• Key point 9-05.08. Copyright infringement occurs when one violates any one or more of the exclusive rights of a copyright owner.
* A federal court in Texas ruled that a company committed copyright infringement by making and selling a videotape of a concert in which copyrighted music was performed. A vocalist entered into an exclusive recording agreement with a music publisher (“Publisher A”), giving the publisher the exclusive right to all of his future recordings in exchange for royalty payments. Another music publisher (“Publisher B”) made a videotape recording of one of the vocalist’s concerts, and began selling copies of the videotape. Publisher A sued Publisher B for copyright infringement, and asked a court to award it “statutory damages” in the amount of $600,000, plus attorney’s fees. The court noted that copyright infringement requires proof of two elements: (1) ownership of a valid copyright; and (2) copying of the copyrighted work. The court concluded that Publisher A owned the copyright in all of the songs recorded by Publisher B, and, that Publisher B “copied” the songs by making the videotapes. The court concluded, “The Copyright Act states that the exclusive rights of a copyright owner include the right to reproduce the copyrighted work in copies or phonorecords; to prepare derivative works based upon the copyrighted work; to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer for ownership, or by rental, lease, or lending. Publisher B’s sale of the copyrighted material clearly violates Publisher A’s exclusive rights under the Copyright Act.
The court issued an injunction prohibiting Publisher B from any further acts of copyright infringement. It also awarded statutory damages in the amount of $100,000. In general, copyright owners can seek either actual damages or statutory damages from copyright infringers. Statutory damages are often preferred because the copyright owner is not required to prove actual damages. The copyright law permits a court to award statutory damages of not less than $750 nor more than $30,000 for each work infringed. If the infringement was willful, a court may award a maximum amount of $150,000 in damages per infringement. In making a statutory award, a court may consider “the likelihood of profits and losses and may take into account the attitude and conduct of the parties.” The court concluded that Publisher B acted willfully in recording the concert and selling videotapes, and so statutory damages were available up to $150,000 per infringement. After reviewing all the facts of the case, the court concluded that an award of $100,000 was reasonable, which represented $25,000 for each of the four copyrighted songs on the video. The court also ordered Publisher B to pay Publisher A’s attorney fees.
Application. This case has direct relevance to churches. It demonstrates that making and selling video recordings of religious services and concerts in which copyrighted music is performed will constitute copyright infringement, even though the live performance of the music may have been legally permissible under the so-called “religious services” exemption. Copyright infringement can be avoided through the purchase of license authorizing a church to make and sell videotapes of religious services. Malaco Incorporated v. Cooper, 2002 WL 1461927 (N.D. Tex. 2002).
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