The previous eight chapters explained in detail the application of copyright law to most church practices. This chapter will summarize, by topic and in alphabetical order, the major issues. You can use this chapter to obtain a quick answer to most questions. However, if you would like a more complete explanation of any particular issue, please refer back to the earlier chapters. References to specific sections or chapters are provided at the conclusion of each topic.
ACCOUNTINGS [see Compulsory Licenses]
ARCHIVAL COPIES
Can a church make a copy of any copyrighted work for archival purposes without violating the copyright law? The answer is no. However, some duplication may be authorized. Section 108 authorizes “libraries and archives” to make a single archival copy of a copyrighted work if no commercial benefit is intended, the collections of the library or archives are open to the public or are available to researchers not associated with the library or archives, and the copies contain a copyright notice. Section 108 also allows libraries and archives to make an archival copy of a damaged, lost, or stolen copyrighted work if an unused replacement copy cannot be obtained at a fair price. Interpreted broadly, section 108 may authorize churches to make a single copy of a copyrighted work for a church library or archives if the conditions summarized above are satisfied. No court has addressed the application of section 108 to churches. A library maintained by a church-operated private school would much more clearly qualify under section 108. Note that section 108 does not apply under any circumstances to musical works or audiovisual works (except in the case of copies made to replace damaged, lost, or stolen works). Further, section 108 applies only to “isolated and unrelated reproductions of a single copy” on separate occasions. As a result, a church choir director could not make 25 copies of a copyrighted octavo and claim that the making of these copies is authorized by section 108.
Section 117 allows the lawful owner of a computer program to make a “backup” copy for archival purposes [See sections 6.4, 6.11, and 8.1(C).]
ARRANGEMENTS (musical)
A musical arrangement is an adaptation of a musical composition. Arrangements may adapt a composition to fit another medium of performance (i.e., an instrumental arrangement of choral music, or of a piano composition), or they may simply modify an existing composition while retaining the character of the original. Whatever its form, an arrangement ordinarily is considered to be a “derivative work.” Section 106 gives to a copyright owner the exclusive right to “prepare derivative works based upon the copyrighted work.” Therefore, it is important to recognize that only the copyright owner has the authority to make arrangements of a copyrighted musical composition. Persons wanting to make an arrangement of a copyrighted musical work must obtain permission in advance from the copyright owner.
[See section 5.1(B).]
ARTICLES
Articles appearing in periodicals raise a number of important copyright questions: (1) are articles copyrightable independently of the periodical itself (and if so, how is this accomplished); (2) must copyrighted articles contain a separate copyright notice; (3) what right does the publisher of a periodical have to reprint an article that appeared preciously in its publication; (4) how much of an article can be copied or quoted without infringing on the rights of the copyright owner? Let’s answer each of these questions briefly. First, an article can be copyrighted separately from a publication in which it appears. Section 103(b) provides that the copyright in a periodical is independent of, and does not affect, any copyright in the preexisting materials that make up the periodical. Second, unless the author of an article transfers greater rights in a signed writing, it is presumed that he or she gives a publisher only the limited authority to publish the article in a single issue, plus in later issues “in the same series.” Third, how much of a copyrighted article can be copied without infringing on the rights of the copyright owner? This question is answered fully in sections 5.1(A) and 6.1. For a brief discussion, see the topic “Copies” in this chapter.
[See sections 1.2 and 1.4.]
ASSIGNMENTS [see Transfers]
AUTHOR UNKNOWN
Occasionally a church will print a poem or quotation in a church bulletin or newsletter with the notation “author unknown.” If the church cannot ascertain the identity of the author after a reasonable search, it is free to publish the work with the citation “author unknown,” so long as it can establish that it was misled by the omission of notice.
[See section 1.3(B).]
AUTHORS
Section 201(a) of the Copyright Act specifies that a copyright in a particular work vests initially in the author. However, the term “author” is not defined. Note that the author of a “work made for hire” is the employer of the person who created the work.
[See section 1.4.]
BERNE CONVENTION
The Berne Convention is an international copyright convention established a century ago and endorsed by most nations. The United States became a party to the Berne Convention on March 1, 1989. Participation by the United States in this significant convention increases the international protections available to American authors. To become a party to the convention, Congress had to make various changes in our copyright law (unwillingness to make the required changes was one of the major reasons that it took the United States a century to join the convention). Among the notable changes in our copyright law were the following: (1) mandatory notice of copyright was abolished for works published for the first time on March 1, 1989; (2) registration of a copyrighted work whose “country of origin” is not the United States is no longer necessary in order to sue for infringement; (3) the penalties for copyright infringement increased significantly; (4) the works of American authors and composers receive “automatic” legal protection in most foreign countries; (5) the recording of copyright “”transfers” or assignments is no longer required prior to suing for infringement. These important changes, among others, are reflected throughout this text.
BIBLES
The King James Version is in the public domain, meaning that anyone can quote it as extensively as desired. Therefore, it is perfectly permissible to print the lyrics (but not the music) of “scripture choruses” using the King James Version. However, all of the more recent translations and paraphrased versions of the Bible are copyrighted. As a result, these works cannot necessarily be quoted or reproduced without raising the possibility of copyright infringement. Most modern translations and paraphrased versions of the Bible contain an authorization (usually on or near the title page) for specified uses. For example, the New International Version permits users to quote from or reprint “up to and inclusive of one thousand verses without express written permission of the publisher, providing the verses quoted do not amount to a complete book of the Bible nor do the verses quoted account for 50% or more of the total work in which they are quoted.” To illustrate, there are five books of the Bible that contain only one chapter (Obadiah, Philemon, Jude, 2 John, and 3 John). Technically, a pastor could not read the NIV translation of any of these books in a sermon without first obtaining permission from Zondervan Bible Publishers, the copyright owner. The reading of a copyrighted translation or version in the course of worship services is not exempted from copyright infringement by virtue of the “religious services exemption” set forth in section 110(3) of the Copyright Act, since this exemption only applies to religious music. However, the principle of “fair use” will justify the reproduction of portions of copyrighted translations and versions in many situations.
