Fair Use Defense of Image and Excerpt Citation for Nonprofit Public Use
By H. Robert Showers, Esq. and William R. Thetford, Esq.
February 25, 2022
Many businesses, organizations, and nonprofits have questions about what images they can use on their website. Especially when you are a nonprofit, when is reproducing an image fair use and thus not in violation of U.S. copyright law? The uncomfortable reality is that there is not a clear bright line rule for fair use. However, a review of the principles and resources noted below can help reduce the risk of your organization being brought to court over its use of images.
Absent permission by the copyright owner or ensuring an image is in the public domain, there are only varying degrees of risk that you will be challenged and the associated risk of prevailing or losing in court. Congress and the courts have recognized that this is a somewhat flexible approach, and thus they utilize a four-factor test to determine when the fair use defense applies. That means that whether fair use applies is a gradient, not a box with clear boundaries. There are some very clear items around the edges and a lot of uncertainty in the middle.
The United States Code provides the following standard and four-factor test:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.1
The good news is that many items, like social media posts, can fit into categories such as “comment, news reporting,” or educational purposes. A good resource from the Copyright Office itself discussing the fair use defense factors in a little more depth can be found here: https://www.copyright.gov/fair-use/more-info.html.
The reason these situations can be uncomfortable is that fair use determinations are only made by the courts after the person or entity using the work is sued by the copyright owner and both sides spend thousands of dollars litigating the matter. Each organization has to make a business determination of the degree of risk it wants to take at the outset. The only near-zero risk option is to only use images with written permission (whether by paying copyright owner or not) or in public domain.
The stronger your fair use argument, the less likely you are to get sued. For example, an image is used for a nonprofit educational purpose, alongside a bare-bones factual/news related item, only a small portion of the copyrighted work is used, the work is transformed to suit the purpose, and the use does not impact the market value of the work. The weaker the fair use argument, the more likely you are going to get challenged.
Thus, if you choose to take the position that you will take photos, excerpts, or copyrighted works and use them without permission for fair use, you will probably be challenged to some extent. If you are careful, you can dissuade many claims that will likely arise as a result of this position and put yourself in the position to either win or settle many of them for lower amounts. If you are more aggressive, you will have to be prepared for greater risk of claims, lawsuits, and worse results in them.
Note that even small organizations with a small reach are not immune. There are many firms now that individual copyright owners hire to crawl the web and specifically search out any potentially copyrighted images. They then make large demands and force the organization to make a choice between paying thousands in legal fees to an attorney to defend the claim or paying thousands to the demanding firm. That firm then keeps a portion of the proceeds and a portion goes to the copyright owner.
When challenged, an organization has the difficult choice of knowing when to call a challenger’s bluff and seeing if they sue or simply settling for nuisance value. Some challengers may be easier to deal with than others.
Following are example scenarios to help clarify the fair use box’s muddled middle.
Social Media in General
One can probably assume that “retweeting,” “sharing,” or using a designated mechanism within a social media platform, is tacitly consented to by the poster (assuming the poster was the one who owned the copyright). Using it in another form, even though frequently done, is subject to the same copyright analysis and four factors above.
Pictures of World Leaders
Question: If a nonprofit asks for its followers to take note of a world event or pray for a certain situation, will using headshot photos from social media pages, without consent, result in copyright liability?
Answer: The fact that it is a public figure helps you on several factors in the fair use test. It is likely a nonprofit educational purpose if you are using it to illustrate a call to prayer about a news event. Also, a straightforward headshot of a public figure (or news event) is more like a factual piece than a creative or imaginative work. Many other facts and circumstances will play into these and other factors. In general, taking the public figures’ photos from the figures’ own social media profiles is lower risk than some other uses. While there is still some risk that the public figure or the copyright owner (if different) could pursue an infringement claim against you, it is less than other more serious risks. In fact, just because someone posts it on social media does not mean that they are the owner of the copyright; they could be infringing on someone else’s copyright. It is no defense, however, to the true copyright owner that because someone else had taken it, it was acceptable to also take it.
Again, the way you use the photo is an important part of the determination itself. If you use the photo for commercial purposes, you will be a target and almost certainly lose. If you use the photo for nonprofit educational purposes, by having a transformative use, like commenting on a news item associated with the person or photo, etc., you are making a stronger case for fair use, but a court will look to all factors.
The owner of the copyright for a mugshot would usually be the government entity that took the pictures (local police department, etc.) The federal government does not allow itself to own copyrights, so its works are automatically, typically, in the public domain. Thus, federal agencies’ posted mugshots would usually be public domain. State law enforcement agencies differ from state to state, but many allow their mugshots to enter the public domain. Some states also have certain privacy laws in place restricting use of mugshots in certain situations. See this article from the Rutgers Law Review, for a discussion on state-by-state mugshot accessibility and privacy laws (page 591 and following): http://rutgerslawreview.com/wp-content/uploads/2018/09/ Monetizing-Shame-Mugshots-Privacy-and-the-Right-to-Access.pdf.
Action Step: Try and see if you can confirm whether or not the mugshot is in the public domain and if there are any privacy restrictions on the use of mugshots in the state where the mugshot was taken.
Question: If we routinely excerpt articles from other sources, would this be covered by the Fair Use Doctrine?
Answer: The longer the excerpt, the more likely the copyright infringement has occurred, and the less likely a fair use defense will apply. There is no clear line as to number of words; the matter will depend on the specific facts and circumstances. Common sense applies: if the work itself is longer, there is a better argument for a longer excerpt under fair use. The reverse is true for shorter works: ideally, the shorter the work, the shorter the excerpt, to prevent claims of infringement. Reposting whole articles or major portions of a work without permission is a risk.2 Simply repeating the facts contained in a news report with brief quotations is normally acceptable.
One frequent misconception: giving credit to the author does not eliminate a copyright infringement claim. Giving credit where credit is due prevents plagiarism, but the copyright owner can still go after someone who uses their work whether it is credited or not. Crediting the work is, however, less likely to exacerbate risk.
Finally, another general brief resource you may consider is https://www.americanbar.org/groups/gpsolo/ publications/gp_solo/2011/september/fair_use_news_reviews/. This article applies primarily to news clips, but the principles are similar to restrictions on written excerpts and photos as well.
If you have been challenged and need representation regarding your image use you can contact one of attorneys at Simms Showers with knowledge of intellectual property law and civil litigation. In addition, you may want to consult with an attorney proactively to ensure that (1) your practices do not result in an interruption to your regular work or ministry and (2) address any issues can be headed off before your options become more limited or more costly once a claim is filed against you.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. We thank our Paralegal, Josiah Aden, for his help on this article. Please contact Robert Showers at email@example.com or Will Thetford at firstname.lastname@example.org for legal advice that will meet your specific needs.
1 17 U.S.C § 107 (2010).
2 If there are particular publications that you find you frequently want to cite, you may be able to ask about forming some kind of relationship so that you can repost on your website with credit and link to their website for more details, which may serve to your mutual advantage.