Four factors must be considered in determining the fair use of copyrighted materials. The actual use of the copyrighted work -- whether it is of a commercial nature or for nonprofit educational purposes -- determines the intent of the user. The nature of the copyrighted work and the amount of the material actually used -- compared to the whole work -- shows the user's intent to subvert the owner's lawful copyright protection. Ultimately, the creator's future marketing potential for the work needs to be evaluated.
Purpose and Character
Fair use of copyrighted material by a nonprofit organization, such as a church, is favored over use of the same material by a commercial organization. Seven appropriate circumstances are listed in the fair use statute: criticism, comment, news reporting, teaching, scholarship or research. Using a copyrighted photo in a sermon to demonstrate a point or to educate the congregation may fall into one of these seven purposes. Several court opinions have favored the concept of a copyrighted work being "transformed," such as using a photograph as part of a presentation, media event, montage or collage.
Nature of Copyrighted Material
Original, creative works are generally less available for fair use. If a novel has yet to be published, or a film is not yet released, courts may tend to give greater protection to the owner of the copyright, since the creator should have the discretion as to when and where to release his work. Because creative works are more protected, fair use may be better applied to nonfiction and copyrighted works with limited original creativity, such as media, advertising or promotional photos.
The Portion Used
The fair use statute does not set any type of quantity for how much is too much of the whole work to be used. The portion is relative to the length of the entire work. Another factor is the importance of the material used to the work as a whole. Photos, in particular, could be a problem, since, in general, the whole work needs to be used to be effective. Because the photo would be used as part of the sermon, a cropped version of the photo may be used or one of lower resolution.
Effect on Future Value
Assuming the public user lawfully owns his copy of the work, such as a picture, using it in connection with a sermon probably would not have a negative economic effect on the copyright owner. However, if use of the protected work could reduce sales of the original, this might significantly impair the owner's potential marketing of the original work. For example, if a picture used in connection with a sermon were reproduced and distributed to church members, the copyright owner might lose sales revenue from those in attendance, who might have bought a copy of the work instead.