[See sections 5.1(A), 5.1(D), and 6.1.]
BLANKET LICENSES
A blanket license is a convenient way for a church to avoid infringing upon the copyrights of certain publishers and composers. Generally, a blanket license authorizes a church to use specified copyrighted music for certain purposes during the term of the license. The church pays a fee for the license. Blanket licenses are offered by some music publishers, and by a few companies that have obtained the legal right to license the copyrighted works of certain publishers and composers. Blanket licenses cannot ensure that a church will never violate the copyright laws, since (1) such licenses only authorize the making of certain types of copies and certain recordings and broadcasts (the terms vary from company to company), and (2) not all of the music that a church uses will be covered by blanket licenses. Christian Copyright Licensing, Inc has developed a large repertory of songs that it is authorized to license to local churches. Churches that are not willing to obtain a blanket license should contact directly the publishers of the Music that they enjoy performing, since individual publishers remain free to license the use of their works directly to churches even though they have agreed to allow CCLI or any other clearinghouse to act as their agent in licensing their works. In other words, CCLI has only a “nonexclusive” right to license copyrighted works in its repertory.
[See sections 6.12 and 7.1.]
BOOKS
Books raise a number of copyright issues that are summarized elsewhere in this chapter. See the following topics—Bibles, Copies, Classroom Instruction, Fair Use, Hymnals, Libraries, Registration.
BROADCASTS
Some churches broadcast their services over radio or television stations. In some cases the broadcasts are “live,” while in others tape recordings of prerecorded services are utilized. What copyright questions are raised if a church’s services are broadcast over a radio or television station? Performances of copyrighted musical works of a religious nature in the course of religious services at a church or other place of religious assembly are exempt from copyright infringement. However, this exemption does not extend to broadcasts of those performances. Whether such broadcasts constitute copyright infringement will depend upon whether or not the broadcaster has obtained a license to broadcast the copyrighted works performed in the course of the religious services. While this ordinarily is the responsibility of the broadcasting station, it would be appropriate for a church to confirm that the broadcaster in fact has a valid license authorizing broadcasts of the copyrighted religious works performed in the church services. These same rules generally apply to special programs produced by churches that are broadcast over radio or television stations. Examples include a short weekly or daily programming, or a holiday special. Also note that a church that records its services for future broadcasts has the right to make a recording (an “ephemeral recording”) for each transmitting station if certain conditions are satisfied.
[See sections 5.1(A), 5.1(D), 5.1 (E), 5.2, 6.1, 6.5, 6.7, and 6.9.]
BULLETINS
Churches often reprint poetry, cartoons, or the lyrics to copyrighted songs in their weekly bulletins and newsletters. If all or a significant portion of the lyrics to a copyrighted song are reproduced, or all or a significant portion of a copyrighted poem, or a copyrighted cartoon, such practices ordinarily would constitute copyright infringement. This is true even if proper credit is given to the author or composer.
[See sections 5.1(A), 5.2, and 6.1.]
CARTOONS
Church bulletins and newsletters often contain cartoons. However, if a copyrighted cartoon is reproduced, such a practice ordinarily will constitute copyright infringement. If you see a cartoon in a copyrighted periodical that you would like to reprint in a church bulletin or newsletter, be sure to obtain advance permission from the copyright owner.
[See sections 5.1(A), 5.2, and 6.1]
CHOIR
The activities of church choirs often raise questions under copyright law. The major areas of concern are as follows: (1) choir directors cannot make unauthorized copies of copyrighted music for members of the choir without infringing upon the copyright owner’s exclusive right to make copies of his or her work; choir directors cannot make unauthorized transparencies of copyrighted music for use during choir rehearsals; (3) choirs are free to perform copyrighted music in the course of church services, but if the service is recorded and copies of the recording are sold or otherwise distributed to others without authorization from the copyright owner, infringement may occur; (4) choir directors should not alter or make arrangements of copyrighted works, since such actions may constitute an infringement upon copyright owner’s exclusive right to make derivative works. Note that the so-called “fair use guidelines” for educational uses of music (see “Classroom Teaching Activities—Making Copies”) do not authorize the duplication of choral music. However, they do permit emergency photocopying to replace purchased copies that for any reason are not available for an imminent performance provided that purchased replacement copies are later substituted.
[See sections 5.1(A), 5.1(B), 5.1(D), 5.2, 6.1, 6.7, 6.10, 7.1, and 7.2.]
CHORAL WORKS [see Choir]
CHORUS BOOKLETS
Many churches have prepared “chorus booklets” to facilitate the singing of contemporary music during worship services. Typically, these booklets consist of the lyrics of a variety of copyrighted and public domain choruses. If the chorus lyrics are subject to copyright protection, then their unauthorized reproduction for use in church chorus booklets will constitute copyright infringement. It is no defense that only the lyrics (and not the music) are reproduced, since the lyrics comprise a significant portion (both in terms of quantity and quality) of the whole work. Further, the unauthorized reproduction of chorus lyrics is not justified because their use will be limited to religious worship services. Such a practice was found to constitute copyright infringement in the Catholic Bishop decision summarized in Chapter 7.
[See sections 5.1(A), 5.1(B), 5.1(D), 5.2, 6.1, 6.7, 6.10, 7.1, and 7.2.]
