Saturday, August 7, 2021

Fair Use When Writing Grant Proposals

Dear Rich: Does the reproduction of copyrighted material in a grant proposal constitute fair use? Examples might include a statistical chart from a medical textbook used in a grant application for a hospital or a photograph pasted into an application seeking funds for an exhibit of the artist’s work, or text from a book on homelessness quoted in an application for a shelter. Grant proposals are rarely published and are written on behalf of non-commercial entities (such as charities, schools, and local governments). Some grantmakers, including government agencies, do publish winning proposals on their websites.
Under most of the scenarios you mention, the reproductions would probably constitute fair use. There is no blanket rule for grant-seekers and no cases directly on point. So, each example you mention would be subject to a four-factor analysis by a court. The four factors are:
  • the purpose and character of the use. We think that your examples demonstrate two classic fair use purposes: commentary and research. This factor favors those who transform the material taken from the copyrighted work "by using it for a broadly beneficial purpose different from that of the original."(The Code of Best Practices in Fair Use for Academic and Research Libraries).
  • the nature of the copyrighted work. The examples -- a medical chart, a photograph, a book -- are factual works that have been published, two qualities that favor fair use (unlike imaginative, creative, and fictional works, or unpublished works). Also, fair use is favored when the work (from which the material is taken) is out of print.
  • the amount and substantiality of the portion used. The less you take from the original work, the more this factor favors fair use. This standard is based on the quantity and the quality of what is taken -- that is, are you taking the heart of work? At the same time, how you reproduce the work -- for example, photographs used as thumbnails -- can make it more likely that a court would rule for fair use.
  • the effect of the use upon the potential market. Even though the point of a grant proposal is to receive money, the particular uses described in your examples are to support your arguments for providing a public benefit. In summary, the grant-seeker isn't depriving the copyright owner of sales of the original work (from which the chart, photo, or text is taken).
When proposals are published. You should alert the entity posting the material that you believe certain items are subject to fair use. 
Attenzione! If a copyright owner disagrees with your fair use analysis, they can sue and let a judge decide.

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