Nonprofits and Copyrights: What You Need to Know
Copyright attorney Kate Spelman shares how your nonprofit can protect its original material and ensure you’re not improperly using someone else’s material.
Make sure your nonprofit isn’t improperly using material that someone else owns.
There are two things to worry about with copyrights: Protecting original material that your organization has created, and making sure that your organization isn’t improperly using material that someone else owns. Blue Avocado asked copyright attorney Kate Spelman to help us with these issues, and she generously gave all of us her expertise and time.
Should we be copyrighting things we publish in print, on our web site, in our music CD, and elsewhere? Is it enough to put a © (copyright symbol) on things?
Kate: It’s a good idea to put the © symbol (a ‘c’ in a circle) on original materials, along with the year and the copyright owner. But a copyright can’t be enforced unless the work has been registered. See the U.S. Copyright Office at www.copyright.gov for the official site.
Is it hard to register a work?
Not really. Works can be registered at the United States Copyright Office for $45 each, and the benefits include having facts asserted in the application taken as true by a court, and the ability to ask for attorneys’ fees and statutory damages. The filing of a copyright application is intended to be done by citizens, not lawyers. It is a straightforward set of questions to answer and you can do it online.
What’s the most common copyright question that arises for nonprofits?
A frequent problem is who owns a work. Is it the nonprofit? The staff person who wrote it on the job? A volunteer? This usually doesn’t become an issue until there is financial success. But photographers, writers, authors, musicians, artists, and others may create work where the question will arise. Sometimes, for example, a volunteer will write something for an organization that turns into a book that the author wants to sell.
What should our organization be doing about this?
It’s best to establish who will own the copyright at the very beginning — -of the volunteer’s work or of the employee’s project.
What steps should the board take to make sure that our organization respects the copyrights of others?
Make sure the staff knows that it’s important to the board both to respect the rights of others and to protect the organization’s work. If your organization publishes frequently, adopt a policy that requires an agreement on copyright to be signed by employees, contractors, and volunteers in advance of work done and that requires a report to the board before any agreement is signed that gives those rights to others. When you look at work produced by your organization — – whether written, musical, photographed, drawn, programmed, or translated — – check to see that the copyright mark is present, and if the work is a major one, ask if it has been registered. When you see something reprinted in your organization’s newsletter, ask to be sure that permission was appropriately granted.
Is there a good place on the Internet where I can download sample copyright forms and other documents?
Unfortunately, no. But have a look at https://copyright.gov/ for a good place to start.
What is Creative Commons?
Creative Commons is an approach to allow limited, noncommercial copying and distribution. A common dilemma for nonprofits — especially those that publish online — is the desire to have materials used and disseminated as widely as possible combined with the need to protect original content. Creative Commons is an internationally recognized nonprofit that has developed an approach and accompanying free tools for granting various “some rights reserved” licenses. For example, a work can be licensed to users provided that it is used for noncommercial purposes, is attributed to the author, and is not modified. Creative Commons licenses have been welcomed by our firm and by much of the intellectual property legal community. More information and licenses to download are at https://creativecommons.org/
How would you sum this all up?
A proactive version of the ‘Golden Rule’ applies to copyright: get permission and be clear in advance of who owns what, and give credit generously, as you would have others do unto you.
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About the Author
Kate Spelman is an attorney at Cobalt LLP in Berkeley, California, with a national and international practice in copyright law. She has worked for Fortune 500 companies as well as many nonprofits. She is a board member of the American Intellectual Property Law Education Foundation and loves used bookstores and fly-fishing.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. The opinions and views expressed in this article are solely those of the authors. They do not purport to reflect or imply the opinions or views of Blue Avocado, its publisher, or affiliated organizations. Blue Avocado, its publisher, and affiliated organizations are not liable for website visitors’ use of the content on Blue Avocado nor for visitors’ decisions about using the Blue Avocado website.
This is a quite narrow approach of the question of copyright, in the actual context : Google and the digitization (and monetization) of the commons of the public libraries; the long, too long protection of the cultural products (70 years after the death of the author !) that is opposing the “natural” return of these products into the collective stream that permit, at first, their creation…
I would add these other sources on this subject :
– A presentation (video) of the history of copyright by Lawrence Lessig, and other works of this founder of the Creative Commons
– An essay, published in The New York Review of Books, by Robert Darnton :
Google & the Future of Books
But maybe it is too much to ask (a more comprehensive and critical approach) from a lawyer working in (or around) the American Intellectual Property Law Association ? ;-)
Gilles, Thank you. You are indeed welcome to pose the question to any other member of the AIPLA copyright committee. They are dear colleagues and friends and you are correct that a lawyer, not just those of us who are active in the AIPLA, are happy to give a more ‘comprehensive and critical approach’…. but this one, who fills that description, had a mandate to be brief… even had word count limits. So, have at it and find that more comprehensive and critical approach. The ‘sources’ that you cite are from a different copyright perspective; and neither Lessig (an academic) nor Darton (a librarian) are active in the AIPLA.