CHORUSES
Many church congregations sing choruses during worship services. Choruses are musical compositions consisting of both lyrics and music, and they ordinarily are either integral parts of a copyrighted hymn containing one or more verses or independent works not associated with another piece of music. Choruses raise a number of copyright issues. First, copyright protection can extend to either the lyrics, the music, or both. For example, both the lyrics and music of many choruses are subject to copyright protection. However, with older works, the lyrics and original score often are in the public domain (i.e., they have lost their copyright protection). Churches need to be careful here, since a new musical arrangement of a public domain chorus can be separately copyrighted. In such a case, the lyrics remain in the public domain, but the music is protected against infringement. This means that a church is free to copy in any manner the lyrics to such a chorus, but it cannot copy the music without authorization. Second, there is no doubt that the chorus of a copyrighted hymn constitutes a substantial enough part of the original that a church cannot copy it without infringing upon the copyright owner’s exclusive right to make copies. The same rule applies to a chorus that is independent of any other musical work. This means that a church cannot stake copies of copyrighted choruses, without authorization, for any purpose. This includes copies for the choir, copies inserted in “chorus booklets” utilized during congregational singing, and transparencies fabricated by church staff for use during choir rehearsals, church services, or instruction. Third, copyrighted choruses can be performed during church services—meaning that they can be sung by a choir or by the congregation. This assumes that lawful copies are being used for the performance. If the service in which choruses are performed is being recorded and copies of the recording are sold or otherwise distributed to others without authorization from the copyright owner, infringement may occur. Fourth, choir directors should not alter or make arrangements of copyrighted choruses, since such actions may constitute an infringement upon the copyright owner’s exclusive right to make derivative works. Fifth, chorus lyrics (if copyrighted) cannot be reproduced in church bulletins or bulletin inserts, even if intended for just a single use, without authorization.
[See sections 5.1(A), 5.1(B), 5.1(D), 5.2, 6.1, 6.7, 6.10, 7.1, and 7.2.]
CHURCH LIABILITY
Churches can be liable for copyright infringement in any of the following three ways: (1) A church may directly commit copyright infringement by its own actions. For example, if a church creates a website that includes unauthorized copies of copyrighted material, the church would be directly liable for violating the copyright owner’s exclusive right of reproduction. (2) A church may be liable for an employee’s acts of copyright infringement on the basis of the principle of contributory copyright infringement. Liability exists if a church “knew or had reason to know” of direct infringement by a staff member. Knowledge of specific acts of infringement is not required. Contributory copyright infringement also requires that the secondary infringer “materially contribute” to the infringing conduct. Material contribution can include providing the “site and facilities” for the infringing conduct. (3) Under the principle of vicarious copyright liability an employer is liable for the acts of its employees committed within the scope of their employment. It also imposes liability on an organization that “has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.” Under this expanded definition, it is possible for churches to be liable for many acts of direct copyright infringement by their employees and others. All that is required is that a church have a right to supervise an infringing activity and a direct financial interest in that activity.
[See section 5.4.]
CHURCH SERVICES [see Religious Services]
CLASSROOM TEACHING ACTIVITIES—MAKING COPIES
Can a teacher make copies of copyrighted materials for each of the students in a class? If so, how does this protection apply to churches? These are two very important questions. In 1975, a group of publishers and educators drafted a set of guidelines specifying various types of classroom copying that they considered non-infringing “fair use.” These guidelines pertained to copying of books and periodicals by nonprofit educational institutions for classroom use, and they were later included in the House Report on the Copyright Act of 1976 as “a reasonable interpretation of the minimum standards of fair use.” These guidelines are reproduced in full in section 6.2. Generally, they authorize the making of copies for each member of a class if the copying meets tests of brevity, spontaneity, and “cumulative effect.” Review the actual guidelines carefully. It is not Yet clear whether the guidelines apply to churches, though there is little doubt that they will apply to church-operated private schools, and they logically should apply to religious instructional activities that occur in classroom facilities within a church. Also note that representatives of music publishers and music educators developed another set of guidelines that apply to educational uses of music. These guidelines were also approved by the House of Representatives in its report on the Copyright Act of 1976, and they are reproduced in full in section 6.3 of this book. Like the guidelines that apply to the copying of books and periodicals for classroom use, strict conditions apply with regard to the amount of music that can be copied. Further, it is unclear whether the music guidelines apply to churches. However, it is reasonably certain that they will apply to church-operated private schools, and they logically should apply to religious instructional activities that occur in classroom facilities within a church.
[See sections 6.2 and 6.3.]
CLASSROOM TEACHING ACTIVITIES—PERFORMANCES AND DISPLAYS
The performance or display of copyrighted works in the course of face-to-face teaching activities in a classroom at a nonprofit educational institution is a permissible activity. Church-operated schools would qualify for this special protection, and it is arguable that instructional activities within a church would also qualify “though no court has so ruled). Note that only performances and displays are permitted—this rule does not authorize the making of copies. Second, only displays of lawfully acquired copies are covered. For the guidelines applicable to making copies for classroom use, see “Classroom Teaching Activities—Making Copies.”
[Sec section 6.6.]
COMPULSORY LICENSES
A copyright owner has the exclusive right to publicly perform his or her works. However, the Copyright Act permits musical works of a religious nature to be performed in the course of services at a church of religious assembly. This exception does not extend to recordings made of services, and accordingly a church commits copyright infringement by making and distributing recordings of services in which copyrighted music is performed. Churches can avoid this problem by obtaining a compulsory license (previously called “mechanical licenses”) from the copyright owner. Such a license is available to any church that satisfies conditions (including the filing of a timely notice with the copyright owner prior to distributing the tapes, filing of monthly and annual statements of account with the copyright owner, and the payment of royalties). Failure to comply with these conditions (unless excused by the copyright owner) prevents a church from obtaining a compulsory license, and ordinarily makes the recording of services in which copyrighted music is performed a copyright infringement.
