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.
Trademarks And Non-Profit Organizations
It is becoming necessary for non-profits to compete for funding and donations. Name recognition is more important than ever. For that reason, non-profit organizations must protect their name and brand. Federal trademarking provides protection and is a great way to spread awareness. Incorporating and registering as tax-exempt from the Internal Revenue Service provides some protections. However, a federal trademark is still vital to protect the intellectual property of a non-profit organization. Registering a trademark on a non-profit organization’s brand will add safeguarding and value to the business. If you ever decide to merge, expand, or sell the company, the organization’s value will also be higher than those without a trademark. A trademark will provide you with legal benefits and branding rights you otherwise will not have. If you have questions about trademarks and non-profit organizations or would like to begin the process, call a knowledgeable attorney at Jennifer V. Abelaj Law Firm at 212-328-9568.
Requirements for Registering a Trademark with the Federal Government
According to the Legal Information Institute, a trademark identifies the seller or maker of goods or products. It may be a symbol, design, name, sound, fragrance, or any combination the business uses to promote or identify itself. There are two significant requirements for trademark registration.
The company must use the trademark for commerce purposes, and the mark must be unique. While the use of a logo provides some protections on its own, there are limitations. Thus, registered trademarks receive significant advantages over those without legal ownership. A knowledgeable lawyer at Jennifer V. Abelaj Law Firm could answer questions and provide more information on trademarks and non-profit organizations.
The Legal Benefits of a Federal Trademark for Non-profits
Trademark rights are automatic when the business uses a symbol to represent the brand. Yet, the laws limit those rights to the company’s region. Federal trademark registration provides a higher level of protection and protects the non-profit’s intellectual property. Filing will also ensure they do not infringe on the rights of others. Some of the other legal benefits of federal trademark registration are detailed below.
Nationwide Protection
The business acquires some automatic rights in the state where they operate. It happens after simply using the trademark. Yet, federal registration is nationwide. Federal law protects the non-profit mark in all 50 states. It provides protection even when the company only does business within one state.
Federal Court Protection
If another business uses a registered trademark, the non-profit business owners will have legal rights. They can take them to federal court, and the judge will immediately order the infringing business to stop using the symbol. The court may also hold the infringing company accountable and allow the non-profit to collect damages.
Public Awareness
Registering the trademark will mean notification to the public. People will know that the brand represents a specific non-profit organization. They can quickly identify and distinguish it from other non-profit organizations.
Evidence of Ownership
The organization will receive proof of registration. After completing the process, they will receive a federal trademark registration certificate showing ownership.
The United States Patent and Trademark Office‘s Online Database
Upon the USPTO’s approval and registration of the trademark, they will list it on the online database. The website will offer trademark owners more benefits.
Benefits of the Trademark Database
After listing a non-profit on the website, businesses can access the online data. Searches are a vital first step in the registration of any new trademark. They can review current registrations and those already in process. Searching will ensure they do not go through the filing process for a symbol that is in use or too similar for approval. Some other benefits of listing a registered trademark in the database include:
- Potential trademark owners will see that the non-profit organization’s brand is already in use.
- The non-profit can search for the misuse of a trademark by other entities.
- Organizations can conduct searches before making business decisions. Searches can help them decide on significant financial transactions, expansion, or mergers.
The trademark database provides a more manageable process and helps with monitoring after completion.
More Benefits of Federal Trademark Registration
When thinking of a trademark, most think of for-profit businesses. Yet, they are also critical for the future success of non-profit companies. A popular or known brand will help identify new ways to generate revenue. That will allow the business to continue investing time and resources into essential work. It will ensure a positive future for the company’s mission and the reason for the operation. Federal registration will provide many other perks for the non-profit organization. Some benefits include:
- Registering the trademark will mean countrywide brand awareness.
- The non-profit controls the name and logo licensing for marketing and fundraising purposes.
- The trademark is an asset and will add value to the non-profit corporation.
- More brand awareness gives a higher potential to expand the entity in the future.
- There is a more straightforward process for international trademarking rights after federal registration.
- The non-profit business has legal rights to use the registered trademark symbol.
Trademarks are critical for non-profit organizations for many reasons. After registration, the law considers the non-profit business’s trademark as intellectual property. Potential sponsors may be more likely to make donations or support the charity. Most are more likely to give to a charity or cause to organizations they are familiar with and recognize.
Call an Experienced Attorney About Trademarking a Non-Profit Business Today
For non-profit organizations, reputation and promotion are of the utmost importance. By registering your trademark, you would increase brand awareness while promoting public awareness. 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 Jennifer V. Abelaj Law Firm. You can reach them at 212-328-9568.