Many churches have their own website on the internet, and for good reason. A website is a great tool for promoting the mission and ministries of a church, and for sharing information with members. But few church leaders are aware that there are several legal and tax issues associated with the use of church websites, and unfamiliarity with these issues can result in unexpected liability. This article will review the following five issues associated with church websites:
- copyright infringement
- trademark infringement
- the Children's Online Privacy Protection Act
- invasion of privacy
Part Two addresses five additional issues:
- political campaign activities
- charitable contributions
- engaging in "commerce"
- sales taxes
Issue #1: Copyright Infringement
Churches can commit copyright infringement when creating and maintaining their own websites. Here are some examples:
Images. The use of someone else's photo or artwork on your website without permission is a potential copyright infringement. Images taken by staff members with a digital camera are not a problem, but using images you find on the internet is a different matter since many of these images will be subject to copyright protection. All that is required for an image to be protected by copyright law is that it be original and in a tangible form. No copyright notice is required, although the absence of a valid copyright notice may make it more difficult for the copyright owner to establish copyright infringement due to the "innocent infringer" defense. Also, note that a copyright notice on the website where you found the image you want to reproduce may apply to all copyrighted materials on the site, which would have the effect of eliminating the innocent infringer defense.
The takeaway point is that the absence of a copyright notice on images you find on the internet does not mean that they are in the public domain and free from any copyright protection. The opposite is usually the case.
What does this mean, as a practical matter? When in doubt, contact the person who took the image you want to copy and obtain permission to use it. In some cases you may have to pay a small fee.
Here are some additional points to consider:
- Copyright law recognizes a "fair use" exception which permits the fair use of copyrighted materials. However, this defense is narrow, and generally does not apply to the use of images.
- Some courts have ruled that the use of "thumbnails" of copyrighted images constitutes non-infringing "fair use."
- If you purchase a license to publish an image on your church website, be sure to read carefully the terms of the license and (1) do not exceed the permission that is given, and (2) comply with any conditions that are specified (such as the use of a particular form of copyright notice).
- By placing a copyright notice on your church's website, you are helping to ensure the copyright protection of materials you have created or used with permission.
- Many people assume that copyright infringement can be avoided by referring to the copyright owner in connection with the copyrighted work that you are copying. This assumption is false, and does not avoid copyright infringement.
- The same copyright principles that apply to images also apply to clip art.
Copyright infringement is more readily discovered when copyrighted material is used without permission on a website, since a website constitutes "notice to the world" of infringing activities.
Text. The use of copyrighted text on a website without permission may infringe upon the copyright owner's exclusive rights of reproduction and public distribution. The copyright doctrine of fair use authorizes the fair use of copyrighted materials. Whether or not a specific use of copyrighted materials is a fair use depends on a number of factors, including the amount of material that is copied and the nature of the copyrighted work.
Church leaders should understand that the courts have construed fair use very narrowly. There is no question that copying an entire article, poem, news photo, design, or a significant excerpt from a book, will be beyond the protection of the "fair use" defense.
Resource. For a full explanation of the application of copyright law to church practices, see Richard Hammar's Church guide to Copyright law ( item #L301 ), available from the publisher of this newsletter by calling 1-800-222-1840.
Music. In the Napster case, a federal appeals court ruled that users who downloaded copyrighted music were engaging in copyright infringement. Users simply went to the Napster internet site, downloaded software, and then were able to transfer exact copies of music files from one computer to another via the internet. This allowed users to download exact digital copies of a vast array of popular copyrighted songs. A group of music publishers sued Napster. A federal court addressed the liability of Napster for copyright infringement as well as the liability of individual users who downloaded copyrighted music using Napster. The court rejected the argument that users were engaged in permissible fair use or "sampling."
The fact that your church has purchased music does not necessarily make it legal for you to post it on your website. For example, you may have downloaded a digital music file for a few dollars, but before you post that music on your website be sure to read the terms and conditions of the sale. In most cases, the fine print will strictly prevent the posting of the music to a website.
Linking. Most web pages are written in computer languages (such as HTML) that allow the programmer to control the appearance of the web page on the computer screen and, in addition, to instruct the computer to perform an operation if the cursor is placed over a particular point on the screen and the "mouse" is clicked. Programming a particular point on a screen to transfer the user to another web page when the point (referred to as a hyperlink) is clicked is called linking.
