Take a minute to think about all the places your nonprofit uses photographs - your website, the blog, social media, brochures, etc. The list could go on and on. Here's a question to ponder: Are any of those pictures infringing someone else's copyright? If they are, you could be forced to pay damages.
Fortunately, Pro Bono Partnership of Atlanta shared with us some facts about copyright law and a few things to consider before using copyrighted material. What follows is a summary of their recent presentation; it provides general guidelines and should not be construed as legal advice.
First of all, what is a copyright?
It's a legal protection of an author's creative expression. It protects things like literary works; musical works (including lyrics); dramatic works (including accompanying music); choreography; pictorial, graphic, and sculptural works; motion pictures; sound recordings; and architectural works. You don't need to register a copyright in order for your work to be protected. Further, you are not required to post a copyright notice, but posting a notice can be helpful in telling people that you claim a copyright in the work.
What does a copyright protect?
A copyright protects the author's right to determine how the work is distributed, reproduced, displayed, or performed. The author also has discretion over the creation of derivative works.
So when should your nonprofit take copyright law into consideration?
1. When using someone else's copyrightable work
This will most often come into play when you're choosing pictures to use on your website, social media platforms, or print materials.
Factors to consider in using photographs of people include not only copyright ownership but also the right to privacy:
- Who owns the photo? Usually the person who took the photo owns the copyright. If your organization doesn't own the copyright, do you have permission from the person who does?
- Where was the photo taken? Although not a universal rule, photos taken in public spaces are less likely to be objectionable.
- How will you use the photo? Make sure you won't be revealing private information or misrepresenting the circumstances. You also should not draw attention to the people in the photo in a way they wouldn't expect, such as using it to create an endorsement they haven't given. The most important factor to consider is whether using the photo could damage your organization's relationship with a volunteer, donor, or those you are trying to help.
Be aware that using a photograph of someone else's picture or work can be the same as making a copy of it, and such copying counts as copyright infringement. Additionally, you cannot reprint stories about or photos of your organization or events without permission from the media outlet. If you want to share a news story with your audience, a better practice is to send out a link to the original article.
2. When leveraging your own copyrightable works
Any brochures, curriculum and training materials, photographs, articles, website content, and software your nonprofit has created are protected under copyright law. Other organizations may want to use those works instead of "reinventing the wheel" because the works fit with the goal they are trying to achieve. If that happens, you can opt to give permission to that other organization, such as by entering into a licensing agreement with that organization.
If you choose to establish a licensing relationship, create a written agreement. You likely want such an agreement to clearly identify what material is being licensed, recognize your organization's authorship, clarify your organization's ownership of derivative materials, and provide for a non-exclusive license (so you can license the material to multiple other organizations) that is either perpetual or for a fixed amount of time. You may also want to consider making the license non-transferrable so the licensee organization cannot transfer its license to someone else without your permission. Additionally, under some circumstances, you may want to charge a royalty fee for the license, which could have tax implications.
Other things to consider regarding your copyrightable works:
- Enforcement: For the content that your organization most highly values, you should monitor periodically for unauthorized use of the content. If you find instances of infringement, start with reaching out to the individual or organization to request they take down or stop circulating the content, to request they acknowledge your organization's authorship, or to suggest a licensing agreement.
- Registration: Even though all works are automatically copyrighted, registering a copyright can make identifying it easier to identify the work for licensing agreements or obtaining certain kinds of damages. Copyright registration costs $35 per work.
For more details on this topic, be sure to check out Pro Bono Partnership of Atlanta's website for resources including a recording of a past webcast on how nonprofits can use photos legally.
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