“Get Out of Infringement Free” Card?

by Steve Reiss (stevenreiss@scienbizippc.com)

AVVO Questioners often give the impression they believe because they are acting as a "nonprofit", or are just not making any profit, they have a “get out of infringement free” card. This belief is invalid.

1. Other Avvo Contributors Agree

In one Q&A thread, I joked that when signing up for AVVO, people should see a big flashing disclaimer saying "THAT YOU ARE NOT MAKING A PROFIT DOES NOT SHIELD YOU FROM MOST LAWS". This joke received several “agrees” from other AVVO contributors.

2.Example

One questioner described how he placed a well-known college's logo on a beach towel for his own enjoyment. However, when friends saw the towel, they asked him to make them similar towels, which he offered to do at no cost. The Questioner resisted the opinions of the AVVO contributors saying this unauthorized use of the logo would still be infringement.

3. Another Example

Another Questioner asked if he set up an educational nonprofit, could he use copyrighted materials without fear of liability, relying especially on the "fair use" rules of the Copyright Act. Here, the Questioner resisted AVVO contributors’ opinions that "monetary gain" is only one factor in the fair use analysis.  While the “monetary gain” fair use factor may be in the Questioner's favor, the use of the entire copyrighted material would was not in his favor.

4. Yet Another Example

Questioner has a "no advertisement", "no fee" travel blog, with fewer than 10 posts a year and 2-3 visits a day. However, he received a demand letter for $275 when caught using "a copyrighted image" from Google Search. The Questioner took the picture down.  However, Google still asked for money, though now only $27.50. The Questioner urged us to tell him that his token use should not subject him to damages.  The AVVO responders did not give the wanted answer.

5. Still Another Example?

Questioner asked if it was lawful to show copyrighted movies to a nonprofit movie club in a retirement community ballroom. The answer to this question was an easy "no". Showing the entire copyrighted work would negatively impact on the market for the protected work (fewer sale or ticket fees).

6. Boy, there really are a lot of Examples.

Questioners ask about potential for patent infringement liability when no money is made. However, patent infringement is sometimes referred to as a strict liability tort.  Lacking actual damages, a "reasonable royalty" is still available to the patentee.

7. And We Close it Out With One Final Example

Questioner asks whether it is lawful to use the marks of "nonprofit" organizations, such as mascots for state university athletic programs. State Universities may indeed be nonprofit.  However, universities will not allow others to profit from university intellectual property. Further, while the state university may be nonprofit, it may still receive large revenue through the sale of trademarked goods.