Thursday, July 18, 2013

Can Nonprofit Use a Quotation in a Commercial?

John Bartlett -  The man behind the book
Dear Rich: I would like to use a quote in a commercial for a non-for profit institution/hospital. We will not give credit. The copy is something like: "It's been said" and then the quote is used. We're only using 9 words of 11 in quote. We are paraphrasing a bit. Do I have to determine if the "quote" has a copyright and who holds the copyright? Can a "phrase" or "quote" be copyrighted? And finally, how would I go about finding out who holds the copyright. My feeling is that I should be able to use the quote under "fair use" law. I know it is a TV commercial, but it is not for profit and for the betterment and education/information of the community. We answered a similar question about using "No Soup for You" as well as a related question about using movie quotes in a book. Both of those entries establish that short phrases and quotations are not protected by copyright law. (Here's an article we wrote on the subject, too.) Even though you're okay under copyright law, as a general rule we'd urge you not to rely on your theory that you're entitled to claim fair use because your use is for the betterment of the community. Nonprofits may have charitable and educational purposes but they are money-making ventures and in copyright cases, courts usually treat them the same as for-profit entities (You can read more about nonprofits and fair use here.) The exception is that a nonprofit use may be considered when examining the "purpose of the use" factor, one of the four fair use factors (and not determinative by itself).
But wait there's more ... There are two other things to consider: (1) Has the quote been registered as a trademark? (2) Is the quote so closely associated with a living person that by using it you are implying that person's endorsement? As for the first question, you can research the issue at the USPTO. We've prepared an explanation on how to search. The second question is less likely to be a concern as we doubt your use will trigger a right of publicity claim. However, it wouldn't hurt to conduct an informal survey of friends and workers and ask, "What do you think of when you see this ad?" If everybody answers, "Didn't Donald Trump say that?" you may want to regroup, especially if you're running a national campaign that might be seen by The Donald.

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