Consider this common scenario: Your association receives a demand letter from an image-licensing agency stating that a photograph posted on your website was used without permission. The demand is for $5,000 and includes a screenshot showing the unauthorized use. An investigation reveals that an employee found the image online and thought it was available for the taking. Now, you must hire an attorney to resolve the issue or simply pay the legal demand and move on.

You probably take steps to protect your organization’s intellectual property from unauthorized use. But do you also ensure that you do not inadvertently infringe on others’ IP rights? Here is a roadmap for staying out of trouble when using others’ intellectual property.

If You Didn’t Create It, You Might Not Own It

A common misconception is that your association owns and controls all the content or designs created by a paid freelancer. However, under copyright law, the creator or author owns the work and controls how others may use it unless those rights are transferred in writing or the work was created as a “work made for hire.” The work-made-for-hire doctrine applies to works created by an employee within the scope of employment or by an independent contractor who expressly identifies the qualifying commissioned work as “work made for hire” in a written agreement.

If your association does not own the work, you can only use it as licensed by the creator. It is prudent, then, to have a work-made-for-hire template to use with all independent contractors. The template should include this standard wording (or something similar):

This work is considered a work for hire under the 1976 Copyright Act. All intellectual property, including, but not limited to, copyrights, trademarks, creative concepts, artwork, and proprietary information, which is conceived or authored by Employee/Independent Contractor and arises out of the services performed under this agreement (the "Intellectual Property"), whether or not developed for [your association’s name], is and shall remain the exclusive property of [your association’s name].

It is also wise to ensure that all vendor contracts and agreements with volunteer content contributors include similar language granting the association ownership or at least broad rights to use the work as needed.

If your association does not own the work, you can only use it as licensed by the creator. It is prudent, then, to have a work-made-for-hire template to use with all independent contractors.

Not Everything Can Be Protected

Copyright law protects original works of expression fixed in a tangible form, such as books, photographs, computer programs, videos, and musical compositions. Raw data, facts, and ideas are not protectable, unless the author compiles the information creatively or integrates analysis or opinion with the data.

Other works that are unprotected—meaning they can be used for any purpose without permission—are works in the public domain. Public domain works include everything created before 1923, as well as works created by the federal government and its employees. However, content or images appearing on federally owned websites may be protectable if they were created by contractors and assigned to the government. So, proceed cautiously when thinking about snipping content from a federal-government-owned site.

Don’t Be So Quick to Claim Fair Use

“Fair use” is a legal principle under copyright law that allows someone to use a protected work without the owner’s permission in certain limited conditions. These include criticism, comment, news reporting, teaching, scholarship, and research.

Determining whether fair use applies involves a balance of four factors:

• the purpose and character of the unauthorized use (highly transformative works used for a new purpose are more likely to be considered covered by fair use)
• the nature of the copyrighted work (for example, fair use is more likely to apply to nonfiction works than to works of fiction)
• the amount of the work taken and whether that portion was an essential piece of the original work
• the effect of the unauthorized use on the potential market for the original work (for example, fair use is less likely to apply if the original author has a licensing protocol in place that your association ignored)

The fair use doctrine is complicated: Once these legal factors are applied to the facts, the finding of fair use (or not) may boil down to subjective interpretations. When in doubt, do not assume you have a valid fair use defense. Instead, seek permission from the author or creator.

Permission May Already Have Been Granted

If you determine your association needs to seek permission, the terms of use or legal policy on the website where you found the work might state whether the work may be used freely, if at all. Similarly, the work itself might include permissions language or include reference to a Creative Commons license.

Creative Commons is a simplified licensing scheme available to any author for granting rights to others. All Creative Commons licenses grant permission to copy, distribute, and display works for noncommercial purposes, and some go further by granting rights to adapt and modify a work—even commercially.

Get Permission in Writing

If you determine that the content you wish to use is protectable, and fair use does not apply, nor are there any blanket permissions, then you should seek a license from the copyright owner. Copyright law does not require that copyright licenses be solidified in a formal written agreement, but doing so is recommended, especially to ensure no misunderstandings between the parties. A license in any form, whether it is an email or on a napkin, should suffice, as long as the proper language is included.

When seeking permission from a copyright owner, think about the ways your association wishes to use the work. For example:

• On a website and social media pages?
• In a printed brochure?
• Perpetually or for a finite period of time?
• Do you want your members and others to be able to use it?
• How much are you willing to pay to use the content?

These questions and others will ensure that you obtain the broadest license possible, giving you more ways to use someone else’s content permissibly.

It sounds time consuming, but in the long run, knowing when copyrightable works require permission to use, when an exception might apply, and how to go about getting the rights you need will minimize your exposure to unwanted legal claims. Also, it will create a good track record for your association—one that reflects your respect for others’ intellectual property.