An attorney answers the most common questions she receives about video copyright.
You found a perfect video clip to highlight the deep spiritual point you wish to make on the platform. People will connect. Lives will be changed. But what is the risk in incorporating it into your message? And what, if anything, can you do to legally play the video clip?
Many people mistakenly believe that if a movie, video, or clip is found on the Internet or YouTube or another public source, using it must be legal. This assumption is false. Movies, commercials, music videos, recordings, and even home videos are all the subject of copyright protection, even if the work is not registered and even if the work does not display a copyright notice. Using any of these works without a license is, generally speaking, a copyright infringement.
Copyright is governed by federal law, and more specifically, the United States Copyright Act. Section 106 of the Copyright Act gives creators a lot of exclusive rights in their works, such as the right to reproduce the work, distribute copies of the work, perform the work, display the work, and prepare derivative works.
A Religious Services Exception?
What about the exception to the Copyright Act for religious services? The Copyright Act does carve out a narrow exception for use of certain works during religious services. Section 110 states that the following activities do not infringe: “performance of a nondramatic 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.” Clearly, this section contains a lot of legalese so what does it mean in plain English? Playing video clips and movies during a religious service does not fall within this exception. The definition of “display” is legally defined as showing “individual images nonsequentially.”
The Copyright Act also does not allow for creation of a “derivative work.” What is a derivative work? To put it simply, it is a work that incorporates someone else’s creative work. For example, a worship pastor may splice together music video clips to play on the screen while people enter the sanctuary. Or a speaker might create a pre-recorded message that incorporates movie clips. Both of these examples involve creating and displaying a derivative work, which is a clear copyright violation.
Fair Use of Copyrighted Work
What about fair use of a copyrighted work? This doctrine is another frequently misunderstood legal principle. Section 107 of the Copyright Act sets forth several factors for analyzing fair use. These factors are highly fact specific. Careful consideration should be taken prior to relying upon this doctrine and anyone who attempts to make fair use of a copyrighted work risks some measure of liability. In fact, many cases involving use of video clips in messages have found such use infringing.
What is the worst that can happen for using a video clip without a license? Legal penalties for copyright infringement are fairly harsh and the reputational harm can be irreversible. Legally speaking, if infringement is found, the copyright owner may seek statutory damages, which range from $750 to $30,000 for each act of infringement. If an infringement is found to be willful, statutory damages may be increased to $150,000, and the court may award costs and attorney fees. In addition, willful infringement of a copyright is a federal crime.
The best way to ensure compliance with copyright laws is to obtain a license from the owner prior to using a movie or video, even if the clip is a small portion of the work. Creating a derivative work without a specific license is always unadvisable. Several reputable blanket licensing companies exist that make licensing easy for religious organizations. For example, Christian Video Licensing International (CVLI) provides hundreds of movies and clips for use at rates based on congregational size. If works and uses are not covered under blanket licensing and must be licensed individually, this may be accomplished by contacting the copyright owner.
The bottom line is that using a video without a license could jeopardize your ministry and reputation. Pastors, worship leaders, and creative ministry workers can reap the benefits of others’ works but should “play it safe” by obtaining appropriate licensing.
For more information on copyright for churches, see these resources:
Jenna Rader is a Crowe & Dunlevy attorney and member of the firm’s Intellectual Property Practice Group. She previously served as general counsel for one of the largest and fastest growing religious organizations in the United States.