This chapter will summarize the two leading cases addressing the application of copyright law to the church. While both cases were decided under the copyright law that existed before the Copyright Act of 1976, they both continue to exert considerable influence.
7.1 F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago1
The most significant case involving copyright infringement by a church is F.E.L. Publications. Ltd. v. Catholic Bishop of Chicago.
In response to the demand for Catholic liturgical music in the English language following the Second Vatican Council, F.E.L. Publications (“F.E.F.”) began producing hymnals and songbooks. These publications consisted largely of public domain works, works composed by F.E.L., and works composed by other authors who had granted F.E.L. an exclusive license to sell their works in return for royalty payments. From the 1960s until 1976, Catholic parishes within the Chicago Archdiocese used F.E.L. hymnals and songbooks. Initially, F.E.L. granted churches a license to copy any of its copyrighted songs for two cents per copy. Because of unauthorized copying within the parishes, F.E.L. instituted a new licensing program in 1972 which it called an “annual copying license” (ACL).
Under the new arrangement, churches could choose among three alternatives: (1) purchase a one-year ACL for $100 that gave a church a license (i.e.., legal right) to “make unlimited numbers of copies from F.E.L.’s printed page or from user’s own original master copy”; (2) purchase the right to use any song for any one occasion (such as a wedding or funeral) for a charge of two cents per copy per song (minimum charge of $10); and (3) churches could purchase F.E.L.’s hymnals and songbooks, regardless of whether they desired permanent copies of all or only a few selections. F.E.L. owned the rights to 1400 sacred songs, all of which were available to a church that purchased a one-year ACL for $100. Churches wanting to use any of these songs could not deal directly with the composer, since the composer had granted F.E.L. an exclusive license to market the work. Churches that purchased a one-year ACL for $100 were required to destroy all copies that were made pursuant to the license at the end of the term, unless an additional $100 was paid to renew the license for an additional year. F.E.L. also offered parishes a “prior copying release,” which would excuse past copyright infringement for a single payment of $500.
The parishes’ response to these arrangements was less than overwhelming, and, because of continued infringement, F.E.L. filed suit against the Catholic Bishop of Chicago in 1976. The lawsuit alleged that the Catholic Bishop infringed the copyrights owned by F.E.L. by “publishing, distributing, and selling songbooks including songs which were copied largely from F.E.L.’s work, and by allowing others to publish, distribute and sell songbooks on property owned, controlled and supervised by the Catholic Bishop.”
F.E.L. alleged that it was entitled to actual damages of $190,400—the amount it would have received if each of the 238 infringing parishes had obtained F.E.L.’s $100 annual copying license for each of the three years in which infringement was proven, and had also obtained a $500 prior copying release for all previous unauthorized copying. After F.E.L. brought the lawsuit, the Catholic Bishop sent letters to local parishes and to bishops and archbishops throughout the United States, instructing them not to use F.E.L. materials until the lawsuit was completed. This action prompted F.E.L. to seek additional damages for the Catholic Bishop’s alleged “tortuous interference” with F.E.L.’s business relationships.
In 1981, a federal trial court acknowledged that the making of “xeroxed or typewritten hymnals from songs in copyrighted hymnals” constituted copyright infringement. However, the court dismissed the lawsuit on the ground that F.E.L.’s licensing scheme was a “tying contract” that was illegal under the Sherman Antitrust Act. Specifically, the court observed that
by obtaining assignments of the songs with the right, on behalf of the composers, to license their use for an annual fee, and by obtaining assignment of copyrights for the same purpose, F.E.L. either absolutely controls or has ownership power over copyrights to hymnals, songbooks, and the 1400 religious songs listed in its master title index. A Catholic church or parish that wants to purchase the right to copy and use a song either in one of F.E.L.’s hymnals, songbooks, or those listed in its master title index, cannot deal directly with owners of the copyrighted works listed by F.E.L. In most instances, a church or parish does not desire permission to use all of F.E.L.’s listed songs; there is no interest in all of the songs in F.E.L.’s hymnals, songbooks, and listed in the master index. The most desired are about 25 or 30 of the more popular or “blockbuster” songs. Yet, F.E.L.’s policy has always been “all or nothing”; the church or parish desiring to purchase the right to copy and use some of the listed songs has to pay for permission to use all of them. The songs are different; in many instances, the composers are different, yet purchase of the right to use the more popular has been tied by F.E.L. to the purchase of all, including the less popular. It is now well known that a tying arrangement whereby a party agrees to sell one product but only on condition that the buyer also agrees to purchase a different or tied product is prohibited by the Sherman Act, and by the Clayton Act.
A federal appeals court reversed the lower court’s ruling against F.E.L., and a trial was conducted. The jury agreed that copyright infringement had occurred, and returned a verdict (in April of 1984) of $190,400 in actual damages, $2 million in compensatory damages, and $1 million in punitive damages. The Catholic Bishop appealed this verdict, and a federal appeals court upheld the actual damages award of $190,400, but held that the other awards had to be reduced to the extent that they were based on the Bishop’s encouragement of Chicago parishes to refrain from purchasing F.E.L.’s materials. The court observed that the Catholic Bishop of Chicago and the Chicago parishes comprise one legal entity and accordingly the bishop could not be guilty of “interfering” in the business arrangements of others.
