Dr. Lillian Glass vs Marsha Petrie Sue – Does being found liable of “Copyright Infringement” equal an NSA Ethics Violation? Part 1 of 2

Have you ever had one of those issues that seem to stare you right in the face – an issue that forces you to look in the mirror and ask yourself – “What am I going to do with this one?”  This issue is one of those defining questions that forced me to think carefully and evaluate “ethically” what I should do.  Do I ignore a major ethics question and issue within my profession, leave it alone, sweep it under the rug (so to speak), or do I discuss what, to many, is a subject that should see the light of day for the benefit of the profession?   I suspect that many will doubt the choice that I am making, but I have to say that “transparency” and “truth” for me prevails, as I ask the tough questions related to a major legal and ethics issue.

In the middle of December, 2010 – major news outlets from USA today to Businessweek to CNBC were reporting on the unanimous jury verdict in the trial of Dr. Lillian Glass in her copyright infringement trial against Marsha Petrie Sue – an NSA member and CSP (Certified Speaking Professional).  The decision was handed down in a Federal Court – 2:09- cv-08570-RGKL-SH, U.S. District Court, Central District of California (Los Angeles).

According to a news release that followed: “Dr. Glass had alleged that Petrie Sue’s 2007 book “Toxic People” had wrongfully copied from two lists in Dr. Glass’ 1992 book “He Says, She Says.” The jury of eight agreed and Bloomberg reported that, “According to a December 9 court filing, the jury awarded her $31,000 for the unauthorized use of content from her work.”

In communication with Dr. Glass she said she discovered Petrie Sue’s word for word copying of her materials after doing an Amazon search for her own book called “Toxic People.”  Surprised to see another book with the same main “Toxic People” title, Dr. Glass ordered Petrie Sue’s 2007 book and was even more surprised to find similarities in stories and examples.

So what happens – ethically that is – when someone is found guilty of what would appear to be a violation of one of the eight specifically listed Code of Ethics Standards established by the National Speakers Association?  Note, I said, “appears” because as of this writing there is no active ethics complaint or investigation underway with the National Speakers Association.

The NSA Ethics Standards are listed below:

Article 1 – Representation

The NSA member has an obligation to oneself and to NSA to represent oneself truthfully, professionally and in a non-misleading manner. The NSA member shall be honest and accurate in presenting qualifications and experience in the member’s communication with others.

Article 2 – Professionalism

The NSA member shall act, operate his/her business, and speak in a most professional and ethical manner so as neither to offend nor bring discredit to oneself, the speaking profession or one’s fellow NSA members.

Article 3 – Research

The NSA member shall exert efforts to understand each client’s organization, approaches, goals and culture in advance of a presentation, in order to professionally apply one’s expertise to meet each client’s needs.

Article 4 – Intellectual Property

The NSA member shall avoid using – either orally or in writing – materials, titles or thematic creations originated by others unless approved in writing by the originator.

Article 5 – Respect & Collegiality

The NSA member shall maintain a collegial relationship with fellow members that is based on respect, professional courtesy, dignity and the highest ethical standards.

Article 6 – Confidentiality

The NSA member shall maintain and respect the confidentiality of business or personal affairs of clients, agents and other speakers.

Article 7 – Business Practices

The NSA member is obligated to maintain a high level of ethical standards and practices in order to assist in protecting the public against fraud or any unfair practice in the speaking profession and shall attempt to eliminate from the profession all practices that could bring discredit to the speaking profession.

Article 8 – Diversity

The NSA member shall not participate in any agreement or activity that would limit or deny access to the marketplace to any other speaker, to a client, or to the public. This includes, but not limited to, economic factors, race, ethnicity, creed, color, sex, age, sexual orientation, disability, religion, or country of national origin of any party.

SIGNIFICANT QUESTIONS:

Just the other day, being interviewed as a business ethics speaker and author on a radio show, I was asked about the definition of “ethics”.  While many would think the answer would be simple – the reality is – ethics and ethical choices are those choices that are “right” based on the facts and circumstances of the situation at the time they are made.  Beyond ethics – right and wrong choices that have a moral fiber running through them – is the question of legal.  Sometimes what may be unethical may nevertheless be legal.  Many would say that actions that our financial institutions took with sub-prime mortgages were unethical – yet, they were legal.

Some might question whether raising the question (as an NSA member) is a violation of Ethics Article 5 – Respect & Collegiality. I hope that those who read understand that discussing or opening a forum for dialogue about ethics within our profession is not, in and of itself, disrespectful.  Likewise, for clarity, I have interviewed, in one form or another, both Dr. Lillian Glass and Marsha Petrie Sue – seeking their input first as this forum is opened.

But what if a choice made is illegal?  Does that make it also unethical?  That seems to be the issue that likely will be facing an NSA colleague – Marsha Petrie Sue.  As a speaker in leadership and a leader herself in NSA, having earned the coveted CSP (Certified Speaking Professional) designation, the likelihood is that an ethics investigation resulting from her conviction will happen sometime in 2011.  According to a conversation I had with Stacy Tetschner, CAE and Executive Vice-President of NSA, an ethics investigation will only happen if a formal complaint is filed with NSA.

