Section 107 of the Copyright Act of 1976 offers the following examples of fair use purposes: “criticism, comment, news reporting, teaching, scholarship, or research.” Unfortunately, to make things more complicated, not every use in one of these categories is considered “fair use” and instead the following four factors are examined to determine whether any particular use is fair:
1. PURPOSE AND CHARACTER OF USE. Is the use commercial, educational or is the use “transformative”? Tat is, does the “new” item provide new purpose, expression, meaning or message? For transformative uses think of your favorite meme. Te photo might be protected, but the additional caption potentially transforms the item. Most associations will not use protected items for profit or a commercial purpose, and protection might be afforded as a result. Tis doesn’t mean that all uses are protected, as the remaining fac- tors also must be considered.
2. NATURE OF THE ORIGINAL COPYRIGHTED WORK. Copying a work that presents facts is more likely to be determined to be a fair use than copying creative or fic- tional works. Presenting or quoting facts is a bit differ- ent than presenting a short story as your own.
3. AMOUNT AND SUBSTANTIALITY OF WHAT WAS USED. It isn’t considered fair use to take an entire work, or to take more than needed for the alleged purpose. Here consider merely quoting the parts of the article needed to make your point.
4. EFFECT ON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK. If the new item competes with the original in the market, it likely won’t be considered fair use. Association board members need worry less on this one as most newslet- ters and informational postings aren’t intended to gen- erate business, but to merely inform.
Tese factors aren’t easy to apply and courts review alleged violations on a case by case basis. Unfortunately, there isn’t an easily defined formula to ensure that a particular use is okay so your association will want to proceed with a bit of caution.
So what is an association to do? One of the easiest ways to avoid liability is to ask permission.
If you are able to
contact the person who posted the information, article or photograph, drop them a line and ask them if you can use their work.
Since this person might not have ever heard
of an association (crazy, right?), start by explaining a little about your association and then explain why and how you want to use their work. At this point you may be met with resistance, a request for money or an outright denial. Regardless of the response, it is far better to know up front than to pay the consequences later.
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Another option available to associations is presented by the Creative Commons copyright licenses and tools.
Tese
defined licenses and tools balance the traditional “all rights reserved” created by copyright law with a standardized way for creators of new material to grant certain, defined copyright permissions to their creative work. Te creator of the content may authorize certain noncommercial uses of the item they have created. If you’re looking for content for your newsletters, websites or social media postings, you can use Google to search for Creative Commons content, or look for pictures available under a Creative Commons license on Flickr.
Tis issue is fairly complex and difficult to encapsulate in a short article. Board members should understand, however, that this is an area that might present potential liability for the association. Because creators are often happy knowing someone wants to share their work, asking for permission may solve the issue before it becomes a problem. Creative Commons licensing also provides a plethora of content for your community. And if all else fails, put the word out to your community – chances are you have some creative owners who are willing to create new content for your newsletters, websites and social media outlets.
Tis article was written and submitted by James R. McCormick., Jr., Esq,., CCAL of Peters & Freedman, L.L.P.
May / June 2017
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