Question - If I want to use a copyrighted item but do not plan to make any money, is it still infringement? What about if I am giving the item away?
Answer - I've seen these questions asked quite a bit - quite a few people believe that if they are not receiving a monetary benefit from whatever action they are taking related to copyright then that it means it is o.k. This feels intuitive. You are not necessarily benefitting from using the item and, theoretically, you are not taking money away from the copyright owner. But, when it comes to the bare question of whether copyright infringement has taken place, whether money has been exchanged is largely irrelevant; you can violate copyright either way. [But...Note] Let's take a look at why.
The Exclusive Rights are...Exclusive
At its core, copyright is a bundle of exclusive rights. Exclusive means just that. With limited exceptions, the owner of the copyright is the only one authorized to copy the work, make derivatives from it, display it, perform it and distribute it. If the use would otherwise violate copyright (i.e. no defenses such as fair use or the first sale doctrine apply), it doesn't really matter whether money has been made or not. It is the theft of the intellectual property that matters most not whether it was ultimately financially beneficial. Let's look at some examples.
Example 1
Let's say that a theatre troupe decided to take several episodes of the The Office, change them up a bit for the stage and perform them live. People were invited to view the performance but the troupe did not charge any money for the tickets.
In this scenario, the troupe adapted the work without permission and they performed the work without permission. None of these infractions involve money and the fact that no money was exchanged doesn't change that there were copyright violations.
Example 2
A blogger finds an amazing young singer online and decides to promote that singer's song on their blog. The blog is not monetized and the blogger believes they are doing the singer a favor by spreading the word about them.
Here, the blogger reproduced the song without permission and also performed it without permission (playing music is classified as "performance" in the Copyright Act). Despite the good intentions and the lack of monetization, the blogger has likely run afoul of the Copyright Act.
Example 3
A Walt Disney enthusiast, let's call her Sam, decides to design and screen print 150 t-shirts for the members of her Disney Vacation Club. The t-shirts have a picture of Mickey Mouse and say "I (heart) Disney" on the front. Sam is making these out of the kindness of her heart and charges no money for them.
Despite the free price tag, the Mouse could still come after Sam as she has reproduced Mickey without permission and is distributing that image to the public without permission. The exclusive right to distribute copies of a work includes the right to sell, lend, lease and give them away.
The Takeaway for Crafters
Making money off of someone else's work probably makes it more likely that you end up on that person's radar. But, it is not the making of the money that infringes copyright. In all of the above examples, although there is no money changing hands, the actions likely still violate the Copyright Act. While having a copyright allows one to exploit their own work in a variety of ways, exploitation is not always monetary. Do not make the mistake of thinking that, because you are not accepting payment that you are not stepping on a copyright owner's toes.
[Note] This whole analysis assumes that fair use does not apply. One of the four prongs of the fair use test looks at whether a use is commercial or not. This prong is not dispositive but it is something that must be considered for that test. Since fair use is not infringement, if your situation may qualify for fair use, then this blog post does not apply!
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