Under certain circumstances, a copyrighted work may be used without the permission of the copyright owner. Such use is referred to as “fair use.” To understand fair use, a few basics on copyright are useful.
Copyright is the exclusive legal right given to the creator of an original work to control copying and distribution of the work. To be protected by copyright, a work must be expressed in such a way that it can be perceived by and communicated to others. For example, a written text, a graphic design on a live website, and a sound recording may all be protected by copyright, but a speech that is neither written down nor recorded is not protected by copyright.
The owner of copyrighted work has the exclusive rights, for a specific time period, to copy, distribute and publish the work, create derivative works (such as spin-offs), and perform, broadcast, and display the work publicly. The owner also has the exclusive right to permit others to do any or all of these things with the work. This means that anyone wishing to copy or distribute a copyrighted work, prepare a derivative version of it, or perform, broadcast or display it publicly must obtain permission from the copyright owner before doing so.
Under “fair use” circumstances, a copyrighted work may be copied, distributed, used for derivative works, performed, broadcast or displayed without the permission of the copyright owner. Fair use is not an affirmative statement of permitted use, however; it is a defense. This means that someone who uses a copyrighted work in certain limited ways, without the permission of the owner, can defend his/her or their self against a claim of infringement by demonstrating that the use is permissible as “fair use.”
To determine whether use of a work will likely be fair use, several factors are considered, as indicated in the table below.
Is Copying A Work Likely To Be Considered “Fair Use”?
|Likely to be considered fair use:||Not likely to be considered fair use:|
|The purpose of the use||Educational and non-commercial uses and parody. For example, printing 15 copies of an article for classroom teaching, or copying a short clip of footage from a film for a video for personal use, or performing music that parodies a copyrighted song.||Commercial uses such as inclusion of a photograph in a print or online publication for sale, or incorporation of a clip of a film in a commercially-sold video.|
|The nature of the work||Works that are likely to have been intended by the creator to be used further or to be incorporated into other works, such as a book of quotations or a history text.||Works that are unlikely to have been intended by the creator to be used further or to be incorporated into other works, such as a poem or oil portrait.|
|The portion of the work to be used and its importance to the work as a whole||Use of a relatively small or inconsequential portion of a work, such as a sentence or an illustrative paragraph from a volume.||Use of a relatively large portion of a work or use of a portion that expresses the essence of the whole work, such as an entire chapter of a book, or one minute of a film that captures the central viewpoint of the filmmaker.|
|The likely effect of the use on the potential market for, or value of the work||Use of a work published many years ago, where there is little chance of the use interfering with sales of the work, such as copying portions of a 10-year old news article.||Use of a recently published work, where revenue from sales of the work may be diverted from the copyright owner, such as using portions of a current best seller.|
The evaluation of these factors can be complex. It’s a good idea to have an attorney review your proposed copying and/or other use of a copyrighted work to assess whether or not the copying or other use is likely to be considered fair use. If it’s not, prior permission from the copyright owner should be sought. If possible, that permission should be tailored to the specific uses you require.
Nonprofits, like any businesses, may create, sell and otherwise use copyrighted works for a wide variety of purposes, but they should be attentive to uses that may impact their funding or tax-exempt status.
For example, a nonprofit that creates materials using foundation or government funding should take note of any requirements of the foundation or government agency to attribute or disclaim the materials in a particular way, or to use revenues derived from sale of the materials. A nonprofit that develops materials that it wants to permit others to copy or distribute should grant such permission only at the fair market value of the materials so as not to run afoul of “private benefit” restrictions that might impact the nonprofit’s tax status.