A copyright owner’s five exclusive rights are neither absolute nor unconditional. On the contrary, they are subject to a number of limitations, the more important of which are summarized in this chapter.
6.1 Fair Use
Key point. The Supreme Court has observed that the fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster:” 1
Section 107 of the Copyright Act specifies that
four “fair use factors”
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified [in section 106], 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. Unfortunately, it is very difficult to define. Even section 107 does not define the term but rather “factors to be considered” in determining if a particular use is a fair use. Perhaps the best way to get a feel for the meaning of fair use is to review each of the four factors specified in section 107.
A. The Purpose and Character of the Use
first factor
The first factor to be considered in deciding whether or not a particular use of a copyrighted work is a fair use is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The courts have focused on three aspects of a particular work’s “purpose and character” in assessing this first factor.
(1) was the use of copyrighted material commercially motivated?
Clearly, the more “commercial” the motivation in exploiting the copyrighted work of another, the less likely that such use will be deemed “fair use.” The Supreme Court has observed that “every commercial copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright,” and therefore “any commercial use tends to cut against a fair use defense.” 2 However, it is important to emphasize that the mere fact that a particular use of a copyrighted work is commercially motivated does not resolve the issue of fair use. Commercial motivation is but one factor to consider. Similarly, the mere fact that a particular use is not commercially motivated does not resolve the issue of fair use. In this regard, the Supreme Court has noted that “even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.” 3
(2) productive or “transformative” use
A second aspect of a work’s “purpose and character” that the courts have isolated is whether or not the work’s use of another’s copyrighted material is a “productive” or “transformative” use of the material. What the courts mean by this is that the “mere reproduction of a work in order to use it for its intrinsic purpose” cannot be a fair use of the copyrighted work. 4 Rather, in order for a particular work’s use of copyrighted material to be a “fair use,” it must go beyond mere reproduction and impart some productive or original material, or it must “transform” the original material. The Supreme Court has noted that the ultimate question is whether the new work
adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. 5
(3) propriety
A third and final factor that some courts have cited in assessing the “purpose and character” of a particular use of copyrighted materials is the propriety of that use. This factor asks the question, “Was the use of the copyrighted material, under the circumstances, ethical and equitable?” To illustrate, the courts have held that verbatim copying of another’s copyrighted materials without any attempt to obtain permission is an act of bad faith that precludes a fair use defense. 6 Similarly, use of copyrighted materials despite the copyright owner’s refusal to grant permission is an unethical practice that, some courts have held, precludes a finding of fair use.
Key point. A Copyright Office cites the following examples of activities that courts have regarded as fair use. “Quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observation, use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
B. The Nature of the Copyrighted Work
second factor
The second factor to be considered in deciding whether or not a particular use of a copyrighted work is a fair use is “the nature of the copyrighted work.” This factor recites the basic principle that the nature of a copyrighted work is a relevant consideration in assessing whether another person’s reproduction of some or all of its contents can constitute a fair use. To illustrate, compilations of factual materials (e.g., dictionaries, encyclopedias) are obviously more conducive to fair use than certain other works. The House Report to the Copyright Act of 1976 states that “the scope of the fair use doctrine should be considerably narrower in the case of newsletters than in that of either mass-circulation periodicals or scientific journals. The commercial nature of the user is a significant factor in such cases: Copying by a profit-making user of even a small portion of a newsletter may have a significant impact on the commercial market for the work.” 7
Further, the Senate Report on Copyright Act of 1976 provides that “textbooks and other material prepared primarily for the school markets would be less susceptible to reproduction for classroom use than material prepared for general public distribution.” 8
The Senate Report also provides that “a key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is ‘out of print’ and unavailable for purchase through normal channels, the user may have more justification for reproducing it than in the ordinary case….” 9
Out-of-print works
Out-of-print works
What about out-of-print works? Obviously, if copyright protection has expired, then such works may be used without limitation. If an out-of-print work is still protected by copyright, then it cannot be copied or otherwise used without limitation. However, the scope of fair use is broader with out-of-print works. Consider the following: (1) A congressional committee report to the Copyright Act of 1976 states that “a key, though not necessarily determinative factor in fair use is whether or not the work is available to the potential user. If the work is out of print and unavailable for purchase through normal channels, the user may have more justification for reproducing it.” 10 (2) Several courts have concluded that the scope of fair use is broader with out-of-print works. 11
Example. Marty wants to use a portion of a copyrighted work in an article that he is writing. The copyright in the copyrighted work has not expired, but the work has been out of print for a number of years. The fact that a work is out of print does not mean that it is in the public domain and available for use by anyone without limitation. So long as the copyright has not expired, the copyright owner continues to enjoy all of the exclusive rights described in section 106, including reproduction in whole or in part. As a result, Marty must be concerned about the legal consequences of his action. However, in close cases; the fact that the copyrighted work is out of print may give Marty “more justification for reproducing it” than had the work still been available.
C. The Amount and Substantiality of the Portion Used
third factor
The third factor to be considered in deciding whether or not a particular use of a copyrighted work is a fair use is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This factor asks the question, “How much of the copyrighted work was used?” Obviously, the more of a copyrighted work that is used, the less likely the use will be considered a fair use. Conversely, the less of a copyrighted work that is used, the more likely that the use will be considered a fair use. One thing is clear—verbatim or nearly verbatim reproductions of an entire copyrighted work will almost never be deemed a fair use. 12
Some courts have held that in determining the amount and substantiality of the copyrighted work that is used, qualitative as well as quantitative considerations are relevant. That is, one should compare not only the actual physical percentage of the copyrighted work that is used, but also the significance of that portion in a qualitative sense to the whole. To illustrate, the United States Supreme Court has held that reproduction of a mere 200 words out of a 200,000-word copyrighted work did not constitute fair use, since the reproduced materials, while insignificant in terms of quantity, were very significant in terms of quality since they constituted the “heart of the work.” 13
Example. Joan is the music director at her church. She makes a transparency of a copyrighted song, reproducing both the music and lyrics. The transparency is used during morning worship services. Since this reproduction constitutes a verbatim reproduction of the entire copyrighted work, it is very doubtful that it will constitute fair use.
Example. Same facts as the preceding example, except that Joan reproduces only the lyrics, and not the music, of a copyrighted work. The lyrics comprise a substantial part of a copyrighted musical work, both quantitatively and qualitatively. As a result, it is doubtful that such a reproduction would be excused on the basis of the fair use defense. However; since the reproduction is not verbatim or nearly verbatim, the other three fair use factors should be considered.
Example. Jim frequently quotes biblical encyclopedias in articles that he writes for religious periodicals. The courts generally have held that the scope of fair use is greater when an informational work, such as an encyclopedia, is involved. Of course, one cannot automatically conclude that use of informational works constitutes fair use, even if credit is given to the source of the quotations. The other three fair use factors must be considered, as well as the amount and substantiality of the material actually used.
Key point. The courts have found that reproductions of the following amounts were insubstantial enough to be permissible fair use: (1) 5-8 percent, amounting to no more than a few pages in length; 14 (2) 4.3 percent; 15 (3) a parody of 29 seconds of a 40-minute copyrighted musical work, consisting of 6 out of a total of 38 bars of music; 16 (4) less than 1 percent, with the copied material being used primarily for informational purposes; 17 (5) 4-3 percent. 18
Key point. The courts have found that reproductions of the following amounts were substantial enough to constitute copyright infringement and were not fair use: (1) a commercial printer made “course packs” for college students that consisted of reproductions of 5-30 percent of the authors’ original works; 19 (2) 52 percent of a copyrighted letter; 20 (3) 25-30 percent of a copyrighted work was copied verbatim, or through close paraphrasing, and the copied portion was the essence of the copyrighted work. 21
D. The Effect of the Use upon the Potential Market for or Value of the Copyrighted Work
fourth factor
The fourth factor to be considered in deciding whether or not a particular use of a copyrighted work is a fair use is “the effect of the use upon the potential market for or value of the copyrighted work.” It must be emphasized that actual reduction in sales of the copyrighted material is not required to negate a claim of fair use. The United States Supreme Court has stated that all that is necessary is “proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists.” 22
Key point. A federal appeals court, in addressing the application of the fourth fair use factor in a case involving the alleged fair use of a church’s religious publication, made the following observations: “This case presents a novel application of the fair use doctrine where the copyright owner is a not-for-profit organization. As might be expected, published case law deals with works marketed for profit. However, it cannot be inferred from that fact that the absence of a conventional market for a work, the copyright to which is held by a nonprofit, effectively deprives the holder of copyright protection. If evidence of actual or potential monetary loss were required, copyrights held by nonprofits would be essentially worthless. Religious, educational and other public interest institutions would suffer if their publications invested with an institution’s reputation, and goodwill could be freely appropriated by anyone. The statute by its terms is not limited to market effect but includes also ‘the effect of the use on the value of the copyrighted work….’ [C]opying for noncommercial purposes may impair the copyright holders ability to obtain the rewards that Congress intended him to have. Those rewards need not be limited to monetary rewards; compensation may take a variety of forms…. [The infringer’s] distribution of unauthorized version of [the text] harms [the church’s] goodwill by diverting potential members and contributions from [it].” 23
the “different function” test
The four fair use factors summarized above provide only general guidance. In some cases, it is very difficult to determine whether a particular use of copyrighted material constitutes a fair use. Nevertheless, such a determination is critical, since a finding of fair use will avoid a claim of copyright infringement. Because of the importance of this issue, the courts have sought to provide additional clarification in resolving the fair use issue. A number of courts have formulated the following rule—a reproduction, even if substantial, of a copyrighted work may still constitute fair use if it performs a different function than the copyrighted work. To illustrate, one court held that the reproduction of the lyrics of a professional football team’s 8-line theme song in a magazine article describing the history of the franchise was a noninfringing fair use. The court observed that the article that appeared in the magazine “was not intended to be a musical reproduction, nor was it related in any way to any musical endeavor. No element of competition was present between the article and the copyrighted song…. [I]t is safe to say that where the later work differs greatly in nature, scope, and purpose from the original, a larger liberty in making quotations and extracts will be permitted than in cases where the respective works are more or less competitive.”24 Similarly, a national magazine’s publication of the lyrics to another chorus in an article paying tribute to a deceased actress was found to be a fair use for the same reasons, 25 as was reproduction of chorus lyrics in a humor magazine. 26
In all of these cases, reproduction of the entire lyrics of a copyrighted song was held to be noninfringing fair use because such use served an entirely different function or purpose from the copyrighted musical work, and “had neither the intent nor the effect of fulfilling the demand for the original.” The magazine articles were not intended to be music, or to compete with sales of the copyrighted works. In both cases, the courts indicated that it was extremely unlikely, if not impossible, that anyone would purchase the magazines in order to avoid purchasing copies of the copyrighted music. Magazine articles, though they contain the lyrics of copyrighted music, are sufficiently different in function and purpose from the music that such reproduction may in some instances constitute fair use.
