Copyright

Legal Developments

Stock Photos Warning

Key point 9-05.08. Copyright infringement occurs when one violates any one or more of the

Richard R. Hammar, Attorney, CPA
Bio


Key point 9-05.08. Copyright infringement occurs when one violates any one or more of the exclusive rights of a copyright owner.

Key point § 9-05.11. Publishers cannot place the contents of magazines and other periodicals in online electronic databases and on CD-ROMs without obtaining the permission of writers whose articles were included in those periodicals.

A federal court in New York ruled that a company that purchased a license to use various stock photos could be sued for copyright infringement for using the photos beyond the permission granted in the licensing agreement. A licensing agency (the "plaintiff") licenses stock photographs for a licensing fee. A publisher (the "defendant") entered in several license agreements with the plaintiff to use specified stock photos in various publications. These licenses were "expressly limited by number of copies, distribution area, image size, language, duration and/or media (print or electronic)." The agreements also stated that the plaintiff "reserves the right to bill the customer (and the customer hereby agrees to pay) ten (10) times the normal license fee for any unauthorized use, in addition to any other fees, damages, or penalties [the plaintiff] may be entitled to under this agreement or applicable law."

The plaintiff filed a copyright infringement lawsuit in federal court, citing 294 instances of alleged infringement by the defendant. In each case, the plaintiff allegedly exceeded the limitations imposed by the licensing agreements. Specifically, the lawsuit alleged that the defendant used photos

  • in numbers exceeding the limited print quantities in the licenses;
  • displayed the images online or in digital media without permission to do so;
  • distributed the images in geographic territories that were not authorized; and
  • copied the images in custom, state-specific language, or international editions without permission to do so.

The plaintiff asked the court for the following damages: (1) destruction or other reasonable disposition of the unlawfully used photos, including digital files and any other means by which they could be used again without the plaintiff's authorization; (2) an award of actual damages; (3) statutory damages; (4) attorneys' fees; and (4) an award of 10 times the license fee for unauthorized uses pursuant to the agreements.

The defendant asked the court to dismiss the lawsuit on several grounds, but the court concluded that the plaintiff had stated a valid claim for copyright infringement.

What This Means For Churches:

This case illustrates an important point. Churches often purchase stock photos for use in church publications or on a website. In some cases, churches that purchase stock photos are given full rights in the photos, meaning that the church can use them in any form or medium it chooses, including digital media. But in other cases, a church purchases a license to use selected stock photos, and such licenses often contain restrictions on the use of the photos. This case illustrates that such restrictions may include limits on quantity, online or digital reproductions, geographic territory, and modification or editing. Churches that purchase licenses to stock photos should carefully review any such restrictions, and ensure that they are honored. A failure to do so may expose the church to substantial penalties. Lefkowitz v. McGraw-Hill Global Educ. Holdings, 2014 WL 2481904 (S.D.N.Y. 2014).

Related Topics: Posted:

Legal Developments

Invasion of Privacy

Court rules that school’s sale of a recorded school play does not invade students’ privacy.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

A New Jersey court ruled that a school that sold videos of a student play did not invade the privacy of the students.

A private school provided education for students in kindergarten through eighth grade. At the beginning of each school year, the parents executed and submitted forms to the school consenting to the videotaping, photographing or sound recording of their children "in classroom, playground, auditorium activities and productions." The form provided in part that "this consent is given with the knowledge that these might appear in the media or be used in conjunction with exhibits, publicity and public relations."

The school sponsored a play in which 80 students participated. The play lasted one hour. On the night of the play, an announcement was made that individuals could purchase copies of the videotape through the PTA. One of the student actors ("Emily") saw the videotape of the performance, but did not want a copy because she had tripped during the performance.

Emily's mother sued the school for invasion of privacy as a result of the use of her daughter's performance for commercial gain and the "mental anguish" that she and Emily had suffered as a result of the sale of the videos. She also claimed that the school had "exploited" the students, and that it was her obligation as a parent to protect students from what could happen in the future. She also noted that she did not want the tape "out there" in case Emily "became older and got a name for herself" because it was not one of her best performances.

The trial court dismissed the invasion of privacy claim on the ground that the school acted with "a charitable, rather than commercial purpose." The mother appealed.

A state appeals court noted that invasion of privacy "encompasses four distinct kinds of invasion of four different interests of the plaintiff." These include:

  • Intrusion on another's physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping or prying into personal affairs.
  • Public disclosure of private facts, such as by making public private information about another.
  • Placing another in a false light in the public eye in a manner that would be objectionable to the ordinary reasonable person.
  • Appropriation of another's name or likeness for commercial gain.

