rights to the presentation, limit the organization's liability for the material presented, and minimize the risk that the speaker will cancel. But in this electronic age, with webcasts, virtual courses, and other Web-based education programs, is there a need for such agreements?
You bet! In fact, the need is greater than ever. When groups conduct educational programs or republish course materials on the Web, the potential audience is substantially larger than it is with an on-site event. The more people you reach, the more valuable the presentation, and the more likely that a third party will read and perhaps rely on the content.
As a result, organizations should have written agreements with anyone providing content for, or participating in, their virtual presentations. As a rule, the liability that arises does not involve novel legal theories, but new applications of existing law.
Enter into an agreement with everyone who plans to participate in your virtual program, and have the agreement signed before the broadcast or publication on the Internet. In addition to addressing compensation, the agreement should authorize the organization to use the presentation for certain purposes.
Make the agreement as broad as possible. Even if you are planning a single webcast, consider obtaining rights to rebroadcast the program and/or sell printed, audio, or digital materials generated from it. Not only are presenters more likely to grant all the necessary rights up front, but it can become administratively burdensome for the organization — and annoying for the presenter — to enter into multiple agreements for the same presentation.
Obtain representations regarding the program's content. First, presenters should state that their programs do not raise liability concerns; that is, that the material is accurate, has not been plagiarized, and does not disparage any person, product, or service. Second, depending on the nature of your organization, you may want presenters to agree that programs will be educational rather than promotional. The speaker should support the representations with an agreement to indemnify the organization from any damages resulting from a breach of those representations.
With live broadcasts, the last thing you want is to plan and promote an interactive, Web-based program and end up with no one to lead it! While agreements for “personal services” can't force a presenter to perform, the sponsoring organization can deter cancellation by including language that requires the presenter to pay a predetermined sum of money or, at a minimum, provide a substitute if he or she is unable to attend.
The Web's broader audience has prompted some presenters to look differently at their rights. The professional who has previously agreed to speak at your meeting for a fee may hesitate to grant Internet rights. The concern is that if large numbers of people have access to the presentation materials (and the ability to download them), the presentation's value is diminished. Sophisticated presenters are now looking for representations from the group, usually in the form of a copyright notice, that indicate the organization will do its part to protect their speakers' rights.
What's most important is to determine what terms are necessary to protect your interests — now and in the future — and which of the presenter's conditions you are willing to accept. Make sure the agreement accurately reflects your understanding of the terms. Then sit back, relax, and watch the show!
Jed R. Mandel is a partner in the Chicago-based law firm of Neal, Gerber & Eisenberg, where he heads the trade and professional association practice.