Beyond the specific Ethics Standards, NSA has clear guidelines related to “Intellectual Property Guidelines” when it comes to presenters and presenting at NSA Conferences.  The guidelines are listed below:

  1. Understand the definition of intellectual property. Intellectual property is broadly defined as the original expression of ideas, as well as symbols and words that represent the products or services of a company or person.
  2. Respect the intellectual property of others. Below is a partial list of items considered to be intellectual property: cartoons, speeches, photographs, written material, overheads, signature stories, videos, logos/trademarks, movie/TV clips, drawings, audio-taped artwork, interviews, and other proprietary music materials.
  3. Comply with the law and the code of ethics. If you utilize any type of intellectual property that is not your own, get permission from the owner. Either obtain a formal license or obtain written permission to use the material. Please note that in some cases, the creator of the property is not the owner.
  4. Share with the audience that you have that permission. Include a simple, brief statement such as, “These photos are used with the permission of….” Sometimes the owner may require you to use a more formal notice, including for example, a copyright notice.
  5. If you use handouts that duplicate intellectual property with permission, be sure to add the phrase, “Used with permission of….” Your handouts might also explain that you have permission to use other materials (cartoons, photos, music, etc.) in your presentation. For example: “All of the materials presented in this presentation are either original, licensed or used with permission.”
  6. Know that NSA has obtained some limited rights to music. NSA has secured certain performance rights for your presentation from leading performing rights organizations. This will allow you to sing or play certain music during your presentation. This allows you to play certain prerecorded music as well. However, if you wish to synchronize your music to another media (sound on slide, video, etc.), then you must obtain a separate synchronization license. This is your responsibility, not that of NSA. In other words, NSA has obtained licenses for you to sing or play a CD of many (but not all) of the latest hit songs. As soon as you play it in conjunction with a slide show, you are breaking the law, unless you have obtained the further necessary permissions yourself.
  7. Notify NSA’s recording partner, Content Management Corporation, if you intend to use music. Then they can (at their option) either secure a mechanical license to duplicate the music or else they will need to edit out the musical selections from the tape of your program. Because it is unlawful to duplicate intellectual property without permission, you should also help CMC obtain the permissions necessary to fulfill their legal responsibility. In other words, you can sing songs NSA has obtained a license for. Should CMC duplicate/ distribute your performance, however, without a mechanical license, they might be breaking the law. For video-taped programs, the same notification is required for any visual media that would be reproduced, such as photos or cartoons.
  8. Tell the audience when you have created or commissioned your own intellectual property. If you have gone to the expense of creating and/or commissioning your own intellectual property, the NSA audience needs to know. You might use a brief phrase such as: “I had these cartoons especially created for my seminars.”
  9. Remember, as an NSA presenter, you represent the standard of ethical behavior.

Since NSA has gone to the trouble of listing specific guidelines with respect to the use of intellectual property, it would seem logical that being found liable in Federal Court of copyright infringement (violating intellectual property) would create quite a stir.

COULD IT BE ETHICAL BUT ILLEGAL?

Some might say I’m grasping at straws here, but is it possible that something could be found liablous (by a jury in a court of law) and not be found to be an ethics violation?  In communication with Dr. Lillian Glass – she says, in her opinion, no.  But what does Marsha Petrie Sue have to say?  In the interest of fairness, I raised a number of questions directly with Marsha Petrie Sue which, (in the interest of space), will appear in Part Two of this business ethics article.  For now, what is clear is that there are significant unanswered questions.

WHAT’S NEXT?

Whether there is an NSA ethics challenge is a function of whether a formal complaint is filed.  Assuming one is filed – the ethics committee will review the relevant material and make their determination based on the facts and circumstances.  Their findings will be published in the Speaker magazine and could include the following: (1) no action (assuming no violation is found); (2) letter of censure either public or private; (3) NSA CSP designation be revoked; and/or (4) NSA membership be revoked or suspended.  Likely, any action taken would be any of the above or a variation on the theme based on what NSA feels it appropriate.  Certainly, the negative publicity is, in and of itself, significant.

YOUR COMMENTS ARE WELCOME… (see Part Two for the Marsha Petrie Sue Interview and comments)

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2 Responses to Dr. Lillian Glass vs Marsha Petrie Sue – Does being found liable of “Copyright Infringement” equal an NSA Ethics Violation? Part 1 of 2

  1. In the interest of all parties here (and I’m not connected to either), I received an email from Marsha Petrie Sue that stated (in part) as follows: “I think some clarification is necessary because of an inadvertent mistake regarding the use of legal terminology. The post uses the word “conviction,” a legal term that applies only in a criminal case. This was not a criminal case and there was no conviction. Similarly, I was not found “guilty” of Illegal” conduct, rather I was “liable” in a civil suit.”

    Marsha…thank you for your comments and please note that I’ve taken the time and effort to correct any language that might be misleading – as that is certainly not my intent.

    I have (hope I got them all) removed words “conviction” or “guilt” and replace them with “being found liable” to more accurately depict what the Jury found in this case.

    Chuck Gallagher

  2. And I think even more clarification is necessary because of an inadvertent mistake regarding the use of legal terminology. The post uses the word “conviction,” a legal term that applies only in a criminal case. This was not a criminal case and there was no conviction. Similarly, I was not found “guilty” of Illegal” conduct, rather I was “liable” in a civil suit. Moreover, the case is not over. The judgment is subject to pending post-trial motions and appeals to another court. Some people believe that juries can make a mistake.

    Accordingly, under the law, matters are not considered final until all appeals are finished, something that is several years away. If a person accused someone in your family of doing something wrong, would you want them to be judged by others in the middle of the dispute or do you think that it may be more appropriate to wait until it is finally over?

    Do you believe that it’s unethical to demand more compensation than you’re entitled to under the law? Here, Dr. Glass demanded that I pay her $233,000 a few days before the Trial, even though she only asked the jury to award her $150,000 – and even then the jury only awarded $31,000. Do you think that those numbers tell a story?

    Dr. Glass’s press release did not mention the numbers in this paragraph. Why do you think she did not do so?

    Also, Dr. Glass sued on many claims, including many copyright claims. The Court threw out all of her claims except the one that went to a jury. Do you think it’s ethical to bring so many claims that are so meritless?

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