These four separate kinds of invasion of privacy "have almost nothing in common except that each represents an interference with the right of the plaintiff to be left alone."

Appropriation of another's likeness for commercial gain

In this case, the mother asserted that the school had committed the fourth kind of invasion of privacy—the appropriation of her daughter's likeness for commercial gain as a result of the sale of the videotapes of the school play. The court described this kind of invasion of privacy as follows:

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his [or her] privacy." Restatement (Second) of Torts § 652C. Accordingly, to establish a case for invasion of privacy by appropriation of likeness, a plaintiff must establish: (1) the defendant appropriated the plaintiff's likeness, (2) without the plaintiff's consent, (3) for the defendant's use or benefit, and (4) damage … [The courts] have consistently required plaintiffs to show that defendants received a commercial benefit through the unauthorized use of plaintiff's likeness.

The court rejected the mother's claim that all she had to establish to prevail on her invasion of privacy claim was mental anguish over the videotaping of her daughter's play. Instead, she was required to show that the school used Emily's likeness for a commercial purpose. The mere act of recording the school play was not enough to establish an appropriation of likeness claim.

"Incidental" use of another's image

The court noted that "there is no appropriation of likeness when the use of an individual's image is merely 'incidental' to the total presentation." In other words, the school's sale of recordings of the play could not amount to an appropriation of Emily's likeness for commercial gain unless that gain was directly associated with Emily's likeness. The fact that she was one of 80 students depicted on the recording, and that few if any persons purchased the video because of her likeness, defeated any invasion of privacy claim.

The court rejected the mother's claim that every unauthorized recording amounts to an unlawful appropriation of another's likeness. The court concluded:

The record is devoid of any evidence that the school used Emily's likeness to obtain a commercial or trade benefit, or that her personal appearance in the play was used to any greater degree than other students in the performance. Nor did the mother produce any evidence to show how she or Emily was damaged as a result of the videotaping. The mother alluded to the possibility that the tape could hurt Emily in the future. However, she cites no legal authority to support her apparent position that the damage element can be satisfied on such contingent grounds.

Because the mother failed to establish that the school used Emily's image in a manner that furthered a commercial or trade purpose, that Emily's likeness was used in anything more than in an incidental manner, and that she was damaged by the school's conduct, we affirm the trial court's dismissal of this case.

What this means for churches

This case is of special relevance to churches, since so many churches publish images of members in pictorial directories, brochures, slides, or on web sites. As this case illustrates, such photos may expose a church to invasion of privacy claims. The use of someone's likeness without permission has been deemed to be an invasion of privacy by some courts. This risk goes way up if (1) the image is used for commercial purposes (in a money making venture, even if by a nonprofit entity), or (2) you use the image in connection with demeaning text (for example, an image of an adolescent in an article on victims of child abuse).

If neither of these two factors is present, then the risk of invasion of privacy is reduced significantly, but not eliminated. A church can easily address this by obtaining express or implied consent. Express consent is written consent by a parent. Implied consent may occur if a church, for example, inserts notices in the church bulletin or newsletter a few times each year advising members that the church will use candid photos of various church activities on its website from time to time, and members not wanting their photos depicted (or those of their children) should so inform the church office. The church office can then create a list of persons whose photos are not to be displayed. However, any photo of children should contain no personally identifiable information.

Another legal risk associated with the use of images of church members is the posting of images of minors on a church's website with personally identifiable information. This becomes globally circulated among the pedophile community, and allows child molesters to solicit and seduce these children. Jeffries v. Whitney E. Houston Academy 2009 WL 2136174 (N.J. Super.A.D. 2009).

Related Topics: Posted:

Legal Developments

Music Copyright Infringement

The Copyright Act’s religious services exemption does not apply to radio broadcasts of worship services.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Music Copyright Infringement

The Copyright Act’s religious services exemption does not apply to radio broadcasts of worship services.

Richard R. Hammar, J.D., LL.M., CPA

Key point 9-05.09. A copyrighted musical or dramatico-musical work of a religious nature may be performed or displayed in the course of services at a place of religious worship or other religious assembly. This is an exception to the copyright owner’s exclusive right to publicly perform the work.