Web pages can be designed to link to other web pages on the same site or to web pages maintained by different sites. For example, a web page maintained by a church may provide a hyperlink to its parent denomination's site, or to the site of a church literature supplier.
Tip. Many churches, denominational agencies, and insurance agents have inserted links on their websites to our "churchlawtoday.com" and "reducingtherisk.com" websites.
Links bear a relationship to the information superhighway comparable to the relationship that roadway signs have to roads. Like roadway signs, they point out the direction. Unlike roadway signs, they take one almost instantaneously to the desired destination with the mere click of an electronic mouse. The courts have ruled that linking in itself does not constitute copyright infringement. To illustrate, one court observed,
Links are what unify the World Wide Web into a single body of knowledge, and what makes the Web unique. They are the mainstay of the internet and indispensable to its convenient access to the vast world of information. They often are used in ways that do a great deal to promote the free exchange of ideas and information that is a central value of our nation. Anything that would impose strict liability on a website operator for the entire contents of any website to which the operator linked therefore would raise grave constitutional concerns, as website operators would be inhibited from linking for fear of exposure to liability. And it is equally clear that exposing those who use links to liability … might chill their use, as some website operators … may be more inclined to remove the allegedly offending link rather than test the issue in court. Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000).
Church websites should not contain links to other websites without first obtaining permission from the provider of the other site. Also, never create links that do not clearly reveal the source of the linked information.
Copyright notices. While not required for any work created on or after March 1, 1989, it is a good practice to insert a copyright notice on any copyrighted material. If your church website contains text, photos, or art that was created by your members or staff, then you should insert a copyright notice on your website's main page. Such a notice also may protect copyrighted material that you obtained from a third party and that you have inserted (with permission) on your website.
A valid notice consists of three elements:
- the symbol © the word "Copyright," or the abbreviation "Copr."; and
- 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
- 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, a valid notice is still recommended since it will prevent infringers from claiming an "innocent infringement" defense.
Issue #2: Trademark Infringement
A URL ("Uniform Resource Locator") is the "address" or location of a website on the internet. A "domain name" is the portion of a URL that identifies a particular website. To illustrate, the URL for the Church Law Today website is "http://www.churchlaw- today.com," and the "domain name" is "churchlawtoday.com."
Church leaders should understand that URLs and domain names may constitute trademark infringement if they incorporate the name of a registered trademark. For example, let's say that a church creates a website with the domain name "lightoftheworld.com," and that a large for-profit lighting company obtained trademark registration 25 years ago for the name "Light of the World." Church leaders had no idea that their domain name conflicted with a registered trademark. It is possible that the trademark owner will sue the church for trademark infringement or a violation of the Anticybersquatting Consumer Protection Act. Whether the church has violated either law will depend on a number of factors, including the likelihood of public confusion.
Tip. Before selecting a domain name for a church website, church leaders should do a trademark search using the United States Patent and Trademark Office website. Such searches are not foolproof, but they are fast, cost nothing, and can indicate the possibility of a future legal challenge. More comprehensive (and costly) searches can be performed by a trademark attorney. Many trademark owners routinely conduct internet searches looking for website domain names that may infringe upon their trademark.
Issue #3: Children's Online Privacy Protection Act
The federal Children's Online Privacy Protection Act (COPPA) requires certain commercial websites to obtain parental consent before collecting, using, or disclosing personal information from children under 13 years of age. The purpose of COPPA is to protect the privacy of children using the internet. It was enacted in response to the widespread use of the internet by pedophiles to obtain personal information from children.
COPPA achieves its goal by requiring commercial websites and online services directed to (or that knowingly collect information from) children under 13 to provide notice about their policies with respect to the collection, use and disclosure of children's personal information. With certain exceptions, websites also must obtain "verifiable parental consent" before collecting, using or disclosing personal information from children.
COPPA only applies to commercial websites, and so it is not applicable to websites maintained by nonprofit churches even if they collect or use personal information obtained from children under the age of 13. However, many nonprofit organizations, including many churches, are voluntarily complying with the law to "set a good example" and demonstrate their commitment to protecting children. For example, the entire federal government is exempt from COPPA, but every federal agency that maintains a website is voluntarily complying. The same is true of many state agencies.
