Nonprofit Use of Intellectual Property: Copyright Infringement or Fair Use?
Many nonprofit organizations are interested in having a welcoming website with images, logos, and education resources. When deciding whether to use a particular graphic, it is important for nonprofit organizations to be aware of the difference between copyright infringement and fair use when they are using material they do not own.
It is a common misconception that nonprofits are not subject to copyright infringement because the materials they use are not for commercial or for-profit purposes. Although the non-commercial use of materials may weigh in favor of a nonprofit to not be subject to copyright infringement, that is not always the case. It is vital that nonprofits keep track of the material they use because there are penalties for copyright infringement that could greatly impact an organization. Below are some common questions a nonprofit might have regarding copyright infringement and fair use.
If you have questions about trademarks and non-profit organizations or would like to begin the process, call a knowledgeable attorney at Abelaj Law, P.C. at 212-328-9568.
An Intention to Commit Copyright Infringement is Not Required for Liability
An organization can be liable for copyright infringement even if it did not know the material was copyrighted or that, in order to use the material, they needed to gain permission from the owner. A nonprofit can be exposed to vicarious copyright infringement even when the organization itself or its employees do not know they are using copyrighted material. This means a nonprofit is responsible for any harmful actions its employee commits, which includes using copyrighted material they do not own.
Fair Use Doctrine Does Not Automatically Protect Nonprofits from Copyright Infringement
Fair use allows a person to use a portion of copyrighted work that they do not own without permission from the owner to use the material. Nonprofit status, on its own, does not give the organization permission to use copyrighted material without permission under the fair use doctrine. However, if the nonprofit is using the copyrighted material for non-commercial use, such as using an image to promote a program or event that the organization is hosting, may weigh in its favor in determining whether fair use is applicable.
Factors Considered to Determine if the Use is Fair Use or Copyright Infringement
Determining whether something is fair use is not a “one size fits all” test. Courts will look at each individual case to evaluate whether an organization committed copyright infringement or if it is fair use. Because each nonprofit is unique and uses materials differently, the courts will review each organization’s circumstances when making its determination.
There are four factors that courts use to evaluate whether something is fair use or not[1]:
- Purpose and Commercial Nature. The purpose and character of the copyrighted material. This includes whether the material was used to commercial nature or is for nonprofit educational purposes.
- Unique or Factual Nature of the Original Work. The nature of the copyrighted work. Here, the court will shift its focus onto the original work (the initial material that the nonprofit used) to see if it has a lot of creative expression, whether it has been published, and if the original work incorporates primarily factually information like a news story.
- Portion of Original Work Used by Nonprofit. The amount of the copyrighted portion the nonprofit used in relation to the original work as a whole. Here, the court will look at how the nonprofit used the material and ask: Did the nonprofit only take a portion of the material? How much of the original material did the nonprofit use? Did the nonprofit take the original material and incorporate it into some of its own material?
- Economic Damages to Original Work. Finally, the Court will consider the effect of the market value of the copyrighted work. Many nonprofits might not think this last factor would apply to them, but that is just a myth. When evaluating this final factor, the court might look whether any economic harm has been done to the copyright owner and if the material the nonprofit is using is a substitute for the original owner of the material’s marketplace. This might be more common for nonprofits that operate in the healthcare, education, or arts sectors because they may be publishing or distributing more informational materials on their website.
Using Small Portion of Copyrighted Work May be Allowed
If a nonprofit takes a small amount of copyrighted work, a court might rule in favor of the nonprofit by stating they had a de minimis taking. This means that the nonprofit took an insignificant amount of the copyrighted material, and that no harm was done, even if it was taken without permission from the owner.
Although using a small portion of a copyrighted work without permission may mean no penalty, it is not a best practice to do so. A nonprofit should not get into the habit of taking small portions of other people’s copyrighted materials without their permission from the owner. Securing permission from the owner, rather than relying on de minimis taking, is the safest option as it will protect the organization from copyright infringement penalties.
Penalties for Copyright Infringement are Steep
Penalties for copyright infringement can be significant to a nonprofit. A court may order a nonprofit to pay actual damages, such as any profits the owner lost, statutory damages between $750 – $30,000, or in the case of a nonprofit’s willful copyright infringement, it can be fined up to $150,000. Additionally, a nonprofit that is found to commit copyright infringement may also be subject to paying the owner of the copyright’s legal fees. In extreme cases, a court may issue an injunction, where they will stop the nonprofit’s use of the copyrighted material.
Seeking Permission to Use Copyrighted Material is Best Approach
A work may be copyrighted if a nonprofit uses an image that has already been registered with the United States Copyright Office or if someone has already made it known that they are the creator of a particular image. Although there are some circumstances where a nonprofit may not be liable for copyright infringement, it is best practice to get permission from the copyright owner. It is also important for a nonprofit to keep track of any material on their website, advertisements, pamphlets, cards or donation pages, etc., that they are currently using or have published.
A nonprofit should confirm that all the materials they are using are either something they own or have valid permission to use. Be sure to let anyone who has access to updating the nonprofit’s website, social media, or other digital communication double-check the image they are using before posting. If a nonprofit is not sure if something is copyrighted or if it is unsure about whether the organization has permission, do not post it and/or remove it from your website, donation page, social media or other public documents.
Call an Experienced Attorney About Protecting Your Nonprofit’s Copyrighted Today
For non-profit organizations, consistency in marketing and knowability are critical to maintain its favorable reputation and fundraising success. By knowing the laws of fair use, you can take action to protect your brand awareness if another organization attempts to use it. Federal registration of the business’s trademark is imperative for long-term goals and success. The law does not require that companies operating within the United States retain a lawyer for the trademark application process, however, the United States Patent Trademark Office encourages it. An attorney experienced with trademark law can help you through the complex process. They could ensure no avoidable delays or potentially losing rights to the trademark. To hear more about trademarks and non-profit organizations, call a seasoned lawyer at Abelaj Law, P.C. You can reach them at 212-328-9568.
