SIDEBAR Getting Permission
by William T. McGrath
Copyright law is annoying. Copyright law is complicated. Copyright law is controlled by special-interest groups. Copyright law restricts the free flow of information and inhibits free expression.
To some extent, all of these sentiments are true. The copyright law is not perfect. Some parts are extremely complicated; other parts are downright incomprehensible. Gray areas abound. Some provisions arguably give the copyright owner too much control.
Of course, there is another side to the issue. Without copyright, the creation and dissemination of works of authorship will be diminished. While the primary purpose of the copyright law is to foster the creation of works, the means to achieve that goal is to provide economic incentive to create and distribute works. As the Supreme Court recognized in a 1954 case, “the economic philosophy behind … copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors” Mazer v. Stein, 347 U.S. 201 (1954). More simply, if you want music, you have to pay the piper.
We need to achieve a delicate balance in copyright laws. Overprotection can inhibit widespread dissemination just as underprotection can diminish the incentive to create new works. Since the first U.S. Copyright Act in 1790, Congress has been attempting to strike this balance, accommodating the interests of creators, disseminators (such as publishing and recording companies), and users of copyrighted works.
The purpose of this article is not to join the never-ending debate about whether Congress is achieving a proper balance, but rather it is to take a practical look at the Copyright Act as it currently stands and to provide guidance to ministers facing copyright issues. By explaining some of the basic principles of copyright law and pointing out some of the key provisions of the statute, our goal is to help ministers understand when the activities of a church give rise to copyright issues and how to best address those issues. And in case you need an incentive to keep reading, here is a cautionary note: The copyright law is a “strict liability” law; that is, the fact you did not know you were infringing someone’s copyright is not a defense. “Innocent infringement” is infringement nonetheless. Here is a second cautionary note: There are no blanket exemptions for churches or other nonprofit organizations. Churches, schools, and charitable organizations can be held liable for copyright infringement if they copy or publicly perform a copyrighted work without permission or without qualifying for one of the specific exemptions provided by the Copyright Act.
The consequences of copyright infringement can be costly, even if the infringement is in a noncommercial context. This is particularly true where someone infringes on multiple works. A court or jury can award from $750 up to $30,000 per work for each work infringed; and, if the court finds that the infringement was done “willfully,” it can increase the award up to as much as $150,000 per work.
In a recent case, a jury in Minnesota issued a verdict of $1.9 million against a woman who illegally downloaded 24 songs. The jury found willful infringement and assessed damages of $80,000 per song. While that case is admittedly extreme, it illustrates the point that one cannot treat the copyright laws lightly.
Damages in a nonprofit setting can likewise be substantial. In 1976, the court held some priests liable for over $60,000 in damages for unauthorized public performances of songs from Jesus Christ Superstar and another work Robert Stigwood Group v. O’Reilly, 530 F.2d 1096 (2d Cir. 1976). A church that abuses the copyrights of a music publisher by unlawfully copying sheet music for hundreds of songs can face tremendous potential liability.
There is an ethical dimension as well. Violating another’s copyright, whether intentionally or through “willful blindness,” puts a congregation’s financial resources at risk. It also fails to honor the creativity of others.
The Exclusive Rights of a Copyright Owner
Copyright provides an array of rights to a copyright owner for all types of works of authorship, such as literary works, movies, music, recordings, photographs, illustrations and other pictorial works, and computer software.
The copyright owner’s economic power lies in the exclusive rights provided by the law. The owner has the exclusive right to reproduce, distribute, modify, publicly perform, and publicly display a work. Generally speaking, no one can engage in any of those acts without the copyright owner’s permission.
These exclusive rights, however, are not absolute. Congress has filled the Copyright Act with exceptions and limitations on these exclusive rights (a reflection of Congress’ attempt to achieve the delicate balance). We will discuss three of the limitations that are particularly important for churches.
The most common copyright issues confronting churches involve reproduction rights. The church is implicated any time it makes copies of a work, and the public performance right, which is implicated when a church plays or shows a musical or audiovisual work to its congregation or other public group. For example, making multiple photocopies of an entire hymnal to avoid buying additional copies for a growing congregation infringes the copyright in the hymnal. Reproducing a copyrighted photograph in a church publication without permission infringes on the photographer’s copyright.