If your church operates a website, you may be "collecting" personal information obtained from children under 13. The word "collecting" is defined broadly by COPPA to include "the direct or passive gathering of any personal information from a child by any means," including any online request for personal information, or the use of a chat room, message board, or other public posting of such information. "Personal information" includes a child's name, address, phone number, or email address.
Key Point. Church websites ordinarily will not be covered by COPPA since they are not "commercial." Still, voluntary compliance has a couple of important advantages. First, it demonstrates a church's commitment to safeguarding children. And second, it will reduce a church's risk of liability in the event a child is seduced or molested as a result of information obtained by a pedophile from the church's website.
Issue #4: Invasion of Privacy
The use of someone's likeness without permission has been deemed to be an invasion of privacy by some courts. This risk goes way up if (1) the image is used for commercial purposes (in a money making venture, even if by a nonprofit entity), or (2) you use the image in connection with demeaning text (for example, an image of an adolescent in an article on victims of child abuse). If neither of these two factors is present, then the risk of invasion of privacy is reduced, but not eliminated.
Here are a couple of options that can reduce this risk. First, do not insert a photo of anyone on the church website without obtaining prior, written permission from that person. While this option is legally safe, many church leaders find it inconvenient. A second option is to print notices periodically in church bulletins or newsletters, informing members that the church occasionally uses photos of people and groups on the church website and that members objecting to the use of their photos (or photos of their minor children) should so inform the church office. A list can be maintained of persons who have requested that their photos not be used. This option provides "implied consent" to the use of members' photos. It is not as foolproof as having each person whose image is depicted on the church website sign a release, but it does provide some protection and is certainly more convenient. This option should only be used for photos of church members and their children.
Tip. The risk of liability based on invasion of privacy associated with the publication of a person's photo on a website without permission will increase in any of the following circumstances: (1) the photo was used for advertising purposes; (2) the photo was used to make a profit; or (3) the photo is associated with potentially negative text (for example, a photo of children on a church's web site accompanying an article or caption about victims of child molestation may constitute an invasion of privacy, as might a photo of adults accompanying an article or caption about the need to protect children from child molesters).
Prayer lists. Some churches post "prayer lists" on their website that describe the prayer needs of identified members. These needs may include medical diagnoses, relational problems, or financial needs. Does the posting of this information on a church website constitute an invasion of privacy? Possibly. A church can reduce if not eliminate this risk by obtaining consent from people before putting their names on the list. This can be done either by contacting persons directly and obtaining their written consent to having their name (and need) posted on the website prayer list. Some churches seek to avoid the inconvenience of obtaining the consent of every person on a prayer list by creating a "no prayer list" and notifying the congregation periodically (i.e., in church bulletins or newsletters) that persons who do not want the congregation to pray for them should contact the church office and have their names placed on the "no prayer list." This "implied" consent is not as effective as the express consent obtained by contacting each person directly, and it is far from clear whether it would be deemed effective by a court.
Issue #5: Pedophiles
A church may expose minors to risk by displaying images of them with personally identifiable information on the church's website. This information may be globally circulated among the pedophile community, and may allow child molesters to solicit and seduce these children.
As a result, the following two precautions should be considered:
First, in no event should any personally identifiable information about a minor be disclosed on a church website that would enable someone to initiate direct contact with him or her. Such information would include, for example, the minor's first and last name plus any one or more of the following: (1) a telephone number; (2) cell phone number; (3) email address; (4) residential address; (5) school; (6) account or access information for a web-based forum; or (7) home church (if the church has a website that contains a directory of members' names, addresses, and telephone numbers).
Second, other personally identifiable information about a minor may be disclosed on a church website with written permission of both parents (even if the parents are divorced or separated). For example, a church website displays an image of a minor that is accompanied by her name and grade in school.
Key Point. Some churches have placed their entire pictorial directory on a church website. There are two problems associated with such a practice. First, if a professional photographer was used to compile the directory and the photographer did not authorize the posting of the entire directory on the church's website, then the church probably has violated the copyright law. Second, as noted above, such a practice will provide invaluable information to pedophiles around the world.