[See section 6.10.]
COMPUTERS
Many churches have grown dependent upon computers. While computers can save churches a substantial amount of time, they also create potential copyright problems. In particular, church employees must not make copies of copyrighted software without permission (other than a single copy for archival purposes). This includes software obtained for review or trial purposes from a local dealer, and also software owned privately by a church employee or church member. Also, church staff should be instructed not to modify copyrighted software without written permission.
See also E-Mail, Internet, and Software. [See sections 6.11, 8.1, 8.2, and 8.3.]
COPIES
Many churches make copies of various literary and Musical works for a variety of purposes. Examples include reproductions of (1) song lyrics in a church bulletin or homemade song booklet or on a transparency or slide, (2) both lyrics and music of choral music for members of the choir, (3) excerpts from books or magazines for use in the church educational program, or in church newsletters, (4) tape recordings (audio and video) of church services that contain performances of copyrighted songs, and (5) computer programs. These, and many other church copying practices, are potential infringements upon one of the most significant “exclusive rights” of a copyright owner—the right to make copies of his or her work. Verbatim copying of an entire work is not required in order for copyright infringement to occur. Reproductions of portions of a copyrighted work that are substantial either in terms of quantity or quality will suffice. It ordinarily is no defense that the infringer merely paraphrased the copyrighted work, or that copies were made for “nonprofit” or religious purposes. Nevertheless, the copyright owner’s exclusive right to make copies is subject to a number of exceptions, including the following: (1) Fair use. Copying will not infringe upon the copyright owner’s exclusive right of reproduction if it amounts to a “fair use” of the work. The following four factors must be considered in determining whether a particular use is a non-infringing fair use: (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (iv) the effect of the use upon the potential market for or value of the copyrighted work. Fair use is ordinarily very difficult to establish. It will not be available if the amount of a copyrighted work that is copied is significant either in terms of quantity or quality, the copies serve the same function as the copyrighted work, and the copying is made in lieu of purchasing lawful copies of the work. Copying is permitted in limited situations for classroom instruction (see “Classroom Teaching Activities—Making Copies”). (2) The making of a copy for “archival” purposes is permitted in some situations (see “Archival Copies”). (3) Recording a religious service containing copyrighted music is in some cases permitted if the recording is to be submitted to a television or radio station for public broadcasting, (4) Recording a religious service containing copyrighted music is in some cases permitted if the church obtains a compulsory license. (ii) The making of copies may be permitted under the terms of a blanket license agreement executed by the copyright owner or a company acting on behalf of the copyright owner,
[See sections 5.1(A), 5.2, 6.1, 6.2, 6.3, 6.4, 6.9, 6.10, 6.11, and 6.12.]
COPYRIGHT NOTICE [see “Notice of Copyright”]
DEPOSIT REQUIREMENTS
In general, a copyright owner has a legal obligation to deposit two copies of his or her work with the Copyright Office within three months of publication for the use of the Library of Congress. Failure to make the deposit can result in fines and other penalties, but will not affect copyright protection.
[Sec section 2.4.]
DERIVATIVE WORKS
One of the exclusive rights belonging to a copyright owner is the right to make “derivative works” that are based on the original work. Examples of derivative works include translations, musical arrangements, editions, and abridgements. This is a significant consideration for church musicians, for some of them are not aware that they have no legal right to make arrangements of copyrighted music.
[see section 5.1(B).]
DUPLICATING EQUIPMENT
Most churches have a duplicating machine. The making of copies of copyrighted materials (literary or musical) often will constitute copyright infringement. Exceptions do exist. (See “Copies.”) Churches should place a copyright notice near any church-owned duplicating machine, advising users of their legal responsibility not to make unauthorized copies or copyrighted material. A similar notice should be placed in the vicinity of any duplicating equipment owned by a church-operated private school. School libraries may make copies of copyrighted materials under limited circumstances.
[See section 6.4.]
DURATION OF COPYRIGHT
How long does copyright protection continue? This is a significant question not only for copyright owners, but also for churches wishing to duplicate older materials. Once the term of copyright protection expires, a work ordinarily falls into the “public domain” and may be used for any purpose without authorization. Works created on or after January 1, 1978 ordinarily are protected for a term consisting of the author’s life plus an additional 70 years. Works published or copyrighted before January 1, 1964 were protected for an initial term of 28 years, and could be renewed for a second term of 67 years by filing a renewal form with the Copyright Office during the 28th year of the first term of copyright. Works copyrighted between January 1, 1964 and December 31, 1977 are protected by copyright for the 28-year original term and a 67-year renewal term without the need a renewal registration. Copyrights in their second term on January 1, 1978 were automatically extended to a combined term of 95 years (the renewal term was increased from 28 years to 67 years).
[See Chapter 3.]
EDUCATIONAL USES OF COPYRIGHTED MATERIALS [see Classroom Teaching Activities]
Most churches now have computers that are connected by modem or cable to the internet. This has a whole new mode of communication which has come to be known as “e-mail.” It is now common for staff members to communicate with other staff members, congregation members, vendors, and a host of other persons and organizations by means of e-mail. Church staff members may commit copyright infringement by downloading copyrighted material from a web site and attaching it to an e-mail message that they send.
[See section 8.2.]
EMERGENCY COPIES
The “Guidelines for Educational Uses of Music,” adopted by a group of music publishers and educators (and approved by the House of Representatives in its report on the Copyright Act of 1976), permit “emergency photocopying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.” This provision applies to musical works.
[See sections 6.2, and 6.3.]