* A federal district court in Alabama ruled that the “religious services” exemption to copyright infringement, which permits the performance of copyrighted religious music in the course of religious services, did not apply to broadcasts of those services. A number of music publishers, including some that publish religious music, granted a non-exclusive right to license public performances of their copyrighted works to the American Society of Composers, Authors and Publishers (“ASCAP”). Several of these publishers sued a radio station owner claiming that he violated the copyright law by playing their copyrighted musical compositions on the radio without permission. The songs that were played without permission included “His Hand In Mine,” “More Than Wonderful,” and “Above All.”

The station owner claimed that the “religious services exemption” allowed him to broadcast some of the copyrighted compositions because they were performed during church services. Section 110 of the Copyright Act creates an exemption to copyright infringement for the “performance of a nondramatic literary or 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.“

The court observed:

The critical language here is “at a place of worship or other religious assembly”; the exception says nothing about broadcasts in general and, more specifically, broadcasts from a place of worship. True, it could be argued the exemption should apply where, although the songs are being broadcast, there is an audience at the place of worship; in short, the exemption, it could be argued, should apply because the conditions to the exemption have been satisfied. Thus, it could be argued, the exemption should apply to all simultaneous performances as long as one of the performances falls within the exemption.

However, the law is clear that radio broadcasting is itself a separate public performance which can constitute an infringement. Thus, the mere fact that a radio broadcast of a song is simultaneous with the playing of the song at a place of worship does not mean that broadcast falls within the religious exemption; playing to the audience at the place of worship and playing to a broadcast audience are separate public performances …. A singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance; … a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers.

This understanding of the religious exemption is supported by its legislative history, which provides that the exemption does “not extend to religious broadcasts or other transmissions to the public at large, even where the transmissions were sent from the place of worship.” H. Rep. No. 94-1476.

As a result, the court concluded that the religious exemption did not allow the radio station owner “to broadcast copyrighted songs, performed during church services, without authorization, since such broadcasts are not ‘at a place of worship.’

Application. Several churches have their worship services broadcast either on the radio or television. This case clarifies that the Copyright Act’s religious services exemption, which permits the performance of religious music “in the course of services at a place of worship or other religious assembly,” does not apply to radio broadcasts of worship services. While the performance of copyrighted religious music at the place of religious assembly would be protected by the religious services exemption, this is not true for broadcasts of religious services in which copyrighted music is performed since “the law is clear that radio broadcasting is itself a separate public performance which can constitute an infringement.”

What about recordings of worship services in which copyrighted music is performed? Many churches make audio or video recordings of their services available for a nominal charge. Do these recordings constitute copyright infringement? Must churches obtain permission to record services in which copyrighted music is performed? The court did not address this question, but the answer is yes. The key point is that the religious services exemption is limited to the performance of religious music in the course of services at a place of worship or other religious assembly. Audio and video recordings do not constitute performances, and so the religious services exemption does not apply. Churches that record worship services in which copyrighted music is performed should obtain authorization to do so. One option is to purchase an annual license from Christian Copyright Licensing, Inc., of Portland, Oregon. A CCLI license will enable your church to legally make audio and video recordings of your services. Some conditions apply, which are described in the CCLI contract. Other licensing options are also available. Simpleville Music v. Mizell, 451 F.Supp.2d 1293 (M.D. Ala. 2006).

Related Topics: Posted:

Legal Developments

Distribution of Copyrighted Materials

Check before distributing materials to ensure you’re not in violation of copyright law.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-11-01

Copyright

Richard R. Hammar, J.D., LL.M., CPA

• Key point. One of a copyright owner’s exclusive rights is the right to publicly distribute copies of the work. A church violates this right when it distributes or makes available unauthorized copies to the public.

! A federal appeals court ruled that a church violates the copyright law when it publicly distributes an unauthorized copy of copyrighted materials. The Church of Jesus Christ of Latter—Day Saints (the “Church”) acquired a single copy of a copyrighted genealogical text and made several unauthorized copies which were distributed to the Church’s “branch libraries.” When the copyright owner learned of the Church’s actions, it demanded that further distribution be stopped immediately. The Church recalled and destroyed many of the copies that it had made. It was concerned that nine libraries continued to possess unauthorized copies, and it wrote them each a letter asking them to locate and return any offending copies. The copyright owner visited a number of libraries, and found unauthorized copies at two locations. The owner sued the Church for copyright infringement. A federal appeals court ruled that the Church might be liable for copyright infringement. It observed:

A copyright infringement is a violation of “any of the exclusive rights of the copyright owner.” One of those exclusive rights is the right “to distribute copies … of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Generally, as permitted by what is known as the first—sale doctrine, the copyright owner’s right to distribute a copyrighted work does not prevent the owner of a lawful copy of the work from selling, renting, lending, or otherwise disposing of the lawful copy. For example, a library may lend an authorized copy of a book that it lawfully owns without violating the copyright laws. However, distributing unlawful copies of a copyrighted work does violate the copyright owner’s distribution right and, as a result, constitutes copyright infringement. In order to establish “distribution” of a copyrighted work, a party must show that an unlawful copy was disseminated “to the public.”