chorus lyrics
However, it must be emphasized that not every reproduction of lyrics to copyrighted songs will amount fair use. The reproduced lyrics must in fact serve a totally different function than the music itself. For example, in one case, a publisher reproduced the chorus lyrics of two famous copyrighted songs in songsheet pamphlets, maintaining that the reproduction of only chorus lyrics of copyrighted songs was so trivial in nature and amount as to constitute noninfringing fair use. The court found such reproductions to be an infringement, and rejected the publisher’s claim that its reproductions constituted fair use. Though only the chorus lyrics were reproduced (and not the regular verse lines or music), the court found that “the chorus of a musical composition may constitute a material and substantial part of the work and it is frequently the very part that makes it popular and valuable.” 27 Similarly, another court found the reproduction of chorus lyrics in a song sheet magazine to be an infringement rather than fair use, since the reproduction “met the same demand on the same market” as the original. 28 The courts in each of these two cases gave a narrow interpretation of fair use because the function served by the infringing use directly satisfied a function that was served by the copyright owner’s sheet music.
Example. A church music director copies only the lyrics of a copyrighted song onto a transparency for use during worship services. The music director believes that this practice constitutes a permissible fair use of the copyrighted music. The transparency made by the church has the effect of fulfilling the demand for the original copyrighted work. Stated another way, it fulfills the same function as the original. According to the “function” or “purpose” test discussed above, such a use cannot be noninfringing fair use. This test is not a substitute for the four fair use factors, but it is helpful in resolving close cases.
The courts have given the principle of fair use its broadest effect when the copyrighted material is reproduced for purposes of criticism, review, or comment, though substantial reproduction of copyrighted material is not necessarily permitted even for such purposes.
church practices
There is little doubt that many reproductions of copyrighted materials by churches will fail to constitute noninfringing fair use. Certainly any verbatim copying of an entire work will almost never constitute fair use. Examples of this type of copying include the duplication of a musical work for members of the choir, a bulletin insert, a soloist, an accompanist, an instrumental group, or for use as a transparency or slide. Even copying of a significant portion (in terms of either quantity or quality) of a copyrighted work ordinarily will fail to constitute noninfringing fair use. An example here would be the copying of only the lyrics (and not the melody) of a copyrighted chorus or hymn. In all of these cases, a finding of fair use will be unlikely because (1) such acts of copying fail the “productive purpose test” since they constitute mere reproductions of a work in order to use it for its intrinsic purpose; (2) the nature of the work involved does not suggest a broad definition of fair use; (3) the amount of copyrighted material that is copied is significant in terms of both quantity and quality; (4) similar acts of copying by other churches would “adversely affect the market for or value of the copyrighted work.” In other words, none of the four fair use factors ordinarily will support a finding of fair use.
Example. A federal appeals court ruled that the use of several extended quotations of a religious leader reproduced without permission to an uncomplimentary biography constituted fair use. The court evaluated each of the 4 “fair use factors” and concluded that all of them supported the finding of fair use. With regard to the first factor, the court concluded that biographies, and particularly critical biographies, generally constitute fair use. The proposed book used quotations from the religious leader’ published writings “or the entirely legitimate purpose of making his point that [the leader] was a charlatan and his church a dangerous cult.” While the author no doubt expected to make a profit, this was a secondary purpose. As to the second factor, the court again emphasized that the proposed book was a biography, and that biographies generally constitute fair use. The court observed that “biographies, of course, are fundamentally personal histories and it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from such works.” The third fair use factor asks how much of the copyrighted work is quoted—both in terms of quantity and quality. The court concluded that only small portions of several works were quoted, rather than larger selections of any one work. Further; the portions quoted were not “key portions” of any of the books. The court concluded that the fourth factor led to a finding of fair use, since the biography would have little if any impact on the sale of the copyrighted works. In conclusion, the court observed: “The book is a critical biography, designed to educate the public about [the deceased religious leader], a public figure who sought public attention, albeit on his own terms; the book quotes from merely a small portion of [his] works and from only those that have been published; and, it will cause no adverse impact protected by the copyright law on the market for [the copyrighted] writings. In these circumstances, we conclude that the book’s use of passages from [the copyrighted] works is protected fair use.” 29
Example. Pastor Larry is the music minister at his church. He purchases a single copy of a copyrighted song and duplicates a copy for each of the 20 members of the church choir. Mary is the copyright owner of the song. Pastor Larry claims that his duplication of the music constitutes fair use, so it cannot be copyright infringement since it is the only one of Mary’s works that the church has ever duplicated, and the minimal reproduction of 20 copies had no effect at all on the potential market for or value of the copyrighted work. This argument is incorrect. To negate a fair use claim, the copyright owner need not prove actual economic damage. Rather, all that is necessary is proof that if Pastor Larry’s practice were to become widespread, it would adversely affect the potential market for the copyrighted work. Certainly, Mary would be able to make such a claim. Again, this will not necessarily negate Pastor Larry’s fair use claim, since the other three fair use factors must be considered as well.
