Agents and product providers know it’s smart business to hire a trainer. It’s a proven way to maximize F&I production for your dealers. They can keep you ahead of the curve on new regulations and best practices while constantly refining processes. And as employees, they understand your corporate culture and the image you wish to project.
But what happens if the trainer uses copyrighted ideas, concepts, and curricula they didn’t develop and for which they didn’t gain permission? You may not be able to use the books, forms, and scripts for which you paid. And you might become a key witness in a battle over intellectual property rights.
It’s easy to shrug off copyright infringement concerns. First, you hire qualified trainers and are confident they are trustworthy. Also, information is commonly used and reused in news media, social networking sites, and elsewhere, with seemingly little attention paid to sourcing. So why worry?
Think of wanton copyright infringement as a form of Russian roulette. True, many authors and designers don’t take legal action against violators due to time constraints and legal fees. But when they do, those who improperly use protected materials can face serious consequences.
Intellectual Property Affects Every Business
In the auto industry, we tend to think of copyright infringement solely as a concern for vehicle manufacturers. That’s not true. Any copyright infringement committed in the pursuit of revenue can put the accused party at risk.
The median infringement amount for most offenses prosecuted in 2015 (the latest available data) was $107,808, according to the United States Sentencing Commission. About 88% of copyright and trademark infringement cases involved damages of $1 million or less.
“This sounds self-serving, but it’s true: Pay me a little now or a lot later,” says attorney Daniel Barsky, a partner in the Miami office of Shutts & Bowen LLP. “People come to me with an issue or problem because they didn’t resolve things on the front end.”
It’s natural to think an agency or product provider would be less complicit in intellectual property cases. After all, you hired an expert who supplied you with materials. And in fairness, many of those charged with intellectual property infringements, including those that involve copyrights, didn’t realize they did anything wrong.
When you hire trainers and other contractors, it’s important to protect yourself.
Who Owns The Materials?
There are a number of scenarios that can results in charges of copyright infringement. So who actually owns the materials?
“My answer to that is it depends,” says Barsky. “Legally, technically, the entity that creates the work, the author of the work, is the owner of it.”
Of course, there are exceptions and exemptions. Writers in a company’s employ — whether salaried or on contract —typically sign agreements ceding intellectual property rights to the employer. Whoever owns those rights also has the option to license or permit others to use the work.
Trainers are among those who may buy licenses to distribute and use such materials. More often, they develop their own, sometimes in partnership with others — and often based on the work of others.
The agreements among authors, companies, and associates are paramount in determining ownership, Barsky says. When multiple parties collaborate to develop materials, absent a formal contract, it is not likely to be clear cut.
"In the auto industry, we tend to think of copyright infringement solely as a concern for vehicle manufacturers. That’s not true. Any copyright infringement committed in the pursuit of revenue can put the accused party at risk."
“It depends on their agreement. And it goes back to my statement: Pay a little now or a lot later. Planning and preparation make a big difference. Plan and prepare properly, and you will properly divvy up various rights.”
There are, of course, clear cases of theft, including unintended theft. It may be wise to thoroughly review a newly hired trainer’s materials, looking for items that have obviously been recreated or duplicated.
“Pure counterfeiting generally involves clothing and other consumer goods,” says Barsky. “But when it comes to things like materials, presentations, there’s usually some kind of a connection between the person who allegedly created it and the person who allegedly did the taking. That’s one of the things that gets looked at in infringement cases.”
A motive for a civil disagreement over copyrighted materials is often the linchpin in such cases. Examples include fee disputes and contentious partnership dissolvements. Also common are scenarios in which an author pitches their work to a company, gets rejected, then sees that same company produce similar work sometime later.
“If you can show this is somebody you tried to sell something to, that can have a major impact on the case’s outcome. Was there a nexus, an opportunity to steal the work? And there is almost always a connection in those types of cases.”
Minimize Your Exposure
Even if trainers or other consultants have rights to share copyrighted materials, you still need to use caution when utilizing and distributing them.
“In such cases, you usually have just one right — the copyright to the materials,” says Barsky. “But it’s not a blanket waiver of rights. Someone might put together training materials that could have multiple copyrights attached.”
Complicating matters further, no two situations underlying a copyrighted work are the same.
“You may have multiple copyrights, and each might have a different contractual provision,” says Barsky. “There are different ways it can be done. Obviously individual [creators] want to own copyrights to their materials. They want to be able to control their use. You don’t want anyone to be able to copy them.”
And although there may be some overlap in creation, that is rare, he added.
“Two people can come up with the same thing on their own. Two guys did create their own ‘Dennis the Menace,’” Barsky says, referencing the American and British comic strips that both debuted in March 1951 — before either creator was aware of the other. “It can happen.”
When you develop materials, you can use common phrases such as “buy now, pay later.” Those terms are so frequently used, they are not subject to copyright.
But if you use the term in a specific way — as the title of a training manual, for example — that might be subject to copyright.
“If you teach algebra, algebra’s algebra,” says Barsky. “But the way the textbook is laid out is unique. Somebody spent a bunch of money creating that content.”
Conversely, if that somebody is you or your trainer, it’s important to remember that others are legally obligated to respect your work.
“Intellectual property law is designed to encourage creativity,” Barsky says. “It encourages people to invest so they’re willing to create something new and improved.”
Nancy Dunham is a Washington, D.C.-based freelance journalist. Contact her at firstname.lastname@example.org. No part of this article is intended as legal advice. Consult your own attorney.