The Catholic Bishop decision is significant for the following reasons:
1. It recognizes that a church can be sued for copyright infringement.
2. It recognizes that making copies of copyrighted songs constitutes copyright infringement.
3. It demonstrates that typing only the lyrics of a copyrighted song is sufficient to constitute copyright infringement.
4. It indicates that certain “blanket license” agreements may be unlawful under federal antitrust law. The license involved in the Catholic Bishop case was an exclusive license, meaning that a composer gave F.E.L. the sole right to market his or her song. While an in depth discussion of the legality of such licenses is beyond the scope of this book, it should be noted that a few courts have upheld the legal validity of nonexclusive licenses. For example, ASCAP and BMI operate in much the same manner as F.E.L. in the sense that members give ASCAP and BMI the right to license the performance or broadcast of members’ copyrighted works. ASCAP and BMI in turn grant blanket licenses authorizing licensees, for a flat fee, to use any work in the ASCAP or BMI repertory. ASCAP and BMI have been the target of several lawsuits alleging violation of federal antitrust laws (because of “tying arrangements”). So far, ASCAP and BMI blanket licenses have been upheld on the ground that they are nonexclusive. This means that ASCAP and BMI members retain the right to directly license their works to third parties. Churches that obtained a license from F.E.L. were not afforded this right (authors and composers granted F.E.L. the exclusive right to license the performance and reproduction of their works).
7.2 Wihtol v. Crow2
In 1935, Austris Wihtol composed a song entitled “My God and I.” The song achieved worldwide popularity, and became the chief source of income for its composer. It was performed largely in schools and churches. Nelson Crow was the choir director and organist at a Methodist church in Iowa. His duties included the selection of choral music for the choir and the furnishing of printed copies of music to its members. Mr. Crow found the song “My God and I” unsuitable for use by his choir, since the copyrighted song “was arranged for solo voice with piano score.” Accordingly, he made a choral arrangement of the song which he duplicated for each member of his choir. His arrangement included a new four measure introduction, and contained the words “arranged by Nelson E. Crow.” No reference was made to the composer, Mr. Wihtol.
Mr. Crow’s church choir performed the new arrangement in a church service. He was so pleased with the result that he wrote Mr. Wihtol a letter advising him of the new arrangement and asking if he would be interested in buying it. When Mr. Wihtol’s request to “inspect” a copy of the new arrangement was ignored, he sent Mr. Crow a letter advising him that “the plain fact is that you are guilty of copyright infringement and are subject to assessments and penalties that the law imposes on infringers.” The letter continued: “For the present, we will not institute a criminal complaint for willful infringement (maximum penalty—one year in jail and $1,000 fine because we wish to let you off as easily as possible. For the sake of a peaceful and pleasant settlement, please have all of the copies you made delivered to our office in California immediately.” Crow immediately forwarded the copies that he had made. A few months later, Wihtol filed a lawsuit in federal district court alleging that Crow, and his church, were guilty of copyright infringement. The trial court concluded that Crow’s arrangement was a noninfringing “fair use” of Wihtol’s original; that the church was not guilty of infringement; and that Wihtol’s threatening letter entitled Crow to an award of attorneys’ fees. Wihtol immediately appealed this ruling.
The federal appeals court reversed the lower court’s ruling and found Crow and the church guilty of copyright infringement. The court noted that Wihtol, the copyright owner, “had the exclusive right to copy his copyrighted song, and obviously Nelson E. Crow had no right whatever to copy it.” The fact that Crow’s copying “was done without intent to infringe” was of no help to him. In rejecting the trial court’s conclusion that Crow’s copying constituted noninfringing fair use of Wihtol’s work, the court observed: “Whatever may be the breadth of the doctrine of ‘fair use,’ it is not conceivable to us that the copying of all, or substantially all, of a copyrighted song can be held to be a ‘fair use’ merely because the infringer had no intent to infringe.” On the contrary, “the copying of [Wihtol’s] song by Crow was, in our opinion, an infringement of [Wihtol’s] copyright.”
To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement. The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source.
The court concluded that the church was also liable for copyright infringement since an employer is legally responsible for the actions of employees committed within the scope of their employment. The church had argued that it could not be responsible for Crow’s infringement since he was an “independent contractor” rather than an employee. In rejecting this defense, the court observed that “it seems to us that the only reasonable inference that reasonably can be drawn from the evidence is that in selecting and arranging the song for use by the church choir, Crow was engaged in the course and scope of his employment by the church.” The court also rejected the trial court’s award of attorneys’ fees to Crow as a result of Wihtol’s intimidating letter. “Whatever may be thought of Wihtol,” concluded the court, “the song is a copyrighted production which [he] can protect and defend against all infringements, intentional or otherwise.” Further, the attorneys’ fees never would have been awarded to Crow by the trial court had he been found guilty of infringement.
The Wihtol case is significant for the following reasons:
1. It recognizes that a church can be liable for the copyright infringement of its employees. Whether a particular individual is an employee of a church is often a difficult question to resolve. Generally, the “common law employee test” employed by the courts and the IRS in determining whether a particular taxpayer is an employee or self-employed for income tax reporting purposes is useful in making determination. See Richard Hammar’s Church and Clergy Tax Guide for a complete explanation of this important test. The Wihtol case lends support to the conclusion that a church choir director and organist is an employee.
2. It recognizes that the unauthorized duplication of copyrighted music, even for performance by a church choir, constitutes copyright infringement.
3. It rejects the view that copying all, or substantially all, of a copyrighted musical work for use by a church choir constitutes noninfringing “fair use.”
4. It recognizes that an unauthorized arrangement of a copyrighted musical work is an infringement of the copyright owner’s exclusive rights. The arrangement involved in the Wihtol case involved a choral arrangement of a copyrighted song, together with a new four measure introduction.
Endnotes
1 506 F. Supp. 1127 (N.D. Ill. 1981), rev’d, 214 U.S.P.Q.. 409 (7th Cir. 1982). See also 466 F. Supp. 1034 (N.D. Ill. 1978); 739 F.2d 284 (7th Cir. 1984); 754 F.2d 216 (7th Cir. 1985). This case will be referred to as the Catholic Bishop decision.
2 309 F.2d 777 (8th Cir. 1962).