Example. Herbert W. Armstrong, the founder of the Worldwide Church of God (WCG), wrote a 380-page book entitled Mystery of the Ages. The copyright of the book was in the Church’s name. After Armstrong’s death, the Church retired the book from further publication and distribution for several reasons, including the fact that the Church’s positions on various doctrines (such as divorce, remarriage, and divine healing) had changed. Following Armstrong’s death, a new religious organization (Philadelphia Church of God, or PCG) was founded that claimed to follow his teachings. This new church insisted that Armstrong’s book was central to its religious practice and was required reading for all members hoping to be baptized. Until 1997 PCG relied on existing copies of Armstrong’s book, but then began making thousands of verbatim copies of the entire text for its religious purposes. PCG ignored WCG’s demand that it cease infringing its copyright. WCG thereafter sued PCG, claiming that its unauthorized duplication of the Armstrong book constituted copyright infringement. PCC argued that its actions were permitted by the first amendment guaranty of religious freedom, and constituted permissible “fair use” of the Armstrong book. A federal appeals court ruled that PCG’s duplication of the book was not permissible fair use. The court noted that a copyright owner has the exclusive right to reproduce and distribute copies of a copyrighted work. Since WCG owned the copyright in the Armstrong book, it had the exclusive right to copy and distribute it. Further, this right “is not diminished or qualified by the fact that WCG is a not-for-profit organization [or by] the religious nature of its activity.” The court then addressed each of the four use “factors” mentioned in the Copyright Act. The first factor calls for consideration of “the purposes and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The court concluded that this factor did not support a finding of fair use, despite PCG’s claim that its acts of copying was not “for profit.” It concluded, “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” The court noted that copying of the Armstrong text “unquestionably profits PCG by providing it at no cost with the core text essential to its members’ religious observance, by attracting…new members who tithe ten percent of their income to PCG, and by enabling the ministry’s growth.” The second factor looks at “the nature of the copyrighted work.” The court noted that the scope of fair use is broader when a “factual” or informational work is involved. It concluded that the “creativity, imagination and originality” embodied in the Armstrong text “tilt the scale against fair use.” The third factor looks at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The court noted that PCG copied the entire text verbatim, and that “we have found no published case holding that fair use protected the verbatim copying, without criticism, of a written work in its entirety.” Nor did the religious nature of the work support a different conclusion, since PCG used the text as “a central element of its members’ religious observance” and therefore “a reasonable person would expect PCG to pay for the right to copy and distribute [the text]. The fourth factor considers “the effect of the use upon the potential market for or value of the copyrighted work.” The court noted that the WCG planned on publishing an annotated edition of Armstrong’s text to reach out to those familiar with Armstrong’s teachings and those in the broader Christian community. PCG ‘s distribution of its unauthorized version of the text “thus harms WCG’s goodwill by diverting potential members and contributions from WCG.” 30
Example. A nonprofit agency that provided services to public schools created a “library” of educational videos that it copied from a public television station and made available to several schools. The publisher of many of the programs that were copied sued the agency for copyright infringement. The agency insisted that its practices were a legitimate fair use of the copyrighted programs. A court disagreed, noting that the agency’s “systematic practice” of making off-the-air videotapes of copyrighted work and the making of numerous copies of those works did not constitute fair use. 31
Example. A federal court in New York ruled that a company’s practice of making several copies of newsletters to distribute among employees constituted copyright infringement. The company subscribed to several newsletters and journals, and its employees frequently made photocopies of articles in these publications. Making copies “freed” the original publication to circulate among other employees; further, copying permitted employees to keep personal copies of the articles that they could take home and read at their own convenience, and that they could “mark up” without defacing the original. The court evaluated each of the four “fair use factors” and concluded that they did not support a finding of fair use. With regard to the first factor, the court concluded that the purpose and character of the copying was solely to duplicate the original articles, and that this objective is simply not compatible with fair use. As to the second factor, the court noted that “if cheap [copies] could be freely made and sold at a fraction of the subscription price, [the publisher] would not sell many subscriptions, it could not sustain itself, and articles of this sort would simply not be published.” The third fair use factor asks how much of the copyrighted work is quoted, both in terms of quantity and quality. The court noted that entire articles and issues were copied, and that this was inconsistent with fair use. Finally, the court concluded that the fourth factor (market effect) did not support a finding of fair use. 32
6.2 Guidelines for Classroom Copying in Not-for-Profit Educational Institutions
educational copying
One of the most common fair use issues concerns the reproduction of copyrighted materials for educational purposes. In 1975, negotiating teams representing authors, publishers, and the “Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision” met informally in an attempt to reach a “meeting of the minds” concerning permissible educational uses of copyrighted material. The parties reached an agreement, known as the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals. The House Report on the Copyright Act of 1976 reprinted the Agreement in full, 33 and further noted that the guidelines set forth in the Agreement “are a reasonable interpretation of the minimum standards of fair use.” The guidelines contained in the Agreement are set forth below. It must be emphasized that the stated purpose of the guidelines was “to state the minimum and not the maximum standards of educational fair use,” and that the parties acknowledged that “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.” The guidelines apply only to educational copying of literary works (books, articles, poetry, charts, etc), and not to music.
“fair use guidelines” for classroom copying
Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals
I. Single Copying for Teachers
A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay, or short poem, whether or not from a collective;
D. A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper;
II. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:
A. The copying meets the test of brevity and spontaneity as defined below;
B. The copying meets the cumulative effect test as defined below; and
C. Each copy includes a notice of copyright [Note: it is unclear whether or not the adoption of the Berne Convention eliminates this requirement. Accordingly, it should still be followed.]
Definitions of brevity, spontaneity, and cumulative effect
Brevity
(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or (b) from a longer poem, an excerpt of not more than 250 words.
(ii) Prose: (a) Either a complete article, story, or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words.
[Each of the numerical limits stated in “i” and “ii” above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
(iii) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.
(iv) “Special” works: Certain works in poetry, prose, or in “poetic prose” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience and fall short of 2,500 words in their entirety. Paragraph “ii” above notwithstanding such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10 percent of the words found in the text thereof, may be reproduced.
Spontaneity
(i) The copying is at the instance and inspiration of the individual teacher; and
(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative Effect
(i) The copying of the material is for only one course in the school in which the copies are made.
(ii) Not more than one short poem, article, story, essay, or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.
[The limitations stated in “ii” and “iii” above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]
III. Prohibitions as to I and II Above
Notwithstanding any of the above, the following shall be prohibited:
A. Copying shall not be used to create, replace, or become a substitute for anthologies, compilations, or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
B. There shall be no copying of or from works intended to be “consumable” in the course of study or of teaching. These include workbooks, exercises, standardized tests, test booklets, answer sheets, and other similarly consumable material.
C. Copying shall not:
(a) substitute for the purchase of books, publishers’ reprints, or periodicals;
(b) be directed by higher authority;
(c) be repeated with respect to the same item by the same teacher from term to term.
D. No charge shall be made to the student beyond the actual cost of the photocopying.
The Guidelines for Classroom Copying in Not-for-Profit Educational Institutions are illustrated in the following examples.
Example. Randy, a teacher at a church-operated private school, copies a chapter from a reference book in preparation for teaching. This reproduction is considered to be a noninfringing fair use under the guidelines.
Example. Same facts as the preceding example, except Randy makes copies of the chapter for each of the 30 students in his class. This act of copying is not necessarily noninfringing fair use. According to the guidelines, it will be fair use only if it meets the tests of brevity and spontaneity, meets the cumulative effect test, and each copy includes a notice of copyright. Stated another way, Randy’s act of copying is permissible fair use if (1) the chapter copied contains not more than 1,000 words or 10 percent of the total work, whichever is less (a minimum of 500 words is allowed); (2) the decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission; (3) the copying is for only one course, and not more than two excerpts (three in the case of the same collective work) from the same author are copied during one class term, and no more than nine acts of multiple copying are performed for all works and authors for any one course during any class term; (4) all copies bear a notice of copyright, indicating the copyright owner’s name, the year the work was published, and the word “copyright,” the abbreviation “copr.”, or the copyright symbol ©.
Example. Same facts as the preceding example, except that Randy would like to make a copy of an article in a periodical for each member of his class. The copying in this case is permissible fair use, according to the guidelines, only if it satisfies the four requirements listed in the preceding example, with the following modifications: (1) the article is less than 2,500 words, or, if more than 2,500 words, then only 1,000 words or 10 percent of the total work, whichever is less, may be copied (in any event a minimum of 500 words is allowed); (2) not more than one article of the same author may be reproduced during one class term (except in the case of news periodicals, newspapers, or the current news sections of other periodicals).
Example. Randy makes a copy of a chart from a news magazine for each of the 30 members in his class. This copying is permissible fair use only if it meets the tests of brevity and spontaneity, meets the cumulative effect test, and each copy includes a notice of copyright. Note that with regard to the requirement of brevity, the guidelines specify that a teacher is permitted to copy, for each member of a class, one chart per periodical issue. The other requirements are discussed in the preceding examples.
Example. Same facts as the preceding two examples. Is Randy free to make copies of the same article and chart for each member of his class during subsequent school terms? The guidelines provide that “copying shall…not be repeated with respect to the same item by the same teacher from term to term.”
Example. A Sunday School teacher would like to make copies of an article that appeared in a periodical for each member of her class. Do the guidelines apply to such a case? This question is not answered by either the guidelines themselves, or by court decisions. It is likely that the courts (and publishers) would apply the guidelines to the teaching activities of churches, since their application in this context is sensible, consistent with the purpose of the guidelines, and provides guidance and clarification that otherwise would be unavailable. Further, the House Report to the Copyright Act of 1976 specifies that “the same general standards of fair use are applicable to all kinds of uses of copyrighted material, although the relative weight to be given them will differ from case to case.” On the other hand, it could be argued that the guidelines were designed solely for nonprofit educational institutions, and that Sunday Schools are integral parts of churches, which are primarily religious rather than educational in nature. At this time, it cannot be said with certainty that the guidelines apply to the teaching activities of churches, but this certainly seems to be the better and more reasonable conclusion.
Example. A federal court in California ruled that an instructor who made copies of copyrighted religious books and tapes for instructional proposes was guilty of copyright infringement. The court rejected the instructor’s defense of “fair use.” It concluded that she failed all four fair use factors. The purpose of the copying was commercial (the copied materials were sold to students); the nature of the copyrighted reworks were creative and thus entitled to a higher degree of protection; the amount copied (the entire copyrighted works) was substantial; and, the impact of the copying on the copyright owner’s rights was significant since the instructor’s act of unauthorized copying “fulfilled the demand for the original works and [will] diminish or prejudice their potential sale.” Finally, the court rejected the instructor’s claim that her copying met the standards for “fair use” as set forth in the so-called “fair use guidelines” for classroom copying of educational materials. The guidelines apply only to educational copying of literary works (books, articles, poetry, charts, etc.). Among other things, the guidelines specify that a teacher may make a single copy of a chapter from a book or an article from a periodical for use in teaching or in preparing to teach. The court observed that the instructor’s copying in this case “was not restricted to one copy for her own use in teaching” and therefore was not eligible for a fair use exemption. The guidelines also permit teachers to make multiple copies of a copyrighted work for classroom use, but several restrictions apply. For example, a teacher may make multiple copies of an entire article of less than 2,500 words or an excerpt from a longer work so long as the excerpt is not more than the lesser of 1, 000 words or 10 percent of the entire work. Further, the decision to use the work must be “spontaneous” in the sense that it is so close in time to the date the work is to be used that it would be unreasonable to expect a timely reply to a request for permission to reproduce it. There also are strict limitations on the number of times this exception can be used. The court concluded that this exemption did not apply: [T]he undisputed evidence shows [that the instructor’s] co/lying was not limited and spontaneous, but was extensive and methodical, and consisted of copying from the same author, time after time. This is clearly not within the letter or spirit of the congressional guidelines.” 34
Example. A federal appeals court ruled that a copyshop violated the copyright law by making “coursepacks” for sale to university students. The copyshop copied substantial sections of copyrighted texts, bound them into coursepacks, and sold them to students who needed them to fulfill reading assignments. The court ruled that none of the four fair use factors supported a finding of fair use in this case. The purpose and character of the unauthorized use was commercial exploitation. The nature of the copyrighted works was “creative” and “expressive.” The amount of material copied from copyrighted texts ranged from 5 percent to 30 percent of the entire texts. Such percentages “are not insubstantial,” the court concluded. Fourth, the market for the copyrighted texts would be significantly affected if copyshops routinely made unauthorized copies of copyrighted texts. The court noted that the Supreme Court has ruled that “one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.” It concluded that “if copyshops across the nation were to start doing what the [copyshop has] been doing here…the potential value of the copyrighted works of scholarship…would be diminished accordingly.” The court acknowledged that fair use “guidelines” were adopted by a coalition of authors, publishers, and educators in 1976 to assist in defining fair use in the academic context. These guidelines were accepted by congressional committees as part of their understanding of fair use. However, the court concluded that the copyshop’s activities were “light years away from the safe harbor of the guidelines.”