To perform music without a proper license at a large fundraiser for the church infringes on the composer’s public performance right. Incorporating photos, text, music, or videos from the Internet into your own Web site can be very risky business. To show movies every Friday night at a teen club in the church basement without permission violates the copyright in the movie. Broadcasting or Webcasting a religious service containing copyrighted music without a proper license is a problem.
A choir that records and sells a CD containing copyrighted music without a license is also violating the copyright laws. A church that buys one copy of MS Word software and then makes 10 copies for other computers without a license is violating Microsoft’s copyright in the computer program. The possibilities are endless. A church must carefully analyze any activity that involves the creation of multiple copies of a work or the public performance of music or movies, and seek legal guidance if a clear answer is not obvious.
The Limited Exemption for Public Performance of Certain Works During Religious Services
The Copyright Act contains a limited exemption that permits the public performance of certain works during a religious service. This exemption, which is very specific and quite narrow, is in §110(3) of the Act. It states that it is not an infringement of copyright to perform:
1) a nondramatic literary work, or
2) a musical work, or
3) a “dramatico-musical work of a religious nature,” so long as the work is performed
4) in the course of services, and
5) at a place of worship or other religious assembly.
Unless all these conditions are present, the exemption does not apply. The exemption also allows the “display” of any type of copyrighted work during such services. This includes, for example, the projection of a properly acquired image or text to the congregation during the service, such as displaying a purchased copy of sheet music with lyrics on an overhead projector. (In copyright terminology, showing a movie is a “performance,” not a “display,” and this exemption does not give a church permission to show movies.)
The main purpose of this exemption is to permit the performance (or display) of music or readings at church services. This allows the playing or singing of music during services without getting any permission from the copyright owner. It allows the playing of music from a tape or CD. It allows a minister or member of a congregation to read a literary work such as a poem, essay, reflection, or even material from a novel to the congregation during a service. And for more adventurous congregations, it allows the performance of works such as oratorios or cantatas so long as they are religious. While the performance must be during the course of a religious service at a place of worship, the reference to “or other religious assembly” would appear to cover unusual situations such as a religious service at Yankee Stadium or Grant Park in Chicago. (Both of which have in fact occurred.)
It is also important to realize what this exemption does not cover. The exemption does not apply to services that churches broadcast over radio or television. A church is not permitted to record or film a service in which it performs copyrighted music. It does not authorize showing a movie or other audiovisual work at a church service, because the exemption for performances only covers literary and musical works, not audiovisual works. (Note, however, that showing a short movie clip as part of a sermon might be fair use, as discussed below.) Nothing in the exemption allows a church to copy or reproduce works. It only allows performance and display.
The requirement that the performance must take place “in the course of services” indicates that the exemption does not apply to performances that are for social, educational, fund-raising, or entertainment purposes rather than as part of a religious ritual. Such performances, however, might qualify for a different limited exemption for certain nonprofit performances, as discussed in the next section.
The Limited Exemption for Certain Nonprofit Public Performances
As noted above, there is no general exemption that immunizes all nonprofit organizations from copyright infringement. But there is another narrow exemption that allows certain public performances of copyrighted works, even when used outside a religious service. This exemption is in §110(4) of the Copyright Act and can be useful to churches as long as the church meets a plethora of conditions. The exemption states that it is not an infringement of copyright to perform:
1) a nondramatic literary work, or
2) a musical work, that is
3) without any purpose of direct or indirect commercial advantage, and
4) the performers or organizers are not paid for the performance, and
5) the performance is not transmitted to another place (e.g., by broadcast or Internet transmission), and
6A) there is no direct or indirect admission charge, or
6B) if there is an admission charge, the proceeds, after deducting reasonable costs, are used exclusively for educational, religious, or charitable purposes, and the copyright owner has not previously objected to the performance.
While these conditions seem daunting, churches can apply this exemption to many church fund-raisers or social events where they perform music live or play from recordings. For example, this will allow the church to perform live or recorded music at a church event to raise funds for a local food pantry or homeless shelter. The obvious intention of these conditions is to make sure that an organization does not make free use of copyrighted material under the guise of charity where fees are paid to performers, promoters, producers, and the like. (This will not prevent, however, a salaried music director from participating in a performance since the director is not being paid “for the performance.”)
Again, it is important to note that this exemption applies only to performances, and does not allow any copying, reproduction, or display of works. It does not allow performance of movies or dramatic works such as a school play.
