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Rights or “Personality Rights”. The scope of this protection varies from state to
state, and the details will not be discussed here. A basic rule of thumb is that a
nonprofit corporation should not use the name, picture or other characteristics that
identifies any living or deceased individual without that individual’s proper consent,
even if such use is not being done for profit. Washington law explicitly states that
an infringement of this right can occur in connection with not-for-profit fundraising
or solicitation of donations. See https://wayfindlegal.org/tools/legal/ for a sample
photo release.

A Word about Fair Use

Some nonprofit corporations mistakenly believe that they have leeway to use
the intellectual property of others without permission because they are not “for-
profit” enterprises. They often think they have a broad “fair use” right that is similar
to the one teachers have in certain situations. This understanding is false, but we
will not go into all the details here. A very basic principle is that there is trademark

fair use and copyright fair use.

In trademark fair use, a nonprofit corporation is permitted to use a
trademark owned by another party if it is necessary to describe the owner’s goods
or services (for example, “we use Microsoft Office software”). However, (i) the
nonprofit corporation may only use so much of the trademark as is necessary to
identify the good or service, (ii) the logos of the owner should not be used, and
(iii) the trademark should not be used in a manner that suggests the owner
endorses or sponsors the nonprofit corporation.

In copyright fair use, there is no hard and fast rule, and each situation must
be analyzed on a case-by-case basis. One must evaluate the purpose of the use,
the nature of the work being used, the amount of the work being used, and the
effect of the use on the potential market for the work. A use of a copyrighted work
without permission is not “fair use” merely because the purpose was to help a
nonprofit corporation. In today’s world, where copyright owners can use internet
bots, web crawlers, and other automated technologies to more easily determine
when their photos, articles, and videos are being used, it is highly recommended
that nonprofits always obtain permission first. Even if the nonprofit may potentially
have a fair use argument, the time and effort it takes to respond to, and argue with,
the copyright owner may not be worth it.

WASHINGTON NONPROFIT HANDBOOK -252- 2018