The guidelines specify that “coping shall not…substitute for the purchase of books, publishers’ reprints, or periodicals.” This statement seemingly contradicts every other provision in the guidelines. It makes sense only if read together with the “spontaneity” requirement that “the inspiration and decision to use [a] work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” In other words, if the article or chart that a teacher would like to copy for each member of a class appeared in a magazine a number of months or years previously, then the teacher cannot go out and purchase additional copies. Rather, he or she would purchase reprint copies from the publisher, a process that could take several weeks. This obviously would often destroy the teacher’s objective in using the work, particularly if that objective was “spontaneous.”
Key point. A separate set of guidelines for the use of multimedia materials by teachers has never been finalized.
6.3 Guidelines for Educational Uses of Music
Shortly after the guidelines for books and periodicals were formulated, representatives of music publishers and music educators met to draft guidelines relative to music. It must be emphasized that the stated purpose of the guidelines, as with the guidelines for books and periodicals, was “to state the minimum and maximum standards of educational fair use.” The parties acknowledged that “there may be instances in which copying which does not fall within the guidelines…may nonetheless be permitted under the criteria use.” Nevertheless, the House Report on the Copyright Act of 1976 reprinted the guidelines in full, 36 and further noted that the guidelines “are a reasonable interpretation of the minimum standards of fair use. The guidelines are set forth below:
Guidelines for Educational Uses of Music
A. Permissible Uses
“fair use guidelines” for music
1. 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 coarse.
2. (a) For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not compromise a part of the whole which would constitute a performance unit such as a section, movement, or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.
(b) For academic purposes other than performance, a single copy of an entire performable unit (selection, movement, aria, etc.) that is (1) confirmed by the copyright proprietor to be out of print, or (2) unavailable except in a larger work, may be made by or for a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class.
3. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
4. A single copy of recordings of performances by students may be made for evaluation of rehearsal purposes and may be retained by the educational institution or individual teacher.
5. A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher, (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)
B. Prohibitions
1. Copying to create, replace, or become a substitute for anthologies, compilations, or collective works.
2. Copying of or from works intended to be “consumable” in the course of study or of teaching such as workbooks, exercises, standardized tests, answer sheets, and like material.
3. Copying for the purpose of performance, except as in A(1) above.
4. Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.
5 Copying without inclusion of the copyright notice which appears on the printed copy. [Note: it is unclear at this time whether or not the adoption of the Berne Convention eliminates this requirement. Accordingly, it should still be followed.]
The Guidelines for Educational Uses of Music are illustrated in the following examples.
Example. Diane teaches music at a church-operated school. The school choir is scheduled to give a performance on October 1. A few days before, several copies of the music are misplaced and cannot be located (all copies had been purchased by the school). Diane makes substitute copies on the school’s duplicating equipment. This act of copying constitutes noninfringing fair use so long as Diane purchases replacement copies in due course.
Example. Diane makes a single copy of a section of a copyrighted musical work for use in her class preparation. No copies are made available to students. If the larger work which contained the copied section is confirmed by the copyright owner to be out of print, or if the section copied is not available except as a part of the larger work, then Diane’s act of copying is permitted by the guidelines.
Example. Steve is a minister of music. He purchases a single copy of choral music that he reproduces on church duplicating equipment for each of the 30 members of the church choir: This practice clearly is not authorized by the guidelines, assuming that they apply, since: (1) such reproduction may not constitute “academic” purposes; (2) more than 10 percent of the work is duplicated; (3) it probably constituted “copying for the purpose of substituting for the purchase of music,” which generally is never a permissible use; and (4) it probably constitutes prohibited “copying for the purpose of performance.”
Example. Steve purchases 30 copies of a copyrighted choral work for the church choir. The work is musical only, without lyrics. Steve pencils in lyrics that he created himself on all 30 copies. This action violates the guidelines.
Example. Steve makes unauthorized transparencies of the choruses of several copyrighted religious songs and uses them during choir rehearsals and worship services. He claims that such uses are authorized by the guidelines. Steve’s conclusion is incorrect for the same four reasons mentioned in the preceding example. Of course, the guidelines themselves acknowledge that “[t]here may be instances in which copying which does not fall within the guidelines…may nonetheless be permitted under the criteria of fair use.” However, as noted previously in this chapter, it is very doubtful that the unauthorized fabrication of a transparency of the chorus of a copyrighted song could constitute a noninfringing “fair use” under the four factors described in section 107.
application to churches
Since both sets of guidelines discussed above are intended for the teacher and classroom contexts, application to church activities remains unclear. Certainly, they would apply to the activities of church-operated private schools, and a good case can be made that they should apply to church educational programs generally. Note, however, that the guidelines are very restrictive, and often will run counter to established church practices. Churches hoping that the guidelines will give them greater freedom to reproduce copyrighted materials ordinarily will be disappointed. If the guidelines do not apply to a particular church activity, then the question of fair use will be determined according to the four fair use factors mentioned in section 107 and summarized above.
Example. A church music director makes transparencies of copyrighted songs for use in worship services, and also makes copies of copyrighted music for use in choir rehearsals and performances. It is doubtful that the music guidelines would apply in the case of the transparencies, since it is unlikely that a court would construe congregational singing in a church service to constitute a “classroom” at a nonprofit “educational” institution. It is more likely, though not certain, that the guidelines would apply in the context of choir rehearsals. The point is this—even if the guidelines would apply in the context of church choir rehearsals, they will certainly not sanction or excuse the practice of reproducing entire copyrighted musical works. And, if the guidelines do not apply (as in the case of worship services), a church’s practices will be judged according to the four fair use factors mentioned in section 107. As noted earlier in this chapter, the fabrication of transparencies of copyrighted music or lyrics ordinarily will not be deemed noninfringing fair use under an objective application of the four factors.
One court has held that a choir director’s duplication of 48 copies of a copyrighted musical work (the hymn “My God and I”) for use by his choir did not constitute noninfringing fair use.37 In rejecting the director’s claim of fair use, the court observed that “[w]hatever 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.”
6.4 Reproductions by Libraries and Archives
Section 108 provides that under certain conditions it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce or distribute more than a single copy of a work, provided that (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage, (2) the collections of the library or archives are open to the public or are available to researchers other than those affiliated with the library or archives, and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy.
The authorized reproductions are specified in sections 108(b) through 108(d). Section 108(b) authorizes the reproduction of up to three copies of an unpublished work solely for purposes of preservation and security, or for research use in another library if the work that is reproduced is currently in the collections of the first library and any copy made in digital format is not further distributed in that format or made available to the public in that format outside the premises of the library or archives.
Section 108(c) permits the reproduction of a published work solely for the purpose of replacement of a copy that is damaged, deteriorating, lost, stolen, or in a format that has become obsolete, if the library has determined, after a reasonable effort, that an unused replacement cannot be obtained at a fair price and any such copy reproduced in digital format is not made available to the public in that format outside the premises of the library or archives. A format is obsolete if the machine or device needed to view a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
Section 108(d) authorizes reproduction of a copy of not more than one article or other contribution to a copyrighted collection or periodical issue, or of a copy of a small part of any other copyrighted work, at the request of a user or another library through an interlibrary loan request. The copy must become the property of the user, and the library must have no notice that the copy will be used for any purpose other than private study, scholarship, or research. Further, the library must display an appropriate warning (in at least 18-point type) in a location that would be clearly visible and legible to a casual observer at the place where reproduction orders are taken, and in print the warning in a box located prominently on the order form (in at least 8-point type). The warning prescribed by the Copyright Office is reproduced in Illustration 6-1.
Section 108(e) authorizes reproduction of a copy of an entire work under certain circumstances if it has been established that a copy cannot be obtained at a fair price if the copy becomes the property of the user and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, the “Warning Concerning Copyright Restrictions” notice reproduced in this section.