EMPLOYEE-MADE WORKS [see Works Made for Hire]
EXCLUSIVE RIGHTS
The copyright law gives a copyright owner the following five exclusive rights: (1) to reproduce copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. These live exclusive rights are sometimes referred to as the rights of reproduction, adaptation, publication, performance, and display. They comprise the “bundle of rights” that constitute or define copyright. It is unlawful for anyone to violate any of the exclusive rights provided to the owner of a copyright. These rights, however, are not unlimited in scope. The approach of the Copyright Act is to set forth the copyright owner’s exclusive rights in broad terms, and then to provide various limitations, qualifications, or exemptions.
[See section 5.1.]
FAIR USE
Section 107 of the Copyright Act specifies that “the fair use of a copyrighted work … 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.” Fair use is one of the most common defenses invoked by persons charged with copyright infringement. However, it ordinarily is very difficult to establish. It will not be available if the amount of a copyrighted work that is copied is significant either in terms of quantity or quality, the copies serve the same function as the copyrighted work, and the copying is made in lieu of purchasing lawful copies of the work. Copying is permitted in limited situations for classroom instruction (see “Classroom Teaching Activities—Making Copies”).
[Sec sections 6.1, 6.2, and 6.3.]
FAIR USE GUIDELINES [see Classroom Teaching Activities—Making Copies]
FORMS [see Appendix 2]
HYMNALS
Hymnals raise a number of copyright issues. First, a hymnal ordinarily is a “collective work,” meaning that it is eligible for copyright protection. Such protection extends only to the material contributed by the compiler (such as a foreword, any editing, and the arrangement or order of the individual works included in the hymnal). The fact that the hymnal is copyrighted does not in any way extend or affect the copyright protection of any work included in the hymnal. A public domain work remains a public domain work, even though it appears in a copyrighted hymnal. Further, the copyright term of a song first published in 1950 is not extended by its inclusion in a hymnal published in 2001. Second, the individual works contained in a hymnal need not bear separate copyright notices. A single copyright notice applicable to the copyrighted work as a whole is sufficient to satisfy the requirements of copyright notice with respect to the separate contributions (first published before March 1, 1989) that it contains. No copyright notice is needed to preserve the copyright in a work first published on or after March 1, 1989. Therefore, the fact that a particular song found in a hymnal does not have a separate copyright notice does not mean that it is in the public domain. Third, churches are not free to create without permission their own “hymnals” or songbooks by making copies of copyrighted songs (even if only the lyrics are copied).
[See sections 1.2, and 5.1(A).]
INFRINGEMENT
The copyright law defines “infringement” as any violation of one or more of the five exclusive rights of the copyright owner (see “Exclusive Rights”).
[Sec section 5.2.]
INTERNET
Most churches now have at least one computer with access to the internet either through a phone modem or cable connection. Downloading copyrighted material from internet web sites infringes upon the copyright owner’s exclusive right of reproduction. If the user uploads the copyrighted material to others, then the copyright owner’s exclusive right of public distribution may be infringed. The fair use defense often prevents downloading from constituting copyright infringement. But some downloading will not qualify as fair use. For example, if a user downloads a copyrighted computer program, or music, this cannot be considered fair use. Further, when users upload information to others, this weakens the availability of the fair use defense.
Churches can commit copyright infringement when creating and maintaining their own web sites in several ways, including (1) the use of someone else’s images or artwork on your own web site without permission, and (2) the use of copyrighted text on your web site without permission.
[See sections 8.2 and 8.3.]
LIBRARIES
The copyright law permits libraries to make copies of copyrighted works under certain conditions. Examples include copies made for preservation or security and copies made to replace damaged or lost copies (if unused replacements cannot be obtained at a fair price). Additional conditions apply.
[See section 6.4.]
LICENSES
A license is an authorization, usually in writing and for a fee, by which a copyright owner (or an agent acting on behalf of the owner) authorizes another (the licensee) to use copyrighted works in a way that would otherwise constitute infringement. Compulsory licenses (see “Compulsory Licenses”) permit churches to distribute recordings of services in which copyrighted music is performed. Blanket licenses (see “Blanket Licenses”) permit churches to copy (and sometimes to perform or record) any musical works listed in the repertory of the copyright owner or its agent.
[See sections 6.10 and 6.11.]
LYRICS
Copyright protection can extend to both lyrics and music. Therefore, it is no defense for a church employee to argue that he or she “copied only the lyrics.” Of course, once a song enters the public domain, the lyrics and original music are no longer protected. Subsequent arrangements of the same work can be copyright but such arrangements protect only the new musical composition and not the original lyrics.
[See sections 1.2, 5.1(A), 5.2, and 6.1.]
MECHANICAL LICENSES [see Compulsory Licenses]
NONPROFIT PERFORMANCES
Performances of copyrighted literary or musical works in the course of “nonprofit performances” will not constitute copyright infringement if certain conditions are satisfied. These conditions include the following: (1) The performance must not have a profit motive. (2) No fee or compensation can be paid to the performers (or promoters or organizers) for the performance. This condition does not prevent performers from receiving a salary for duties that include a particular performance. For example, performances by a school band do not lose the benefit of this exemption merely because the band conductor is a music teacher who receives an annual salary for performing his duties, so long as he receives no fee or payment for any particular performance. (3) There must either be no direct or indirect admissions charge, or alternatively, if an admissions charge is assessed, then any amounts left after deducting the reasonable costs of producing the performance must be used solely for educational, religious, or charitable purposes. If there is an admissions charge, then the copyright owner is given the authority to “veto” the performance by serving upon the person responsible for the performance a notice objecting to the performance. Such a notice must be in a writing that is signed by the copyright owner; it must be served upon the person responsible for the performance at least seven days before the date of the performance, and it must state the reasons for the objection. The impact of this provision is limited severely by the fact that section 110(4) does not require that the copyright owner be notified that his or her work is going to be performed at a nonprofit event with an admissions charge.
[See section 6.8.]
