Is Your Church Infringing on Copyright?

In Uncategorized by tfwm

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the right to exclude others from doing the following:

1. To reproduce the work in copies or phonorecords (in this case, phonorecords refers to objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are embedded or stored upon);

2. To prepare derivative works based upon the work (i.e., a work “derived” from the original work – for example, if the original work is a book, a derivative works could include books on tape or a movie based on the book); 3. To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4. To perform the work publicly, in the case of literary musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works;

5. To display the copyrighted work publicly, in the case of literary, musical dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

6. In the case of sound recordings, to perform the work publicly by means of digital audio transmission. As we progress with multimedia ministries and use these technologies in worship, the topic of copyright infringement has become a growing concern. For example, can an edited clip of a movie be used as a sermon illustration and not violate the copyright laws?

This can be a difficult question to answer because the copyright laws are not always clear to those who don’t work with them on a daily basis. Using copyrighted material in one instance may be acceptable, but an infringement in a different instance. The determination of whether a particular act or instance rises to the level of infringement does not fit into a well-defined and easily applied formula.

Recently, we have seen some confusion due to new additions to the law. We have seen several changes starting in 1998, due largely because the copyright laws needed to address the advances that we saw with digital technology and the Internet. All of these changes make it a bit more difficult for lay-people to keep up. Therefore, many look to Christian organizations to help them. Perhaps the most prominent of these organizations are CCLI and CLVI, which sell licenses to allow churches and other organizations to use copyrighted materials in their worship services. Organizations of this type unquestionably provide useful services to the media ministries. Unfortunately, these organizations do little to educate organizations in regard to the underlying copyright issues, and often churches are led to purchase licenses when they may not be needed. Further still, many churches incorrectly believe that if they indeed purchase such a license, it will provide some sort of blanket immunity with respect to copyright issues.

For example, CCLI’s Web site (www.ccli.com) states “Now there’s any easy and affordable solution for churches which reproduce songs… or would like to”, and “Record your worship service on tape.” as some of the features of the license. These headlines can add to the confusion of what is really being covered under this license. If you would go to CVLI’s web site (www.cvli.org) one could easily assume that a church cannot use any video without their license.

Notwithstanding CCLI’s and CVLI’s strong push to encourage churches to purchase copyright licenses, churches should understand that there are many legitimate uses of copyrighted materials that do not require a license. For the sake of brevity in this article, and due to the complicated nature of the copyright laws and the many different situations in which copyright issues can arise, this article merely provides an approach for analyzing such copyrighted materials.

It is our hope that the examples and discussions set forth herein provide a useful framework for evaluating potential copyright issues for worship leaders and other church-service planners.

As summarized above, the copyright laws in the United States were promulgated to provide protections for artistic expressions of all sorts. These expressions include art, literary works, dramas or dramatic works, sound recordings or other musical expressions, motion pictures, etc. The mere act of creating such a work or artistic expression gives rise to a certain level of protection, even without registration of the work with the U.S. Copyright Office.

The U.S. copyright laws are set forth in Title 17 of the United States Code. In addition to the protections that are established for the artists and their artistic works, the copyright laws also define certain exceptions. Most notable among these exceptions is what is known as the “fair use” exception. This exception will be discussed in more detail later in this article, but generally the fair use exception recognizes that there are certain fair, or legitimate, uses of copyrighted materials, and that such uses do not constitute infringement of the copyrights. The evaluation of the use or uses of copyrighted materials in the course of a church service will generally be evaluated under the standards of the fair use exception (also referred to as the fair use doctrine).

However, before addressing that doctrine in detail, we first address a more specific provision of the copyright laws that specifically exempts the performance or displays of certain copyrighted materials and the context of a worship service. Specifically, Section 110 of the copyright laws provides, in part:

110. Limitations on exclusive rights: Exemption of certain performances and displays Notwithstanding the provisions of section 106, the following are not infringements of copyright: (3) performance of a non-dramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly; (Emphasis added.)

Some have construed this provision of the copyright laws as providing blanket protection for churches and other religious assemblies to any and all uses of copyrighted materials in the context of worship services. Unfortunately, such a broad-sweeping view is seriously misplaced, as the exemption provided by Section 110 is actually rather narrow in scope. To break this section down into more readable components, Section 110 of the Copyright Act exempts (i.e., excludes from infringement) the following:

(1) The “performance” of a non-dramatic or musical work of a religious nature in the course of services in a place of worship;

(2) The “performance” of a dramatical-musical work of a religious nature in the course of services in a place of worship; and

(3) The “display” of a work in the course of services at a place of worship.
It is important to denote the distinction between the terms “performance” and “display.” Significantly, the scope of this provision of the copyright law does not cover the sequential showing of motion pictures or other audio-video works. To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or other device or process. This means that the projection of images from a motion picture or other audio-visual work may constitute a display. It may also constitute a performance of such a work. The performance of a motion picture or other audio-visual work requires showing its images in any sequence. If the images are not shown in sequence, then there is no performance, but there is a display. The display right has, therefore, been limited to the individual images of a motion picture or other audio-visual work. The only “performances” that are exempted in Section 110 of the Copyright Act are performances of a religious nature. With regard to matters of a general or non-religious subject, only the “display” of such works are exempted by Section 110.

While this provides only a relatively narrow exception, it is important to understand that the purpose of Section 110 is to exempt certain performances of sacred music that might be regard as “dramatic” in nature, such as oratories, cantatas, musical settings of the mass, choral services, and the like. The exemption is not intended to cover performances of secular operas, musical plays, motion pictures, and the like even if they have an underline religious or philosophical theme.