Section 108(f) exempts a library or archives, and its employees, from liability for the unsupervised use of duplicating equipment located on its premises, provided that the equipment displays a notice that the making of a copy may be subject to the copyright law. Unfortunately, neither section 108 nor the Copyright Office regulations specify the content of such a notice. While not directly applicable, the “Warning Concerning Copyright Restrictions” notice reproduced in this section probably would suffice. Section 108(f) also specifies that the protection accorded to libraries, archives, and their employees, does not extend to the person making the copies to the extent that such copying exceeds fair use.
Illustration 6-1
NOTICE: WARNING CONCERNING COPYRIGHT RESTRICTIONS
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.
Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.
This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.
Section 108(g) provides that the rights granted by section 108 extend only to the “isolated and unrelated reproduction of a single copy or phonorecord of the same material on separate occasions,” and that no authorization is given to the related or concerted reproduction of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time and whether intended for aggregate use by one individual or for separate use by the individual members of a group.
Section 108(h) specifics that during the last 20 years of any term of copyright of a published work, a library or archives may reproduce, distribute, display, or perform in facsimile or digital form a copy of such work (or portions of it) for purposes of preservation, scholarship, or research, if the library or archives has first determined, on the basis of a reasonable investigation, that the work is not subject to normal commercial exploitation, a copy cannot be obtained at a reasonable price, and the copyright owner (or its agent) has not provided notice that either of the previous two conditions applies.
Section 108(i) specifies that the rights of reproduction under section 108 do not apply to a musical work or audiovisual work. Of course, these kinds of works continue to be protected under the concept of fair use.
Key point. Section 108 will have the greatest relevance to churches that operate a private school which contains a library.
Example. A church music director routinely makes copies of copyrighted musical works for her office “library.” Even if there is no further duplication of these works, this practice is not authorized by section 108 since musical works are not covered under section 108 and none of the protections provided under section 108 apply to such a practice.
Example. A church operates a private school that contains a library. A duplicating machine located in the library is available to students. The library should post the “Warning Concerning Copyright Restrictions” notice that is reproduced in this section on or near the duplicating machine and on any written order form. Church leaders should be sure that the text of the notices meets the requirements summarized in this section.
6.5 Displays
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.” Section 109(d) provides further that the privilege granted under section 109(c) does not, unless authorized by the copyright owner, “extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.”
slides and transparencies
This section is of special relevance to many churches, and particularly to those that use transparencies and slides of copyrighted music in the course of worship services. Recall that one of the exclusive rights of a copyright owner is the right to display a copyrighted work publicly. Section 109(c) limits that exclusive right by adopting the general principle that the lawful owner of a copy of a copyrighted work should be able to put the copy on public display without the consent of the copyright owner.
The House Report to the Copyright Act of 1976 specifics that a copyright owner’s exclusive right of public display
would not apply where the owner of a copy wishes to show it directly to the public, as in a gallery or display case, or indirectly as through an opaque projector. Where the copy itself is intended for projection, as in the case of a photographic slide, negative, or transparency, the public projection of a single image would be permitted as long as the viewers are “present at the place where the copy is located”….[T]he public display of an image of a copyrighted work would not be exempted from copyright control if the copy from which the image was derived were outside the presence of the viewers…. Moreover, the exemption would extend only to public displays that are made “either directly or by the projection of no more than one image at a time.”
The House Report specifies that section 109(d) qualifies the privilege granted in section 109(b) “by making it clear that [it does] not apply to someone who merely possesses a copy or phonorecord without having acquired ownership of it. Acquisition of an object embodying a copyrighted work . . . carries with it no privilege to…display it publicly under section 109(b).”
Let’s illustrate the meaning of this important provision with some examples.
Example. Kelley is a church music director. She purchased a transparency of a copyrighted song that is projected on a screen during morning worship services as an aid to congregational singing. While this practice constitutes a “public display” of the copyrighted work, and ordinarily the copyright owner has the exclusive right to publicly display a copyrighted work, section 109(c) permits the projection of the transparency by Kelley since (1) the copy (transparency) was lawfully acquired, (2) it is displayed by projection at the place where the viewers are physically present, and (3) only one image at a time is projected.
Example. Same facts as the preceding example, except that Kelley purchased a slide. The answer would be the same.
Example. Instead of purchasing a transparency, Kelley makes one herself by printing the lyrics of a copyrighted song onto a piece of paper and then making a transparency of the copy on church duplicating equipment. The display of the transparency by means of projection during church worship services is not protected by section 109(c), since the copy that is being displayed by projection is not a “lawfully made” copy as required by section 109(c) and the House Report.
Example. Kelley purchases a booklet containing 20 copyrighted songs. She projects these songs on a screen during choir rehearsals and church services by means of an opaque projector. This practice is permitted by section 109(c), since it constitutes the display, by projection, of no more than one image at a time, of a lawfully made copy to viewers present at the place where the copy is located.
Example. A church purchases a reproduction of a copyrighted painting that is placed on a wall in the church. This “public display” is authorized by section 109(c).
Example. A church’s youth pastor rents a video tape for use at an evening youth meeting. The tape is rented from a local video outlet, and is licensed for private home viewing only. Section 109(c) does not protect the showing of the video to the church youth group, since section 109(d) provides that the privilege granted in section 109(c) does not extend to a person who obtains possession of a copyrighted work through rental or lease.
6.6 Face-to-Face Teaching Activities
Section 110(1) of the Copyright Act provides that the following activities are not an infringement upon a copyright owner’s exclusive rights:
[P]erformance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of [an] audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.
There are a number of important elements to note in section 110(1):
performances and displays only
First, it exempts from copyright infringement only performances and displays of copyrighted materials in the course of face-to-face teaching activities at an educational institution. Reproduction and duplication of copyrighted materials are not exempted.
Second, the exemption applies only to face-to-face teaching activities at a nonprofit educational institution, in a classroom or other similar place devoted to instruction. While church-operated schools ordinarily would satisfy this requirement, there is some question whether church educational activities would. Certainly a church’s formal education program (e.g. a Sunday School) would be the most likely church activity to qualify under section 110(1), but there are no authoritative rulings or interpretations at this time that would make this conclusion free from doubt.
Third, the exemption contained in section 110(1) does not apply if the copy being displayed or performed was not lawfully made, and the person responsible for the performance or display knew or had reason to know that the copy was not lawfully made. This important provision will be illustrated by the following examples:
Example. A church’s minister of education makes copies of copyrighted material for use in the church Sunday school program. This practice is not authorized by section 110(1), since that section authorizes only certain performances and displays, and not reproductions. The church of course can still maintain that its practice is justified by the principle of fair use, as explained earlier in this chapter.
Example. A church music director makes copies of copyrighted music for use during choir rehearsals. Even if this can be considered “face-to-face teaching activities of a nonprofit educational institution,” the exemption provided by section 110(1) does not apply to reproductions. Rather, it exempts only certain performances and displays.
Example. A church’s music director purchases a single piece of sheet music containing a copyrighted song. Not wanting to violate the copyright law the director does not make physical copies for the choir but rather makes a transparency of the song using church duplicating equipment. The transparency is used during choir rehearsals. Is this practice authorized under section 110(1)? The answer is clearly no. Even if church choir rehearsals can be considered “face-to-face teaching activities of a nonprofit educational institution,” the exemption provided by section 110(1) does apply if the copy being displayed or performed was not lawfully made, and the person responsible for the performance or display knew or had reason to know that the copy was not lawfully made. This is probably the case here, since the music director probably will be deemed to have had reason to know that the copy (transparency) being displayed was not lawfully made. Note that the making of a transparency may be permitted by some copyright licenses. See section 6.10 in this chapter.
6.7 The Religious Services Exemption
As far as churches are concerned, section 110(3) ranks as one of the most important provisions in the entire Copyright Act. This section states that
the following are not infringements of copyright … performance of a nondramatic musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.
musical works of a religious nature
The exemption applies to “dramatico-musical” works of a “religious nature.” This language is intended to exempt certain performances of sacred music that might be regarded as “dramatic” in nature, such as oratorios, cantatas, and choral services. However, the exemption is not intended to cover performances of secular operas, plays, or motions pictures, even if they have an underlying religious or philosophical theme and take place in the course of religious services.
course of services
To be exempted under section 110(3), a performance or display must be “in the course of services.” This excludes activities at a place of worship that are for social, educational, fund raising, or entertainment purposes.
The exemption includes both performances of musical or dramatic works of a religious nature, or the display of a work, in the course of services at a place of worship or religious assembly.
Key point. The religious services exemption does not apply to the copying of religious music since copying is not a performance or a display.
displays
All displays are covered by the exemption, regardless of the nature of the work being displayed. However, the definition of “display” does not extend to the sequential showing of motion pictures and other audiovisual works.
place of worship
Since the performance or display must occur “at a place of worship or other religious assembly,” the exemption would not extend to religious broadcasts or other transmissions to the public at large, even where the transmissions were sent from the place of worship. On the other hand, as long as services are being conducted before a religious gathering, the exemption would apply if they were conducted in places such as an auditorium or outdoor theatre.
