Whose Work Is It Anyway

brain gears Associations Now November/December 2015 By: Karla Taylor

When negotiating the use of intellectual property contributed by volunteer consultants, it's better to be collaborative and creative than grasping and grouchy. Approached with the right attitude, these often-touchy conversations can lead to positive outcomes for all.

It's a situation that should be a win-win but too often makes one side or the other feel like a loser. Consider these (possibly familiar) scenarios:

  • A meeting planner who was delighted when a well-known consultant volunteered to speak at a convention feels stung when he declines to be videotaped or hand out his PowerPoint slides.
  • A consultant volunteers to write a magazine article for an association but later is dismayed to see chunks of her work on the association's blog and in an e-book.

Associations and consultants both have much to gain by collaborating on conference presentations, articles, research projects, and more. But when consultants volunteer—rather than doing work for hire—both sides can feel burned if they fail to clarify who owns what and what each party expects to receive. After all, association executives think they're doing consultants a favor by providing invaluable exposure: advertising money can't buy. And consultants think they're doing associations a favor by donating invaluable expertise: content that powers revenue from conference fees and content sales.

The problems are even touchier now that expertise can be shared not just in print or in the convention hall but also via audio, video, Facebook, Twitter, and other new media.

Handling Common Problems

Your association's legal counsel is your best resource regarding specific issues. But thinking about how you would handle the situations described above can help you be collaborative and creative when consultants volunteer to share their intellectual property.

The camera-shy, handout-hoarding speaker. First of all, "be respectful of the fact that consultants are doing something for you for free," advises attorney Eileen Morgan Johnson of Whiteford, Taylor & Preston, LLP, who has both counseled associations and volunteered for them.

Then head off unpleasant surprises by preparing to negotiate rights as soon as your consultant agrees to the assignment. Keep an open mind as you work toward the goal: a written agreement that spells out what work (such as handouts or video rights) will remain the consultant's property, what rights your association retains, and what you'll share. Take that same proactive approach if the consultant is using existing materials, called intellectual property inventory. As Johnson says, it all comes down to this: "Have a good contract."

And, yes, it's true that consultants benefit from getting their name in front of your audience. But to demand that they sign over all rights "is dishonorable," she says.

The case of the reappearing content. When you're wondering what you can legally do with a volunteer author's work, check the signed agreement. If it grants your association all rights to the article in any form, you can use it as you wish without seeking further permission (though it would be courteous to do so). If the agreement gives you permission only to publish the article, then that one use is all you get.

And if there's no signed agreement? In that case, any adaptations belong to the consultant as the creator of the work, and you must negotiate permission for each additional use. (You should also take a hard look at your failure to get publishing agreements.)

The good news is that most consultants will agree to let you create derivative works if you credit them. To make it easier to convert volunteer consultants' work for other uses, one happy medium may be to ask them to sign a license instead of signing over all rights. Depending on how it's written, a license can allow consultants to retain rights to the material and re-use it themselves while also allowing your association to use it.

Expert Advice

Association executives and consultants agree on some ways to make intellectual property more of a talking point and less of a sticking point.

1. Educate yourself about copyright. You don't have to go to law school to grasp the basics. Start by reviewing the resources in the "Read More" sidebar below.

2. Get beyond the "lock-it-down" mindset. Copyright laws aside, smart association executives realize that "you don't always have to think of ownership as the endgame," says Michael Butera, executive director and CEO of the National Association for Music Education. Is there an approach that would benefit all parties? For your  association, maybe it's as simple as routinely asking authors to agree to a modified license rather than signing away all rights. Or you might set up a fee-sharing or royalty arrangement.

3. Think in terms of building relationships. As part of finding middle ground and mutual interests, "dialogue is a good thing," says Butera. It's appropriate for you to initiate open conversations about which rights you want to own. It's also appropriate for consultants to openly say, "Here's what I'm comfortable with you using, with appropriate recognition."

4. Find out what consultants value. For example, good exposure and clear credit may be more important than copyright. "I want to get good information out there—I'm not as concerned about ownership as about getting time at the microphone or being credited as a coauthor," says Nat Bartholomew, a CPA who's principal in charge of CliftonLarsonAllen's associations and membership organizations practice. Because accounting and tax rules change, he also wants assurance that associations will be "vigilant curators," deleting outdated resources he's provided that are no longer accurate or relevant.

5. Base negotiations on professional respect. "I like to think that associations value what we do and recognize the brain power and time that go into the intellectual property we contribute," says Barbara Armentrout, CAE, relationship director at Marketing General Incorporated. The fact is, most consultants are glad to contribute to the good of the profession or industry. Realize that "just because I'm a willing volunteer doesn't mean I'm trying to sell something," Armentrout says.

Associations and consultants have much in common. They both generate business from intellectual property they create. The internet has made handling that property more complicated than ever. But one thing hasn't changed: "We on both sides have an obligation to learn each other's roles and responsibilities," says Butera. "If we do, we're less likely to have these pinch points between us."

Karla Taylor is a communications consultant in Bethesda, Maryland. Email: [email protected]

Read More

Sidebar: Respect the Bid

The request-for-proposals process has become a major intellectual-property sore spot between consultants and their prospective association clients. In the scenario consultants dread, several firms respond to a lengthy RPF that asks for detailed outlines of how they would handle an ambitious project. In the end, the association decides not to hire a consultant, but the staff uses ideas from the RFPs to tackle the project in-house.

Abuse of proposal-related intellectual property occurs often enough that "many consultants don't do RFP responses anymore," says attorney Eileen Morgan Johnson. "It's time-consuming. They don't want their work to be stolen. So they respond with a letter saying, 'We can do this—let us know if you want to have a conversation.' "

When consultants do respond to RFPs, most label their bids "confidential and proprietary." Respect that. Appropriating wording and even diagrams is infringement. And although concepts can't be copyrighted, adopting consultants' ideas without permission is clearly dishonest.

Of course, it's impossible to un-see proposals and difficult to pass up good ideas. How can you both remove temptation and keep from alienating potential partners? Johnson recommends that you restrict your RFP to basic information about qualifications and prices, and avoid asking for solutions to your problems or samples of similar work. Then do thorough reference checking.

Better yet, don't send RFPs at all. "Have a discussion with consultants on the telephone or in person, and check references," Johnson says.

Karla Taylor

Karla Taylor is a communications consultant in Bethesda, Maryland.