NonProfit 411: Understanding Copyright: Is your use “fair use”

Ellen Lubell

What you should know about copyright and fair use.

Ellen Lubell, Esq., Tennant Lubell, LLC

Nonprofits, like any business, may create, sell, and otherwise use copyrighted works, but they should be attentive to any uses that may impact their funding or tax-exempt status.  As two quick examples: A nonprofit that creates materials using foundation funding should note any requirements of the foundation to attribute or disclaim the materials or to use revenues derived from their sale. A nonprofit that develops software and wishes to permit others to use it may need to grant permission only at fair market value, so as not to run afoul of “private benefit” restrictions that impact tax exempt status. Here’s what you should know about copyright and fair use:

Copyright Generally

“Copyright” is the legal right given to the creator of an original work to control copying and use of the work. Works covered by copyright must be expressed in such a way that they can be perceived and communicated. A written text, graphic design, or sound recording may be protected by copyright; a speech that is neither written down nor recorded is not.

Exclusive Rights

The owner of copyright has the exclusive right, for a specific time period, to copy, distribute and publish the work, create spin-offs (“derivative works”), and perform, broadcast, and display the work.  Anyone wishing to use the work in these ways must obtain permission from the copyright owner.

Duration

Duration of copyright varies depending on when a work is created, and whether or not it is published or created for an employer. Generally, the duration of copyright of a work created by an individual after 1978 is the life of the creator plus 70 years. The duration of copyright of a work created for an employer after 1978 is 95 years from first publication of the work or 120 years from creation, whichever ends first.

Fair Use

Under certain circumstances, a copyrighted work may be used without permission of the copyright owner. Such use is referred to as “fair use.” To determine whether use of a work will likely be considered fair use, the following factors are considered:

1.  The purpose of the use 

Likely to be considered fair use: Educational and non-commercial uses   

Not likely to be considered fair use: Commercial uses    

2.  The nature of the work

Likely to be considered fair use: Works likely to have been intended by the creator to be used further or incorporated into other works.

Not likely to be considered fair use: Works unlikely to have been intended for further use or incorporation into other works.

3.  The portion of the work to be used and its importance to the whole

Likely to be considered fair use: Use of a relatively small or inconsequential portion of a work.

Not likely to be considered fair use: Use of a relatively large portion or any portion that expresses the essence of the work.

4.  The likely effect of the use on the value of the work

Likely to be considered fair use: Use of a work published years ago, where there is little chance of interfering with sales of the work.

Not likely to be considered fair use: Use of a recently published work, where revenue from the work may be diverted from the copyright owner.

 

Legal assistance can be valuable to develop copyright policies and practices that address the specific needs of your nonprofit organization. Evaluation of these factors can be complex and it’s helpful to have an attorney review a proposed use of a copyrighted work to assess whether or not the use is likely to be considered fair use. If not, permission from the copyright owner should be sought.

Tennant Lubell, LLC is an affiliate member of the Massachusetts Nonprofit Network.