Key point. A federal court has observed that the religious services exemption is “a narrow exception to copyright protection,” and that the Copyright Act “narrowly limits the privilege accorded religious uses to performance of a … literary or musical work … or display of a work, in the course of services at a place of worship or other religious assembly.” The unauthorized copying and distribution of literature or music “falls outside of that narrow exception to copyright protection.” 38
Example. A publisher of religious music can prevent churches from copying or publishing its copyrighted works, even if the churches only used the copies in nonprofit religious services. Neither the religious element nor the nonprofit element of a performance protects illegal copying or publishing.
Example. Rachel sings a copyrighted sacred song as a solo during a morning worship service at First Church. Since this constitutes a performance of the song, and since the copyright owner alone has the exclusive right to publicly perform a copyrighted work, Rachel’s performance would constitute an infringement of copyright except for the exemption provided by section 110(3). Section 110(3) specifically provides that the performance of a musical work of a religious nature in the course of services at a place of worship or other religious assembly is exempt from copyright infringement. Therefore, neither Rachel nor the church has violated the copyright law.
Example. Same facts as the preceding example, except that the church broadcasts its morning worship services over a local radio station. The exemption provided by section 110(3) protects the live performance of the work in the course of the church service, but it does not extend to the radio transmission. The church should check with the radio station to be sure that it has a license that protects the transmission of the copyrighted music.
Example. Same facts as the two preceding examples, except that the church also prepares audio cassettes of its services for distribution to persons who were not able to attend the service. The exemption provided by section 110(3) does not extend to the making of audio tapes of the services in which copyrighted musical works were performed. The distribution of such tapes is governed by the compulsory license section of the copyright law (discussed later in this chapter).
Example. A church hosts a performance of the local symphony orchestra. The works performed during the concert include copyrighted contemporary musical works of a secular nature. The performance of these works is not protected from copyright infringement by section 110(3), although they may be protected under section 110(4), which is discussed later in this chapter.
Example. A church’s music minister makes copies of copyrighted music for the members of her choir. This practice is not excused by section 110(3), since it does not constitute either a performance or a display.
Example. A church’s music minister makes an unauthorized transparency of a copyrighted song and displays it on a screen during worship services. The making of the transparency is an infringement of copyright that is not protected by section 110(3), since it does not constitute a performance or a display.
Example. A youth pastor rents a video of a religious movie for use in an evening youth service. The showing of the video to the church youth group is an infringement of copyright if it were rented out only for private home viewing. Such an infringement is not excused by section 110(3) since it does not constitute either a performance or a display.
Example. During an overnight activity at church, a youth group watches a few programs on a television set brought by an adult sponsor. While the exemption available under section 110(3) will not apply, this activity is excused from infringement by section 110(5) of the Copyright Act, which exempts the mere reception in public of an ordinary radio or television receiving device of a kind commonly sold to members of the public for private use. This exemption assumes that the audience is not charged a fee to see the transmission.
6.8 The Nonprofit Performance Exemption
Section 110(4) contains a general exception to the exclusive right of a copyright owner to publicly perform his or her copyrighted work. It provides:
[P]erformance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, [does not constitute copyright infringement] if—(A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions; (i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and (ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and (iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.
Let’s consider a number of important aspects of this important exemption
requirements
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.
Example. A professional musical group agrees to conduct a performance at a church on a Saturday night. The group will perform several copyrighted religious songs of other composers. An admissions fee of $5 per person will be charged, and the group will receive a guaranteed fee of $1,000 for the performance. Will the performance of these copyrighted works be exempt from copyright infringement under section 110(3)? The exemption provided by section 110(3) probably will not apply. Section 110(3) exempts from copyright infringement the performance of a religious work in the course of a religious work in the course of a service at a place of worship. It cannot be safely assumed that a court would conclude that a Saturday evening performance was “in the course of services” at it place of religious assembly, especially if religious services were not ordinarily scheduled or conducted at such a time. The House Report to the Copyright Act of 1976 states that the exemption provided by section 110(3) does not include performances “at a place of worship that are for social, educational, fund raising, or entertainment purposes.” While it is possible that a court might regard such a performance to be in the course of a religious service, such a result cannot be safely assumed. If, on the other hand, the performance were conducted during a regularly scheduled morning or evening service, then there is much greater support for the applicability of section 110(3).
Example. Same facts as the preceding example. Assume that section 110(3) does not exempt the performance from copyright infringement. Will the performance be exempt from infringement under section 110(4)? The answer is no, since the performers will receive a fee for their performance. This result is not affected by a characterization of the compensation as a “donation” or “contribution” to the group.
Example. Same facts as the preceding two examples, except that no admissions fee will be charged, and the group will receive no compensation for its performance. Such a performance will qualify for exemption from infringement under section 110(4), since it is a nonprofit performance, the performers and promoters receive no compensation for the performance, and no admissions fee is charged.
Example. A musical group agrees to conduct a nonprofit performance of several copyrighted works at a church. The performance will not be conducted during a regularly scheduled service, but the group will receive no payment for its performance. An admissions fee of $5 per person will be charged, and all the proceeds will go toward a mission project of the church. The performance of a copyrighted work under these circumstances will not constitute a copyright infringement, so long as a copyright owner does not file a written notice of objection to the performance within seven days of the performance. As noted above, section 110(4) does not require the copyright owner to be apprised of an imminent performance of his or her work, and this fact renders the copyright owner’s “veto” power largely ineffective. As a result, it is possible that a court may limit the application of section 110(4) to persons and organizations that have notified a copyright owner in advance of a scheduled performance of his or her copyrighted work. Churches wishing to rely on the exemption provided under section 110(4) should consider giving the copyright owner or owners notice of an imminent performance.
6.9 Ephemeral Recordings
Section 112(c) provides that it is not an infringement of copyright for a nonprofit organization to make no more than one copy of a religious program containing performances of copyrighted musical works for each broadcast station carrying the program. The following conditions must be satisfied for this exemption to apply: (1) there is no charge for distribution of the copies; (2) none of the copies is used for any performance other than a single transmission by an organization possessing a license to transmit a copyrighted work; and (3) other than for one copy that may be preserved for archival purposes, the remaining copies must be destroyed within one year from the date the program was first transmitted to the public.
6.10 Compulsory Licenses
A. Background
Among the exclusive rights of a copyright owner are the rights to make copies of and distribute the copyrighted work. However, for copyright holders of nondramatic musical works, the exclusive rights of reproduction and distribution are limited by the compulsory license provisions of section 115 of the Copyright Act. Often referred to as the “mechanical license,” section 115 grants third parties a nonexclusive license to make and distribute “phonorceords” of nondramatic musical works. The license can be invoked once a nondramatic musical work embodied in a phonorecord is distributed “to the public in the United States under the authority of the copyright owner.” Unless and until such an act occurs, the copyright owner’s rights in the musical work remain exclusive, and the compulsory license does not apply. Once it does occur, the license permits anyone to make and distribute phonorecords of the musical work provided, of course, that they comply with all of the royalty and accounting requirements of section 115.
It is important to note that the mechanical license only permits the making and distribution of phonorecords of a musical work, and does not permit the use of a sound recording created by someone else. Persons claiming a compulsory license must either assemble their own musicians, singers, recording engineers, and equipment, or obtain permission from the copyright owner to use a preexisting sound recording. One who obtains permission to use another’s sound recording is eligible to use the compulsory license for the musical composition that is performed on the sound recording.
B. Application to Churches
tape recordings of church services
Can churches make and distribute tape recordings of worship services in which copyrighted music is performed? This is a significant concern of many churches, since it is a common practice for churches to make tape recordings of services available to members and nonmembers alike who either were not present for a particular service, or who for whatever reason desire a recording of a service. As noted in section 6.7 of this chapter, the Copyright Act exempts from copyright infringement the performance of a copyrighted musical work of a religious nature in the course of services at a church or other place of religious assembly. However, this exemption does not extend to the making of a copy of that performance. Churches can respond to this problem in a variety of ways.
• Obtain advance permission from copyright owners to make and distribute recordings of services in which copyrighted works are performed.
• Avoid the use of copyrighted music in recorded services.
• Turn off the recording device when copyrighted music is being performed during a recorded service (e.g., by a soloist, the choir, or the congregation). The finished recording will not contain any reproduction of copyrighted music. Some churches “splice in” prerecorded public domain musical works that were previously sung by the church choir for this purpose.
• Enter into a “blanket license agreement” with copyright owners (or their agents). This approach is discussed in section 6.10.
• Obtain a compulsory license (sometimes called a mechanical license).
compulsory license procedures
Let’s turn our attention to this last option—a compulsory license. This technique avoids any infringement problem, but it remains relatively unknown to churches and church leaders. Here’s how the compulsory license procedure works. Assume that a church records its services and distributes audio cassettes to anyone requesting one and paying a $5 “reproduction” fee. The morning worship service conducted on a particular day included the performance of one copyrighted song, and this song is included on the tapes of the service. The act of recording the service, as well as the making of additional tapes for distribution, ordinarily constitutes copyright infringement. However, if the copyright owner of the copyrighted song has authorized the distribution of phonorecords or tapes of the song to the public, and if the church’s primary purpose in making the tapes was to distribute them to the public for private use, then the church’s actions will not constitute copyright infringement if the church obtains a compulsory license.