I don’t believe this is true: “But a copyright can’t be enforced unless the work has been registered.” I thought the law says that the original creator of the work automatically owns the work (unless said otherwise in a contract) and is there for protected?
I also thought that a creator who claims copyright protection owns the work and can enforce that right without registering.
Terrific that you can avoid that error of understanding causing you harm now. Get a copyright registration early. Statutory damages and attorneys fees are among the incentives that the statute is designed to award the proactive copyright claimant.
Me too, I thought so… But if there is no way to say that your publication is prior to this copy… there is a problem ! So the role of the registration.
But in formats that are in themselves some forms of registration (like the web publishing) I think there is no need to register : you are the sole owner of your creation, unless otherwise signified. Here is the usefulness of the CC contracts, if you want your creations to be used or distributed by others, without imposing to them the chore of asking the permission.
This is just the info I needed! Thank you!!
Lamentabiy however pleasing that last paragraph sounds, it simply isn’t true. There are no formats that are ‘in themselves some forms of registration’.
There is a need to register if you want to enforce your work; and if you want attorneys fees and statutory damages. The Creative Commons is magnificent. I completely agree. But the CC is a separate universe from the Copyright Act.
Copyright Registration is needed if you intend or want to enforce the work.
In the U.S., you must have a Federal copyright registration you can sue under the Copyright Act to enforce your rights. So you have rights at the moment of creation, but you cannot enforce them legally until you have a registration.
As I can see here, effectively the situation is different in Canada :
Copyright protection in Canada does not require any marking of the work; however, to obtain maximum international protection it is recommended that the work be marked with the international copyright symbol ©, the date of first publication (or date of creation for an unpublished work) and the name of the copyright owner, thus: “© 1993, Mary Smith” for a published work or “© unpublished, created 1993, Mary Smith” for an unpublished work.
Correct. The United States is the only country that mandates that a copyright registration predate the filing of any enforcement action in court.
If an employee of a non-profit organization creates an article or book while being paid by a government funding source as part of a grant or contract, who really owns the work and copyright?
It is true. There is a mean trick in American copyright law. You are correct that the copyright arises upon fixation, but it is not enforceable unless and until it is registered at the U. S. Copyright Office. Section 411 of the Copyright Act applies.
n June 17, 2009, Judge Laura Taylor Swain of the Southern District of New York dismissed the copyright claims of jeans maker Do Denim against rival manufacturer Fried Denim Inc., holding that the mere filing of the copyright applications, fees and deposits did not satisfy the jurisdictional requirement that a copyright be registered before a lawsuit is initiated. Do Denim v. Fried Denim, No. 08Civ.10947, 2009 U.S. Dist. LEXIS 51512, at *7 (S.D.N.Y. June 17, 2009). This decision highlights the importance of copyright registration, as a jurisdictional prerequisite for plaintiffs hoping to protect their designs.
I understand there are special permissions necessary for "broadcast use"…that is reading something of someone on the air (like a small passage or poem). Any idea where I could find something written about this?
I understand there are special permissions necessary for "broadcast use"…that is reading something of someone on the air (like a small passage or poem). Any idea where I could find something written about this?
Kate, may I have permission to quote you (as written above) in a newsletter article encouraging people to respect copyrights?
This is what I would appreciate being able to use:
A proactive version of the ‘Golden Rule’ applies to copyright: get permission and be clear in advance of who owns what, and give credit generously, as you would have others do unto you.
Kate Spelman is an attorney at Cobalt LLP in Berkeley, California, with a national and international practice in copyright law.
Can you trademark your organization’s name/logo internationally? We are registered in the U.S. as a 501c3 and recently found out someone is in the process of setting an organization in the same name in a different country. We don’t want to confuse donors in other countries when they are being directed to our website (.org) and the new organization has the same nonprofit name as ours (.com).
I totally agree when you said that the staff should be aware of the importance of the board and respect the organization’s work. With that in mind, the nonprofit organization should hire a lawyer to help them lay out the information that they need to relay. It’s to comply as well as ensure that the people in the organization will not be violating any law or regulations in order to push through with their mission.
Our non profit published a book. WE ARE NOW CHANGING OUR NAME AND MISSION, but not our Board, FEIN, or address. Will we still own the copyright?