NOTICE OF COPYRIGHT
When a work is published, a notice of copyright should be placed on all publicly distributed copies. Failure to comply with this notice requirement can result in the loss of copyright protection for a work first published before March 1, 1989. The contents and placement of a valid copyright notice are described in sections 401(b) and 401(c) of the Copyright Act. A valid notice consists of three elements: (1) the symbol (†(the letter C in a circle), the word “Copyright,” or the abbreviation “Copr.”; and (2) the year of first publication of the work (in the case of compilations and derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient); and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. Works first published on or after March 1, 1989 are not required to display a valid copyright notice in order to preserve their copyright protection. However, such a valid notice is still recommended with respect to such works, since it will prevent infringers from claiming an “innocent infringement” defense.
I[See section 1.3.]
OPAQUE PROJECTORS
Many churches project the lyrics of copyrighted choruses and other religious songs onto screens or walls during the course of congregational worship. If the lyrics consist of a transparency or slide made by church employees without authorization of the copyright owner, then the act of making the transparency or slide ordinarily will constitute an infringement. Section 109(c) provides that “the owner of a particular copy lawfully made … is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”
This section generally allows the display of lawfully made copies of religious music in the course of religious services. Lawfully made copies include transparencies or slides that were purchased by the church from the copyright owner. They do not include copies made by church staff without authorization. However, note that if the church purchases a copy of a piece of music and then projects it on a screen during worship services by means of opaque projection, no copyright infringement has occurred since the church is displaying a lawfully obtained copy. An unauthorized copy is not being displayed. As a result, churches that use unauthorized slides and transparencies should consider the option of purchasing and using an opaque projector to display religious music during congregational singing.
[See section 6.5.]
OUT-OF-PRINT WORKS
Out-of-print works have not necessarily lost their copyright protection because the copyright term of most works far exceeds their useful life. Nevertheless, the House Report to the Copyright Act of 1976 states that the fact that a copyrighted work is out-of-print gives a user “more justification for reproducing it than in the ordinary case.” This simply means that one who copies an out-of-print work will have a somewhat easier task in establishing non-infringing fair use than otherwise would be the case.
[See section 6.1.]
PENALTIES
An array of potential penalties confronts the copyright infringer. These include injunctions prohibiting further infringement, confiscation and destruction of the infringing items, actual damages, statutory damages, and attorneys’ fees. Fines and prison sentences are imposed for criminal offenses.
[See section 5.3.]
PERFORMANCES—RELIGIOUS [see Religious Services]
A periodical is a literary work that is published at regular (e.g., monthly) intervals. Examples include religious journals, devotional magazines, and newspapers. Periodicals raise a number of copyright issues. First, it should be assumed that all articles and contributions to a periodical are copyrighted. This means they cannot be reproduced without authorization. Remember that an individual contribution to a periodical need not bear its own copyright notice so long as (1) the contribution was first published before March 1, 1989 and the periodical as a whole contains a valid notice, or (2) the contribution was first published on or after March 1, 1989. Therefore, the fact that an individual entry does not have its own separate copyright notice does not mean that it is in the public domain. Second, the periodical publisher acquires no more than the bare right to publish the article one time (or in future issues of the same periodical) unless the author conveys additional rights by means of a signed writing. Third, excerpts of copyrighted articles contained in periodicals can be quoted (orally or in written materials) only with authorization of the copyright owner or if the quotation constitutes a non-infringing fair use.
[Sec sections 1.3, 1.4, and 6.1.]
PHONORECORDS
A technical term that includes records and tape recordings.
[See section 1.3.]
POETRY
Churches often reprint poetry in church bulletins and newsletters. This practice constitutes copyright infringement if the poetry is copyrighted, and if authorization from the copyright owner has not been obtained. If the author of a poem cannot be ascertained after a reasonable search, the poem can be printed with the caption “author unknown.” In this case, the church will not be guilty of copyright infringement even if the poem is copyrighted, so long as it can prove that it was “misled” by the omission of a valid copyright notice containing the author’s name.
[See sections 1.3, 5.1(A), 5.2, and 6.1.1
PROJECTORS [see Opaque Projection, Transparencies]
PUBLICATION
“Publication” is a very important concept under the copyright law. Among other things, it determines when a copyright notice must be affixed to copies of a work. Distribution of copies of a work following publication, without a valid copyright notice, can result in the loss of copyright protection. Publication is a technical term that must not be confused with commercial publishing.
Publication is defined as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership….”Authors and composers may inadvertently lose their copyright protection by circulating too many copies of their work (for review purposes) without affixing a valid copyright notice, since at some point the circulation of an unpublished work will constitute publication. Precautionary measures are discussed in the text.
[See sections 1.3, 2.2, and 4.2.]
PUBLIC DOMAIN
Works that have lost their copyright protection, or that never were eligible for copyright protection, are said to be in the “public domain,” which is another way of saying that they may be copied, performed, or used in any other way without anyone’s authorization. A word of caution is in order. Do not assume that a particular work is in fact in the public domain without adequate proof. For example, as noted under “Periodicals,” the mere fact that an article in a periodical does not contain a separate copyright notice does not mean that it is in the public domain. The same rule applies to individual songs in a hymnal (see “Hymnals”). Further, the lyrics of a hymn may be in the public domain, but a particular arrangement of the hymn may still be covered by copyright protection. Finally, the adoption of the Berne Convention by Congress effective March 1, 1989 resulted in the elimination of all “copyright formalities”—including copyright notice. Accordingly, works first published on or after March 1, 1989 need not display a valid copyright notice. Section 401(d) of the Copyright Act suggests that an infringer can avoid or at least reduce legal liability for infringing on a copyrighted work (that did not contain a valid notice) by asserting that the absence of a copyright notice made his or her infringement “innocent.” Such a defense is not available if a valid copyright notice is displayed on the work (even though not required). Accordingly, copyright notices should still be displayed even though they technically may not be required.