The court agreed with the copyright owner in this case that when a library “adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.”

Application. This case illustrates an important point-“public distribution” is one of the exclusive rights of a copyright owner. This means that no other person or organization, including a church, can publicly distribute unauthorized copies of a copyrighted work. To illustrate, a Sunday School teacher who makes unauthorized copies of a copyrighted article and distributes them to each member of her class has committed copyright infringement by violating the copyright owner’s exclusive right of public distribution. Of course, as this court noted, churches that acquire a lawful copy of a copyrighted work are free to sell, rent, or otherwise dispose of that copy. For example, a church could sell used books in its library without violating the copyright owners’ exclusive right of public distribution, because it is distributing lawfully acquired copies. This is known as the “first sale” doctrine. Hotaling v. Church of Jesus Christ of Latter—Day Saints, 118 F.3d 199 (4th Cir. 1997). [ Infringement of Copyright Law]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0697

Related Topics: Posted:

Legal Developments

Worship Music and Copyright Law

Are song lyrics copyrighted?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Copyright

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Copyright infringement can occur when either the music or lyrics of a copyrighted song are copied without permission.

A federal appeals court ruled that copyright infringement had occurred even though only lyrics were copied. The court observed:

Song lyrics enjoy independent copyright protection as “literary works” … and the right to print a song’s lyrics is exclusively that of the copyright holder …. A time-honored method of facilitating singing along with music has been to furnish the singer with a printed copy of the lyrics. Copyright holders have always enjoyed exclusive rights over such copies. While projecting lyrics on a screen and producing printed copies of the lyrics, of course, have their differences, there is no reason to treat them differently for purposes of the Copyright Act.

Application. Many churches make unauthorized copies of song lyrics. Sometimes the lyrics are printed in a church bulletin. In other cases they are duplicated onto a transparency. In either case, or in any other case when lyrics are copied without authorization, copyright infringement has occurred. Church leaders need to understand that lyrics are entitled to copyright protection independently from the musical score. ABKCO v. Stellar Records, 96 F.3d 60 (2nd Cir. 1996). [Copyright Law]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0397

Posted:

Legal Developments

Copyshop Violates Copyright Law

Copying and selling sections of textbooks constitutes copyright infringement.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Copyright

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Unauthorized duplication of copyrighted materials may violate the copyright law.

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. A number of publishers of academic texts sued the copyshop for copyright infringement. The copyshop claimed that its copying amounted to permissible “fair use.” A federal appeals court ruled that the copyshop had committed copyright infringement. The court noted that “fair use” is a defense to copyright infringement, but it insisted that this is a narrow exception that did not apply in this case. The copyright law does not define fair use, but it does list four “fair use factors” that may be applied in deciding whether or not the fair use defense is available. Those factors are: (1) the purpose and character of the use; (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 unauthorized use upon the market or value of the copyrighted work. The court concluded that none of these factors supported a finding of fair use. 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. Finally, 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. And, 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 allow multiple copies for classroom use provided that the following 6 conditions are satisfied: (1) less than 1,000 words are copied; (2) the decision to use the work and the timing 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” to copy; (3) no more than 9 incidents of multiple copying occur during the same academic term; (4) each copy contains a copyright notice; (5) the copying “does not substitute for the purchase” of books or periodicals; and (6) the student is not charged more than the actual cost of copying.

The court concluded that the copyshop was not liable for “willful” damages. Under the copyright law, a person who “willfully” infringes upon the copyright of another may be assessed damages of up to $100,000 per incident. The court concluded that the copyshop had not acted willfully. It concluded that “willfulness” means more than an intent to copy—it means making copies knowing that it constitutes copyright infringement. In this case the copyshop insisted that its actions constituted permissible fair use, and therefore it could not have acted willfully.