In addition to the above-described limitations of Section 110, it is important to recognize that the exemption of this section only applies to performances and displays that take place “in the course of services” which excludes activities at a place of worship that are for social, educational, fund-raising, or entertainment purposes. In addition, the performance or display of the work must also occur “at a place of worship or other religious assembly.” Therefore, the exemption does not extend to religious broadcast or other transmissions to the public at large, even where the transmissions were sent from the place of worship.

Having dispelled the often-misconstrued exemption provided by Section 110 of the Copyright Act, we will now address the fair use doctrine, and we will explore certain legitimate uses of copyrighted materials in the context of church or other worship services. The fair use exception is set forth in Section 107 of the Copyright Act, and it specifically provides that copyrighted materials may be copied or otherwise used “for purposes of criticism, comment, news reporting, teaching, scholarship, or research.” To determine whether a particular use of the work in any particular situation is a fair use, Section 107 of the Copyright Act further sets forth the following factors that are to be considered:

(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 purpose of the fair use doctrine is to avoid rigid application of the copyright statute, when such an application would stifle the very creativity that copyright laws are designed to foster. Basically, the fair use Doctrine creates a limited privilege to allow people, other than the owner of the copyright, to use the copyrighted material in a reasonable manner without the owner’s consent. The application of the fair use Doctrine involves a balancing between the need to provide an individual sufficient incentives to create public works with the public’s interest in dissemination of information.

As set forth above, the first factor in considering fair use is the purpose and character of the use. In this regard, one must look at the purpose and character of the alleged infringing use, including its commercial or non-profit educational motive. A significant component of this factor is the commercial nature or commercial impact of the use. For example, teachers often copy at least portions of copyrighted works to use in a classroom setting for purposes of teaching or scholarly debate. To make a single copy of a copyrighted material and to present that copy, for example on an overhead display, is generally considered to be a fair use of the work. However, when multiple copies are made to distribute to a classroom at large, a greater level of scrutiny is applied. In the context of a church or worship service, there is seldom, if ever, a commercial nature attributable to the use of copyrighted material. Even though an offering or collection is normally taken during the context of a church service, churches are non-profit organizations, and the monetary collection is typically made for the purposes of supporting the operation of the church, and not in connection with the display or performance of a copyrighted work. A different evaluation would be made if, for example, a church or other religious assembly charged admission for the sole purpose for viewing a copyrighted motion picture.

The second factor relates to the nature of the copyrighted work. This factor evaluates where the nature of the work falls in the spectrum of fact to fiction to fantasy. Where the original work is of a factual nature, rather than fictional, the scope of the fair use Doctrine is broader. In this regard, it is well recognized that facts are not subject to copyright protection. However, a particular organization or expression of facts are protectable. This distinction allows organizations to copyright newspapers or news broadcasts, but not the underlined facts reported in the news articles or segments. Therefore, the fair use provision allows informational works to be more freely published than works of a more creative nature. This factor helps promote the public interest in the dissemination of information, while protecting the creative expressions of artists.

The third factor involves the amount of the copyrighted material that is copied. In applying this factor, courts consider both the amount and substantiality of the portion used or copied in relation to the copyrighted work as a whole. This comparison is made by comparing the copied portions with the copyrighted work, as opposed to the copied portions in comparison to the alleged infringing work as a whole. In short, the greater the amount of the copyright work that is used, the less likely it is that the fair use exception will be applicable. However, the “substantiality” element of this exception may act to prevent the copying of even small quantitative portions of a copyrighted work, if the copied portion is considered to capture the heart or essence of the copyrighted work. As an example, one court found that the copying of tables from a copyrighted book on Medicaid planning was not fair use, where the tables were found to be “the heart” of the copyrighted book, and the use of these tables made the allegedly infringing book more competitive for potential customers.

The fourth and final part of the fair use defense considers the effect that the allegedly infringing use has on the potential market for, or value of, the copyrighted work. Courts have frequently identified this as the most important element of a fair use analysis. In this regard, the use or copying of a copyrighted work must not materially impair the marketability of the copied works. Therefore, if a person’s use would tend to diminish the sales of a copyrighted work, such a use will violate the fourth factor of the fair use exception.

Having summarized the four factors relevant to the fair use determination, we will now consider the presentation of copyrighted videos and video segments in the course of a worship service. A simple illustration will be the use of only a portion of a copyrighted motion picture or other audio-visual work as a sermon illustration. As previously mentioned, the use of a portion of a copyrighted work in the context of a conventional worship service would not be deemed of a commercial nature, and therefore would not satisfy the first factor of the fair use Doctrine. With regard to the fourth factor, the use of a video or video segment as a sermon illustration would likely have no impact upon the potential market or value for the copyrighted work. Accordingly, the fourth factor would favor a finding of fair use.

Of course, the second and third factors may vary from situation to situation, depending upon the nature of the work and the amount of the work that is shown as a sermon illustration. However, in almost all cases (if not all cases) the overall conclusion for the use of a portion of a copyrighted motion picture or audio-visual work in the context of a sermon illustration would lead to a finding of fair use under the provisions of the Copyright Act.

CONCLUSION
We recognize that there is no absolute formula or Litmus test for determining whether a particular use of a copyrighted work amounts to an infringement of the work or falls under the fair use exception. For specific questions, we recommend consultation with a copyright lawyer. However, we hope that the examples and discussions presented in this article provide a useful framework for at least making certain basic evaluations as to legitimate uses of copyrighted works, in the course or context of a worship service.