[See sections 1.2, 3.1, and 3.2.]
RADIO [see Broadcasts]
RECORDINGS [see Tape Recordings]
REGISTRATION
]n general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. While registration is not required, it does provide certain benefits, including the following: it establishes a public record of the copyright claim; it ordinarily is necessary before any infringement suits may be filed in court; if made within three months after publication of a work, or prior to publication, statutory damages and attorneys’ fees will be available to the copyright owner in a court action. Registration is a fairly simple procedure that requires the submission of a form (and a small fee) to the Copyright Office.
[See sections 2.1, 2.2, and 2.3.]
REHEARSAL TAPES
Taped accompaniments are becoming increasingly common for choral works in lieu of the traditional organ or piano. Some choir directors, in an effort to assist choir members in learning their parts, make copies of the accompaniment tape for choir members to take home with them. Clearly, such a practice infringes upon the copyright that exists in the underlying work and perhaps in the sound recording as well, unless authorization is obtained in advance.
[See sections 1.3, 5.1(A), and 5.2.]
RELIGIOUS SERVICES
Performances of religious music, and displays of works, are exempted from copyright infringement if the performance or display occurs “in the course of services at a place of worship or other religious assembly.”
The term “display” does not cover the showing of motion pictures or videos. Also note that the religious services exemption does not extend to any act of unauthorized copying. To illustrate, the exemption does not protect the unauthorized duplication of a slide or transparency that is then displayed during a worship service. It is the unauthorized duplication that constitutes the copyright infringement, and this conclusion is not affected by the exemption of displays. The religious services exemption protects the performance of religious music in the course of worship services by a congregation, soloist, choir, orchestra, or any other person or group. Note that the exemption does not extend to recordings or broadcasts of such services (see “Broadcasts” and “Tape Recordings”).
[See section 6.7.]
RESEARCH
In 1975, a group of publishers and educators drafted a set of guidelines specifying various types of copying that they considered non-infringing “fair use” when done by teachers. These guidelines were later included in the House Report on the Copyright Act of 1976 as “a reasonable interpretation of the minimum standards of fair use.” These guidelines are reproduced in full in section 6.1. Generally, they permit a teacher to make a single copy of a chapter from a book, an article from a periodical, a short story, or a poem, for purposes of scholarly research or for use in preparing to teach a class.
[See section 6.2.]
ROYALTIES [see Compulsory Licenses]
SCHOOLS [see Classroom Teaching Activities—Making Copies; Classroom Teaching Performances and Displays; Libraries; Research]
SCRIPTURE CHORUSES
Many churches enjoy singing choruses consisting of scriptural passages set to music. Often, the lyrics of these choruses are reproduced on a songsheet, in a chorus booklet, or on a transparency. So long as the lyrics are from a public domain translation of the Bible (such as the King James Version), these practices are permissible. Of course, the music accompanying the lyrics may be copyrighted, and accordingly reproduction of the music may constitute copyright infringement.
[See sections 1.2, 1.3, 3.1, 3.2, 5.1(A), 5.1(11), 5.1(D), 5.2, 6.1, 6.7, 6.10, 7.1, and 7.2.]
SHEET MUSIC
Churches use sheet music in a variety of ways, including choral, instrumental, and solo performances. Copyrighted sheet music cannot be duplicated without authorization from the copyright owner. Copyright protection extends to both lyrics and music, so it is no defense that “only the lyrics were copied.” Duplication can take a variety of forms, including the making of copies for members of the choir, or the making of a slide or transparency. The “Guidelines for Educational Uses of Music,” adopted by a group of music publishers and educators (and approved by the House of Representatives in its report on the Copyright Act of 1976 permit “emergency photocopying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.” This provision only applies to musical works, including sheet music.
[See sections 5.1(A), 5,2, and 6.1.]
SLIDES [see Transparencies]
SOFTWARE
Most churches own several software programs. Common examples are word processing, spreadsheet, database, financial, and audiovisual “presentation” software, It is common for many of these programs to be pre-installed on new computers, while other programs are purchased and installed after a computer is acquired. The Copyright Act allows software programs to be protected by copyright. This means that the copyright owner of a software program has the same exclusive rights as any copyright owner, including the exclusive rights to copy and publicly distribute the program. As a result, it is a violation of copyright law for anyone who owns or possesses a software program to copy it, with the following exceptions: (1) owners of a lawfully acquired software program can make an “intangible copy” in their computer’s random access memory (RAM) in order to operate the program; (2) owners of a lawfully acquired software program can make a single backup copy for archival purposes; (3) copying software with the express permission of the copyright owner (usually through a license agreement that comes with the software); (4) copying software that is in the public domain.
[See section 8.1.]
SOLOS
Solo performances (vocal or instrumental) of copyrighted religious music in the course of worship services at a church or other place of religious assembly are exempted from infringement upon the copyright owner’s exclusive right of public performance. However, note that this exemption does not apply to recordings or broadcasts of the solo performance (see “Broadcasts,” “Compulsory licenses,” and “Tape Recordings”), or to copies made of the copyrighted work for an accompanist.
[See sections 5.1(A), 5.l (D), 5.2, 6.7, and 6.10.]
