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Fair Use: Can I Use this for My Association?

Posted By Laurie Pumper, CAE, Communication Director, Thursday, August 6, 2015

If a newspaper runs an article that mentions your association in a positive way, can you share it with your association members in a printed newsletter or magazine? If a member sends you an article that she wrote for a trade journal, can you reprint the article in your own association journal? If a member shares photos from your association’s event on your Facebook page or Instagram account, can you publish those photos in your newsletter or post them on your website? The answer is not always an easy yes or no.

 

In deciding whether its publication can use an article or photo, some associations say, “We can do that — it’s fair use.” They’re referring to the fair use doctrine, which has been in use in the U.S. since the 19th century and written into U.S. copyright law since 1976 (17 U.S.C. § 107). The fair use doctrine is intended to allow for limited use of copyrighted materials — but not as widely as some people think. It doesn’t allow you to reprint an article from a trade journal in your own publication, unless you make arrangements with the original publisher. It doesn’t allow you to use a photo or artwork from another organization’s website, unless you get permission. But the fair use doctrine does allow publishers (including associations) to use copyrighted material in a variety of ways, including criticism, commentary, news reporting, teaching and research.

 

The doctrine includes four factors that courts will use to consider whether use is fair:

 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work.

    Merely saying that your use of an article in an association publication is educational doesn't mean that you will avoid problems. Publishers have successfully used the fourth factor, “potential market for or value of the copyrighted work,” to argue that they should be paid for reprinting an article.

    The easiest way to avoid trouble is to ask upfront. Major newspapers and magazines have policies that allow non-profit organizations to reprint articles. You’ll probably have to pay a fee to reprint that kind of article, but the fee may be quite reasonable (depending on the size of your publication’s circulation, whether you plan to keep it on your website indefinitely, and how important that particular article is to your readers). If you want to use an article written by another association, there is a reasonably good chance that the association will allow you to use the article without a fee, as long as you include a statement about where the article originally appeared. If your member wrote an article that appeared in a different publication, he may or may not hold the copyright to the work; it’s best to check with the publication prior to re-using it.

    Sometimes, you can get into trouble unintentionally. On two separate occasions, I’ve seen volunteers who didn’t know about copyright law turn in articles that were later found to substantially copy another piece (in one case, almost word for word). To help protect yourself and your organization from this situation, it’s very helpful to have each author sign an agreement with language such as, “I have written this material myself and have not copied it from another source.” Your association attorney can draft something, and ASAE has several model author agreements too.

    If you really are using another author’s work for commentary or as the basis of news reporting (rather than simply reprinting an article), it’s easy to include a link to the original work. In this way, your readers can access the original material and the copyright holder maintains control of the work.

    Photos and works of art have copyright protection, too – and again, not knowing the rules doesn’t mean that you’ll be absolved from paying royalties if the owner/author finds that you’ve used their work. If a volunteer submits photos that she has taken at your annual conference and understands how you intend to use them, you should be safe…but having it in writing protects your organization from misunderstandings. Again, check out some model policies at ASAE’s website and/or have your association’s attorney help to draft language for you.

    Please note that this article is intended to provide general information, not as legal advice. Consult with legal counsel on specific issues.

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