The Supreme has stated that "since the [fair use] doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts." Harper & Row v. Nation Enterprises (US 1985)
Andrew SkinnerLopata      Message #3381023

Copyright: Fair Use

From 17 U.S.C. § 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
   The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Discussion: Is use of a church logo allowable in a Wikipedia article?
Talk:Lutheran Church - Missouri Synod is an archived copy of wikipedia contributors' discussion on the issue

Comments below are excerpted and edited from multiple emails in a discussion held online from Oct2-6, 2006 in the CNI-COPYRIGHT (Coalition for Networked Information) forum.  NCI-Copyright's full archive is online at: https://mail2.cni.org/Lists/CNI-COPYRIGHT/List.html

Educational Use

My analysis for the first factor was Wikipedia is not entitled to claim educational use, since it is not an accredited institution of learning. It is also not a commercial enterprise, nor is its purpose commerce. (although some entities are downloading and putting their articles for sale on CD-ROMs). There is no discussion of the logo on the LCMS page itself, although there is on the image information page. I wasn't sure if simply putting the image in a new context (which seems to be the purpose for the image to start with) would be seen as transformative. So I was unsure which way this factor would fall, so I deemed it neutral.

For factor two, I see the logo as a work of graphic art and thus the factor weighing against fair use.

For factor three, I see the logo being used in its entirety, and thus weighing against fair use.

For factor four, since the image is given away free, I do not see an effect on the market. So this factor would tend to support fair use.

Smith, Robert E.                Message #3381017

Purpose of Educational Use

The first factor is not educational v. commercial. Rather, it is "the purpose and character of the use." That is what you need to analyze and decide which way it cuts. Commercial or nonprofit educational use are just two examples of common types of uses mentioned explicitly but do not exclude other sorts of uses. Transformative use matters, but again, is only an example of a type of use that affects the analysis of fair use. Also, your narrowing of the educational purpose example is mistaken. The nature of the institution is a factor in assessing the nature of the use, but one need not be an accredited institution of education for the use to be educational. I can use something to teach others, but I am not an educational institution of any sort.

The wikipedia article is educational. The wikipedia itself is educational. The inclusion of the symbol is educational (it teaches the reader how to recognize this sect by their symbol by showing the symbol). It is not commercial use -- it is not being used for advertising or any other commercial use.

More could be said, but in general, I think this factor is far from neutral, but rather quite clearly cuts in favor of it being fair use.

As to the second factor, the fact that work is graphic in nature isn't really the point of the nature of the copyrighted work factor. It is graphic. But it is also informational by nature (not purely decorative). And it is a trademark, probably even a registered one. Furthermore, it is not a particularly original work -- it is just a pedestrian "t" shape or cross shape with some special features (color, three lines for the trinity (I assume), and some other artistic aspects). So, though it probably could get a copyright, it is on the edge of copyrightability. The nature also includes the function of the work. Since it is used to identify the sect, it is more functional than artistic and thus further away from the core of protected works of copyright. And the wiki use of it is just the same as the lutheran sect's use -- to identify. So again, your analysis on the second factor is seriously underdeveloped.

Third factor: wiki used the whole thing -- but the nature of the work and of the use require that the whole thing be used. So wiki used only so much as it had to use to accomplish its intended use. so this factor doesn't count for much.

Fourth: clearly no effect on the potential market or value of the work. This cuts strongly in favor of Wiki.

Steve Jamar          Message #3381020

Church as a Commercial Entity

Since a church does not in general engage in commerce, it's hard to see how they could ever trademark their logo other than for ancillary uses on coffee mugs and the like.
John Levine         Message #3381009

Churches' use of trademarks and logos are most certainly considered commerce!  The Trademark Act defines the word "commerce" as "all commerce which may lawfully be regulated by Congress" (yes, it is a circular definition, but I didn't write the Act).  Churches can and do register trademarks all the time, typically for "evangelistic and ministerial services," "counseling," or "educational services."  If commerce meant only for-profit commerce, then nonprofits could never protect their names, which is certainly not the case.
Kenneth Liu                Message #3381015

Intention in Usage

I use Coca Cola logo in a wikipedia article about soda (history, how they are made, distributed......) nothing to worry

I use Coca Cola logo in an article about obesity, sugar overdose, ..... then it is likely that Coca Cola will not accept this as fair use!!

Alain Minodier                 Message #338101

The first factor is much more than a distinction between commercial and educational use. It goes to whether the use is transformative, i.e. whether it puts the protected work to a new and different use, including commercial news, commentary, and even satire for money. I can't figure out from the discussion at wikpedia exactly what they want to do with it, but if, for instance, they were building a database of marks that are protected by copyright rather than trademark registration -- supplementing the PTO's online access to registered trademarks -- that would be a transformative and valuable use that would not interfere with the Church's use, cause customer confusion, or dilute the commercial value of the mark.
John Noble                 Message #3381014

If this case ever gets litigated, I hope a judge reflects on what the world would be like if The New York Times, or the local TV news, or even a high school newspaper, could not use the logo of Chevrolet or Coca-Cola in a commentary on the company.
Richard Wiggens                Message #3381013

Wikipedia posting constitute trademark use?

With regard to trademark infringement, I think that one might never get to the issue of trademark fair use because simply posting someone's logo on Wikipedia probably doesn't constitute "trademark use," and can't serve as a basis for infringement. One of the first inquiries in any trademark case is "whether defendants are using the challenged mark in a way that identifies the source of their goods." Interactive Prods. Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687, 695 (6th Cir. 2003). If the defendants are using the trademark only "in a 'non-trademark' way--that is, in a way that does not identify the source of a product -- then trademark infringement and false designation of origin laws do not apply." Id. I suppose that if the Lutheran mark were "famous," there could be a claim under the Federal Trademark Dilution Act. However, I doubt that the mark has sufficient "fame" for that.

Shawn Sullivan                Message #3381008