It is important to note that the mechanical license only permits the making and distribution of phonorecords of a musical work, and does not permit the use of a sound recording created by someone else. Persons claiming a compulsory license must either assemble their own musicians, singers, recording engineers, and equipment, or obtain permission from the copyright owner to use a preexisting sound recording. One who obtains permission to use another’s sound recording is eligible to use the compulsory license for the musical composition that is performed on the sound recording.
C. How Does One Obtain a Compulsory License?
The first step is to identify the copyright owner of the nondramatic musical work to be recorded. This may be done either by personally searching the records of the Copyright Office or by requesting that the Copyright Office conduct the search.
If the name and address of the copyright owner are found, then:
notice
• Before or within 30 days after making, and before distributing any phonorecords of the work, serve a Notice of Intention to Obtain a Compulsory License on the copyright owner by certified or registered mail.
royalties
• Make royalty payments, accompanied by a Monthly Statement of Account, to the copyright owner on or before the 20th day of each month for every phonorecord made and distributed in accordance with the license. See the table entitled “Compulsory License Royalty Rates” in this section.
annual statements
• File with the copyright owner a detailed Annual Statement of Account, certified by a certified public accountant.
If the name and address of the copyright owner are not found, then:
• File a Notice of Intention to Obtain a Compulsory License in the Library of Congress, Copyright Office, Licensing Division, 101 Independence Avenue, S.E., Washington, D.C. 20557-6400.
• Submit the statutory fee with each Notice of Intention. Upon receipt of such a Notice, the Licensing Division will provide the sender with a written acknowledgment of receipt and filing. Upon request and payment of an additional fee for each Notice of Intention, the Licensing Division will provide a Certificate of Filing.
• Make checks payable to Register of Copyrights.
Key point. The name and address of the copyright owner may appear in the records of the Copyright Office at a later time. Since royalty payments must be made after the copyright owner is identified in the Copyright Office records, a church claiming a compulsory license should periodically search these records to determine if the copyright owner has been identified. If the copyright owner is identified, the church should make royalty payments for phonorecords made and distributed after the copyright owner is so identified.
The Copyright Office does not provide forms for the Notice of Intention, the Monthly Statement of Account, or the Annual Statement of Account.
Key point. The Copyright Act defines “phonorecords” as “material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed.” Since the compulsory license applies only to the making and distributing of phonorecords, and soundtracks are not “phonorecords,” the compulsory license is not available to one wishing to record on a soundtrack.
Key point. The person wishing to make and distribute phonorecords of a nondramatic musical work may negotiate directly with the copyright owner or his or her agent. But, if the copyright owner is unwilling to negotiate or if the copyright owner cannot be contacted, the person intending to record the work may use the compulsory licensing provisions of the copyright law.
| Table 6-1 | |
| Compulsory License Royalty Rates | |
| date | rate |
| after January 1, 2000 | royalty rate payable with respect to each work embodied in the phonorecord |
| shall be either 7.55 cents, or 1.45 cents per minute of playing time or fraction | |
| thereof, whichever amount is larger | |
| after January 1, 2002 | royalty rate payable with respect to each work embodied in the phonorecord |
| shall be either 8.0 cents, or 1.55 cents per minute of playing time or fraction | |
| thereof, whichever amount is larger | |
| after January 1, 2004 | royalty rate payable with respect to each work embodied in the phonorecord |
| shall be either 8.5 cents, or 1.65 cents per minute of playing time or fraction | |
| thereof, whichever amount is larger | |
| after January 1, 2006 | royalty rate payable with respect to each work embodied in the phonorecord |
| shall be either 9.1 cents, or 1.75 cents per minute of playing time or fraction | |
| thereof, whichever amount is larger | |
As noted above, royalties are payable each month. This amount is computed, for each copyright owner, by multiplying the applicable royalty rate times the number of phonorecords or tapes made and distributed during the month times the number of times a copyrighted musical work of that owner was reproduced on the phonorecords or tapes. To illustrate, if a church records four services in a particular month, and makes and distributes 50 tapes of each service, and if it performed a copyrighted musical work of ABC Publishing Company in two of the monthly services, then the monthly royalty would be computed by multiplying the applicable royalty rate times 2 (copyrighted musical works) times 100 (tapes distributed containing the copyrighted work).
All compulsory licensees must keep in their possession all records and documents necessary to support fully the information set forth in an annual statement of account for a period of at least three years from the date an annual statement of account was served on a copyright owner.
Section 115(c) further provides that “if the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecord [or tapes] for which the royalty has not been paid, actionable as acts of infringement….”
Let’s illustrate these requirements with several examples.
Example. A church music director makes unauthorized copies of sheet music for members of the church choir. No compulsory license is available for such copies, since the compulsory license procedure is available only to the making of phonorecords (including tape recordings) of copyrighted musical works.
Example. A church records worship services and distributes tapes upon request to anyone who pays a fee of $5. In the month of December it performed a total of 12 copyrighted musical works in the 5 recorded services. These 12 works were owned by a total of 5 publishers. Phonorecords or tapes of each of the 12 works had previously been distributed to the public by the copyright owner. To obtain a compulsory license, the church must serve notice to each of the five copyright owners “before or within thirty days after making, and before distributing” phonorecords or tapes that include the copyrighted works. Then, by the following January 20, the church must submit a monthly statement of account to each copyright owner by registered or certified mail, along with the appropriate royalty fee. An annual statement of account must also be submitted to the copyright owners. How much will the church be required to pay in royalties? This depends on the number of tapes distributed. If a total of 10 tapes were distributed for each service (50 tapes for the month), then the royalties would be computed by multiplying the applicable royalty rate (see the table in this section) times the number of recorded services times the number of recorded songs protected by copyright. While compulsory licenses are an option that church leaders should consider, they are rarely used. As this example illustrates, most church leaders would find complying with the compulsory license requirements to be too burdensome. Other options that are available to church leaders are summarized at the beginning of this section.
Example. A church music director makes an unauthorized transparency of a copyrighted song for use in the course of religious services. No compulsory license is available for such a copy, since the compulsory license procedure is available only to the making of phonorecords (including tape recordings) of copyrighted musical works.
Example. A church does not charge for audio cassettes of church services that it distributes. The absence of a sales charge does not make the unauthorized copies exempt from infringement. The compulsory license procedure is available.
Example. A church would like to pay compulsory license royalties to the copyright owner of a song that was performed in a church service that was recorded (100 tapes were distributed). However, the church cannot locate the copyright owner. If the owner is not identified in Copyright Office records, section 115 specifies that “it shall be sufficient to file the notice of intention in the Copyright Office.”
Example. A church has distributed tapes of its services for several years without authorization from any copyright owner and without complying with the compulsory license procedure. It learns of the compulsory license procedure, and would like to begin complying with it. Failure to have filed the prescribed notice with the copyright owner (or with the Copyright Office if the owner’s whereabouts is unknown) “before or within thirty days after making, and before distributing” the phonorecords or tapes of the church services will prevent the church from obtaining a compulsory license, meaning that its actions will constitute copyright infringement unless authorization has been previously obtained from the copyright owner.
alternatives to compulsory licenses
Obviously, the compulsory license procedure is complex and cumbersome. Further, failure to have used it in the past may prevent its use in the future. As a result, most churches that distribute tape recordings of their services seek to avoid copyright infringement by selecting one of the other alternatives mentioned at the beginning of this section. Let’s summarize them again. First, they may obtain advance permission from copyright owners to make and distribute recordings of services in which copyrighted works are performed. This approach may result in a church paying a modest fee. Second, they can avoid the use of copyrighted music. Third, they can turn off the recording device when copyrighted music is being performed (e.g., by a soloist, the choir, or the congregation). The finished tape will not contain any reproduction of copyrighted music. Some churches “splice in” prerecorded public domain musical works that were previously sung by the church choir for this purpose. Fourth, a church can enter into a “consensual agreement” or “blanket license agreement” with copyright owners. Such an agreement typically invokes a compulsory license approach, with simplifications. For example, a music publisher may agree to dispense with the requirement that a church serve notice on the publisher “before or within thirty days after making, and before distributing” phonorecords or tapes that include copyrighted works. Further, a publisher may dispense with the monthly statements of account and the annual statement of account certified by a CPA. Instead, much less technical forms may be used.
Section 115 specifies that a compulsory license “includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work … except with the express consent of the copyright owner.”
6.11 Computer Programs
Section 117 of the Copyright Act provides that it is not an infringement for the owner of a copy of a computer program to make another copy of that program in either of the following two situations: (1) the intangible copy that is made in a computer’s random access memory (RAM) when a piece of software is inputted into
The Digital Performance Act
In 1995, Congress passed the Digital Performance Right in Sound Recordings Act (“Digital Performance Act”), which amended section 115 of the Copyright Act to take account of technological changes which were beginning to enable digital transmission of sound recordings. The Act expanded the scope of the mechanical license to include the right to distribute, or authorize the distribution of, a phonorecord by means of a digital transmission which constitutes a “digital phonorecord delivery.” A “digital phonorecord delivery” is defined as “each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.” As a result of the Digital Performance Act, the mechanical license applies to two kinds of disseminations of nondramatic musical works: (1) the traditional making and distribution of physical, hard copy phonorecords as described in this section, and (2) digital phonorecord deliveries, commonly referred to as DPDs. However, in including DPDs within section 115, Congress added a wrinkle by creating a subset of DPDs, commonly referred to as “incidental DPDs.” It did this by requiring that royalty fees established under the compulsory license rate adjustment process distinguish between “(i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general.”
a computer, and (2) a single backup copy of a computer program can be made for archival purposes. Any other duplication of copyrighted computer software ordinarily constitutes copyright infringement, unless authorized by the copyright owner.