SONGBOOKS [see Chorus Booklets]
SONG LYRICS [see Lyrics]
STATEMENTS OF ACCOUNT [sec Compulsory Licenses]
SUNDAY SCHOOL [see Classroom Teaching Activities—Making Copies, Classroom Teaching Activities—Performances and Displays, Copies, Libraries, Research, Transparencies]
TAPE RECORDINGS
Churches often record their services, both on audio and video tape. While the performance of copyrighted musical works in the course of a church service ordinarily creates no copyright problems, the recording of a service does since the act of recording constitutes the making of an unauthorized copy of any copyrighted works performed in the course of the service. In the case of musical works, this problem can be avoided in a variety of ways, including the acquisition of a compulsory license (see “Compulsory Licenses”), a blanket license (see “Blanket Licenses”), or some other form of authorization from the copyright owner. Other solutions are discussed in the text. Note, however, that the compulsory license is available only for “phonorecords” (including records or audio tapes), and not videotapes.
[See sections 5.1(A), 5.1(D), 5.2, 6.1, 6.7, 6.10, and 6.12.]
TEACHING ACTIVITIES [see Classroom Teaching Activities—Making Copies, and Classroom Teaching Activities—Performances and Displays]
TELEVISION [see Broadcasting]
TRANSFERS
Any or all of the exclusive rights, or any subdivision of those rights, of the copyright owner may be transferred, but the transfer is not valid unless it is in writing and signed by the owner of the rights conveyed. To illustrate, authors and composers who do not expressly transfer the copyright (or some specific exclusive right) in their works to a publisher by means of a signed writing have not transferred the copyright in their work. Much unnecessary confusion exists on this point. Authors and composers must be certain that their publishing contracts specify clearly what exclusive rights, if any, they are transferring. Also note that a copyright may be transferred “by operation of law,” such as in a will.
[See sections 4.1 and 4.2.]
TRANSPARENCIES
Many churches use transparencies of songs in the course of congregational or choral singing. If the song is in the public domain, then a church is free to make and use its own transparency. Before making a transparency, a church must be certain that the lyrics (and music, if applicable) are no longer subject to copyright protection. If the song is still protected by copyright, then the act of making a transparency of the song ordinarily will constitute copyright infringement. It is no excuse to say that “only the lyrics were copied,” since the lyrics comprise a substantial enough portion of the work (both in terms of quantity and quality) to negate a “fair use” defense in nearly every case. Fair use is ordinarily very difficult to establish, It will not be available if the amount of a copyrighted work that is copied is significant either in terms of quantity or quality, the copies serve the same function as the copyrighted work, and the copying is made in lieu of purchasing lawful copies of the work. This is so even if the copy is made from a purchased copy of the work. A number of courts (as noted in the text) have concluded that the act of copying lyrics constitutes copyright infringement. Churches are free to display lawfully acquired copies of any copyrighted work under certain conditions. This “display right” does not entitle a church to display copies fabricated by the church with authorization. Of course, a church is free to purchase a transparence and display it, since this will be display of a lawfully acquired copy. And, a church is free to obtain authorization from the copyright owner to make a transparency. Many music publishers give churches the right to make a transparency for a nominal fee. Also, churches that obtain a blanket license from a publisher or an agent of one or more publishers often have the right to make transparencies of any song on a master list.
[See sections 5.1(A), 5.1(E), 5.2, 6.1, 6.7, 7.1, and 7.2.]
UNPUBLISHED MANUSCRIPTS
An unpublished manuscript is entitled to copyright protection so long as the work is original. This “initial” copyright protection continues up until the time the work is published. Copies of the work distributed following publication must contain a valid copyright notice to ensure that copyright protection will continue. To avoid inadvertent publication of the work without a valid notice, some authors and composers affix a notice to any copy of their work that leaves their control. Such a notice often takes the following form: “Unpublished work—Copyright 1989 John Doe.” If the work is submitted to publishers or other individuals for review purposes, the following additional statement could be affixed below the notice: “Unpublished manuscript submitted for review purposes only; publication or reproduction is prohibited without the author’s written consent.”
[See sections 1.3., 3.1, 3.2, and 4.2.]
VIDEOTAPES
Videotapes raise a couple of important copyright questions. First, the videotaping of a church service in which copyrighted musical (or other) works are performed constitutes a reproduction of those works. Unless such taping is authorized by the copyright owners, it constitutes an infringement upon their exclusive right to reproduce copies of their works. Since the compulsory license procedure is not available for videotape recordings, the remaining forms of authorization include blanket licenses or specific authorizations from the copyright owner. Churches are free to record services that do not contain performances of any copyrighted works, and they can record services that do contain performances of copyrighted works if the videocamera is switched off during such performances. In some cases, a church may be entitled to make a videotape for archival purposes (see “Archival Copies”). The second issue pertains to the use of videotapes in the course of church activities. For example, a youth group rents movies from a local video rental center for display during activities. Assuming that the person renting the video acquires a license to use it only for private “in-home” viewing, the showing of the video to the youth group would constitute copyright infringement.
Motion Picture Licensing Corporation, 5455 Centinela Avenue, Los Angeles, CA 90066-6970 (telephone 1-800-462-8855, web site mplc.com) is an independent copyright licensing service exclusively authorized by major motion picture studios and independent producers to grant “umbrella licenses” to nonprofit groups, including churches, to publicly display videos licenses for private, in-home use. The license allows unlimited use of all MPLC authorized motion picture titles within licensed facilities. The license period is generally one year and there is a low annual fee.
[See sections 5.1(A), 5.1(D), 5.1(E), 5.2, 6.1, 6.5, 6.7, and 6.12.]
WEB SITES [see Internet]
WORKS MADE FOR HIRE
A “work made for hire” is a work that is either (1) prepared by an employee within the scope of his or her employment, or (2) a work specially commissioned for use as a contribution to a collective work, audiovisual work, translation, supplementary work, or instructional work. The employer and not the employee is considered to be the author of a work made for hire, unless the parties stipulate otherwise in a signed writing.
[See section 1.4(A).]
WORLD WIDE WEB [see Internet]
WORSHIP SERVICES [see Religious Services]