In addition to these specific exemptions, there is another doctrine of copyright law that permits certain uses of copyrighted works without permission of the copyright holder. This is the doctrine of “fair use,” a venerable doctrine of copyright law now embodied in §107 of the statute. The fair use doctrine is designed to avoid the overly rigid application of the copyright laws so some uses can be made without permission where the use is reasonable and advances the public benefit, but does not substantially impair the economic value of the work.
Unlike the specific exemptions discussed above, the fair use doctrine is intentionally vague. As the Supreme Court has noted in a leading case about fair use, there are no “bright-line rules.” There is no definition of fair use in the Copyright Act; rather, the statute provides as guidance some illustrative examples of types of use that might be fair (such as criticism, comment, news reporting, teaching, and research) and four “factors” that must be considered. These are: 1) the purpose and character of the use (i.e., is it commercial or nonprofit? is it transformative or is it very similar to the intended use of the original?), 2) the nature of the work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the market for or value of the copyrighted work. No single factor is determinative — “all are to be explored, and the results weighed together, in light of the purposes of copyright” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Thus, copying even an entire work might be a fair use if it is completely noncommercial such as recording a TV show to watch at home later. Yet, copying even a small amount might not be a fair use if the material copied constitutes the heart of the work and the unauthorized use would harm the sales of the original work. For example, in a well-known case from 1985, the Supreme Court found that a magazine article that copied a passage of approximately 300 words from President Gerald Ford’s soon-to-be-published memoir was not a fair use because it “scooped” the publication and the portion copied was the most eagerly awaited part of the book — Ford’s discussion of his pardon of Richard Nixon. The Court characterized this as “the heart of the book” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
It is difficult to know whether any given use of a copyrighted work without permission might be a fair use and thus not copyright infringement. So this is definitely an area where it is prudent to consult with legal counsel. Suffice it to say, if a use involves a relatively small amount of the copyrighted work, is used for a beneficial purpose (e.g. to illustrate a point in a sermon), and is not made for the purpose of circumventing customary fees or payments, it might be a fair use. But it is treacherous to rely on this doctrine where the reasonableness of the use and the lack of economic impact are not immediately apparent. Every fair use determination is dependent on the specific facts, and generalizations are not helpful.
Material not protected by copyright is said to be in the “public domain.” Facts and ideas are not protected by copyright and are free for anyone to use without permission. (Beware: a “compilation” of factual information might be protected by copyright even though individual facts are not. Thus, while a church can freely copy sheet music for a single public domain song, a publisher could claim copyright in a hymnal consisting of a compilation of 100 carefully selected public domain hymns and it would infringe the publisher’s copyright to copy the entire compilation.) Individual words and short phrases are not protected by copyright. Process systems and methods of operation are likewise not within the realm of copyright.
An important category of public domain works is works whose copyright is expired. Knowing whether a work is still under copyright can be a very complicated analysis, so a church should normally consult copyright counsel. But there is one rule that can always be relied on: if a work was published in the United States before 1923, its copyright is expired and it is in the public domain. So a church can safely reproduce, modify, perform, or disseminate old texts, images, or music with a copyright notice of 1922 or earlier that were published in the U.S. Another cautionary note: You cannot assume that a work is in the public domain simply because it does not have a copyright notice. The copyright law changed 20 years ago to eliminate the requirement of putting a copyright notice on published works.
With the myriad activities that take place at a church each day, tending to copyright issues may not be high on a pastor’s to-do list. The fact remains, however, that churches make frequent use of copyrighted material. To ignore the rights of copyright owners when using their materials is to risk not only embarrassment, but also potentially significant financial loss. Familiarity with the copyright principles discussed above can help churches understand when use of a work implicates a copyright owner’s exclusive rights. With a thorough review of it typical uses of music, audiovisual materials, literary works, and computer software, a church can set up procedures that can limit its exposure to copyright liability and ensure that the church is acting in a prudent and ethical manner. Sometimes the answers are simple (Q: We need a 1,000 more copies of this newly published hymnal. Can we simply make photocopies? A: No.) Other questions are more complicated and may involve arcane issues or grey areas of the copyright law. For these, it is important to consult with copyright counsel. Having an increased awareness of copyright as it affects churches will provide pastors and administrators a good start on developing a set of best practices is this area.