Example. A church purchases a single piece of software that is accessed simultaneously through a network of linked computers. This constitutes copyright infringement unless such use is authorized by a license or some other means (or, presumably, if the software is intended to serve a network).
Example. A church owns one computer. It has purchased several pieces of software. It is not an infringement for the church to input its lawfully obtained software into its computer’s random access memory, although this constitutes the making of a copy. The church may also make a single backup copy of each item of software for archival purposes. Note, however, that the backup copy must be for archival purposes only. It cannot be used on a minister’s personal computer, or any other computer on the premises (unless the copyright owner has authorized additional duplication).
Example. A church purchases a single piece of software that is used “one-at-a-time” (not simultaneously) by several computer operators. Such usage ordinarily will not constitute copyright infringement, since the owner of the software (the church) has the authority to use the software in any manner so long as unauthorized duplicates are not made.
Example. A church obtains a piece of software from a local vendor on a trial basis. The church cannot make a copy of the software and then return the original to the vendor. Similarly, if an employee of the church brings a software program to work that she has purchased for her personal use, the church cannot make a copy of the software without authorization from the copyright owner.
Many software makers are willing to provide additional copies of particular programs for greatly reduced prices, and in some cases do not even charge if duplicated copies are intended for nonprofit use. However, never assume that a church will be treated leniently. Always check with the software owner before any unauthorized duplication.
6.12 Authorization from the Copyright Owner
Even if none of the exceptions to copyright infringement discussed above is available, the use of copyrighted material may be authorized by the copyright owner. For example, assume that a church choir director wishes to perform a particular song during a worship service, he has a single octavo, he cannot obtain copies locally, and it is too late to order copies by mail. While this “emergency need” to make unauthorized copies is not a recognized exception to copyright infringement, the director is free to contact the copyright owner directly and request permission to make copies. If permission is granted, then the making of copies will not constitute infringement.
licenses
Many music publishers have very liberal policies with respect to church music. Some publishers grant “blanket licenses” to churches, authorizing them to make copies of any song in the publisher’s repertory for an annual fee. Occasionally, several publishers and composers will assign the right to license the use of their works to a single company in return for the payment of a royalty. The company acts as a clearinghouse on behalf of the publishers and composers, granting blanket licenses to churches in exchange for a fee that is apportioned among the various publishers and composers. Perhaps the first such arrangement involving religious music was implemented by F.E.L. Publications, Ltd., in the 1970s. F.E.L. obtained the rights to 1400 songs, and offered annual licenses to churches for a fee of $100. The annual license authorized a church to copy any of the listed songs. Further, the purchaser was granted the right to perform the music and text at not-for-profit performances for purposes of worship or classroom use. A church that wanted to use one of F.E.L.’s listed songs could not deal directly with any of the authors or composers whose musical works or copyrights had been exclusively assigned to F.E.L.
F.E.L.’s annual license differed from traditional marketing of music in that it did not distinguish between songs, but charged a lump sum for which the licensee received the use rights to all of F.E.L.’s 1400 available compositions, even though the purchaser desired to use only a few of the more popular songs. It also differed from usual marketing practices in that it relied heavily on the licensee to patrol its own use. On the anniversary date of the license, the customer had to destroy all copies made of the virtually unlimited number allowed, unless it elected to pay F.E.L another $100 for an additional annual license.
A federal district court found the F.E.L. blanket licensing scheme to be 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.
exclusive licenses
The F.E.L. license 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. ASCAI 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’s and BMI’s 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 (they granted F.E.L. the exclusive right to license the performance and reproduction of their works).
Christian Copyright Licensing, Inc. (CCLI)
A similar approach is used by Christian Copyright Licensing, Inc. (CCLI) of Portland, Oregon. CCLI has attempted to avoid the antitrust issue by having publishers and composers enter into nonexclusive assignments of their musical works with CCLI. While CCLI acts as a clearinghouse for several publishers and composers, the publishers and composers remain free to directly market and license their works to individual churches. Churches that purchase a blanket license from CCLI (called a “church copyright license”) are authorized to make copies of copyrighted music in the CCLI repertory (which includes approximately 250,000 copyrighted works) in any of the following ways during the license term (some conditions apply):
• Make audio recordings of worship services in which copyrighted music is performed.
• Make video recordings of worship services in which copyrighted music is performed.
• Create and project songs from an overhead or slide projector during worship services, youth meetings, adult classes, and similar activities.
• Copy songs in bulletins that are distributed before worship services.
• Copy music onto songsheet handouts. Covered music can be copied from hymnals or songbooks or simply typed and duplicated.
• Copying songs from a variety of sources to create “customized” church songbooks.
• Maintain a database of songs on a church computer.
• Make audio or videotapes of weddings, camps, and special services.
The cost of the CCLI church copyright license is based on congregational attendance at the church’s primary worship service during the week. For smaller churches, the cost of an annual license can be as low as $46. For larger churches the cost is greater, but most churches will pay no more than $200 for an annual license.
Churches that purchase a CCLI church copyright license must make a record of the songs they sing or perform in the course of a year, and file reports with CCLI. These reports help CCLI allocate royalties to the various publishers and composers.
For many churches, the CCLI license makes compliance with copyright law much easier. Churches wishing to contact CCLI may write them at the following address: Christian Copyright Licensing, Inc., 17201 NE Sacramento Street, Portland, Oregon 97230. The telephone number is 1-800-234-2446, and the web sit is www.cdi.com.
Key point. Note that CCLI licenses only apply to limited cases of reproduction and performance of religious musical works. They do not convey any authorization with respect to duplication of literary works (books and articles), and they do not apply in all cases to reproduction or performance of music. For example, copying music for members of the church choir is not allowed. As a result, a CCLI license must not be viewed as a solution to all of a church’s copyright concerns.
Showing Videos to Groups at Church
Showing videos is a common church practice. Many churches show videos to children’s and youth groups, and adult educational classes often show videos. This practice will constitute copyright infringement if the video is copyrighted and permission has not been granted (by license or direct authorization of the copyright owner) to show the video in church. Showing copyrighted videos to groups within the church usually constitutes an infringement of the copyright owner’s exclusive right of public display. If the video was copied from a television broadcast or another video, there is also an infringement of the copyright owner’s exclusive right of reproduction. It does not matter that no fee is charged to watch the video.
Some videos designed for church use allow their display to groups under specified conditions. It is imperative for church leaders to review the terms of the license, if any, that come with each video. Most are licensed solely for private, in-home viewing.
One way for churches to comply with the copyright law when showing videos is to purchase an annual license from Motion Picture Licensing Corporation, 5455 Centinela Avenue, Los Angeles, CA 900666970, telephone 1-800-462-8855 (web site mplc.com). MPLC 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 video licenses for private, in-home use. Over 50,000 organizations have obtained the MPLC license. 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. The license does not cover showings where an admission is charged or where specific titles have been advertised or publicized. The fee for an annual license can be as low as $95. It is based on a number of factors, including the number of videos that will be shown during the year and the number of viewers.
Endnotes
1 Stewart v. Abend, 495 U.S. 207 (1990).
2 Sony Corp. v. universal City Studios, Inc, 114 S. Ct. 774 (1984).
3 Id.
4 Universal City Studio, Inc., v. Sony Corp., 659 F.2d 963 (9th Cir. 1981). rev’d, 104 S. Ct. 774 (1984).
5 Campbell v Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
6 See, e.g., Radji v. Khakbas, 607 F. Supp. 1296 ( D.D.C.( . 1985); Marcus v Crowley, 695 F.2d 1171 (9th Cir. 1983).
7 House Report on the Copyright Act of 1976, pp. 73-74.
8 Senate Report on the Copyright Act of 1976, p. 64.
9 Id. See also Sony Computer Entertainment America, Inc. v. Bleem, 2 14 F.3d 1022 (9th Cir. 2000).
10 Senate Report on the Copyright Act of 1976. This language was quoted with approval by the United States Supreme Court in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
11 See, e.g., Maxtone-Graham v. Burtchaell, 803 E2d 1253 (2nd Cir. 1986) (out-of-print status of copyrighted book supports fair use determination).
12 See, e.g., Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
13 Harper & Row, Publishers, Inc, v. Nation Enterprises, 471 U.S. 539 (1985).
14 New Era Publications v. Carol Publishing, Group, 904 F.2d 152 (2nd Cir. 1990).
15 Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2nd Cir. 1986).
16 Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).
17 Wright v. Warner Books, Inc., 748 F. Supp. 105 (S.D.N.Y. 1990).
18 Maxtone-Graham v, Burtchaell, 803 F.2d 1253 (2nd Cir. 1986).