Application. This case is relevant to church leaders for the following reasons: First, the case illustrates that the fair use exception to copyright infringement, as well as the so-called “classroom guidelines” defining fair use in the academic context, are narrow. This is especially relevant to churches that operate schools. But it also is relevant in the context of any church’s adult and children’s educational program. Note that the court concluded that copying 5 percent of a copyrighted work is substantial enough to bar the fair use defense. Second, the court’s narrow definition of “willful” will be helpful to any church that is sued for damages based on “willful” copyright infringement. While the damages for willful infringement can be astronomical, they will only apply (according to this court) to persons or organizations that knowingly violate the copyright law. Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996). [Copyright Law]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0397

Posted:

Legal Developments

Defining ‘Works Made for Hire’

Court addresses ownership of employee-made works.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1996-03-01

Copyright

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Literary or musical works produced by an employee within the scope of his or her employment represent “works made for hire.” The employer is the owner of the copyright in such a work, unless it has issued a signed writing transferring copyright ownership back to the employee.

In a case that will be of interest to church leaders, a federal court in New Jersey addressed the issue of whether an employee or employer owns the copyright in literary works produced by the employee in connection with his or her employment. A police officer created an innovative educational program to stop car theft. The program included an officer’s training manual and a student workbook. When the city learned that the officer was marketing the program to other cities, it sued him. The city claimed that the program was a “work made for hire,” and as such the city owned the copyright in the program. A federal court disagreed. The court acknowledged that the Copyright Act vests the copyright in a “work made for hire” in the employer, and defines such a work as “a work prepared by an employee within the scope of his or her employment.” The court conceded that the officer was an employee of the city, but concluded that he had not prepared the educational program “within the scope of his employment.” The court defined “scope of employment” to include all three of the following elements: (1) the employee’s work is the kind he was employed to perform; (2) it occurs substantially within authorized work hours; and (3) it is prompted, at least in part, by a desire to serve the employer.

The court concluded that the officer’s program failed the first test, for the following reasons: (a) The courts rely heavily on an employee’s job description in deciding whether a particular project is the “kind of work” the employee was hired to perform. In this case, the officer’s job description said nothing about creating educational programs. (b) The court also noted that the degree of control an employer exercises over an employee’s project is relevant in determining whether or not the project is the “kind of work” the employee was hired to perform. In this case, the city exercised no control whatever over the officer’s creation of the program. Indeed, the city was not even aware he was working on the project. (c) Courts also consider whether the employee relied on knowledge gained within the scope of his or her employment in deciding whether or not a project was the “kind of work” the employee was hired to perform. The officer in this case gained nothing from his present employment that was useful to him in creating his program. (d) The court quoted from a century—old case: “We do not think … that if the defendant in spare moments wrote a book or taught a night school or sang in a church the fruits of his extra toil on his own behalf should be swept into the tills of the bank.” Hillsboro National Bank v. Hyde, 75 N.W. 781 (1898).

The court also concluded that the officer’s program failed the second test, since there was no evidence that he produced any portion of the program during authorized work hours. The officer testified that he created the program at home during off—duty hours, and that he did not use any city facilities or resources. Finally, the court concluded that the officer’s program failed the third test, since the officer was not motivated by a desire to serve his employer when he created the program. Rather, the officer was motivated by desire to make the program available to many cities, including his own. Since the city failed to establish all three elements of the “scope of employment” test, the court concluded that the officer’s program was not a work made for hire and accordingly the copyright in the work belonged to him rather than to the city.

What is the relevance of this case to ministers and other church staff members? Literary or musical “works created by church employees within the scope of their employment are works made for hire.” The copyright owner of a work made for hire is the employer, not the employee, unless the employer executes a signed writing assigning copyright ownership back to the employee. Church employees who create literary or musical works during normal working hours, at the church, must recognize that such works may satisfy the definition of a work made for hire. This risk can be reduced by doing substantially all the work at home during off—duty hours. To resolve all doubt, consideration should be given to the church executing a signed writing assigning any copyright interest in the work back to the employee. City of Newark v. Beasley, 883 F. Supp. 3 (D.N.J. 1995). [ Copyright Ownership]

© Copyright 1996, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0296

Related Topics: Posted:

Legal Developments

Copyright Violations at Conferences

Organizers may be liable for infringement by exhibitors.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1996-01-01

Copyright

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Churches and denominational agencies that conduct conferences that include exhibit areas may inadvertently commit copyright infringement by failing to ensure that exhibitors do not play copyrighted music without permission.

A federal court in Massachusetts ruled that a trade show organizer was liable for copyright infringement occurring because of the unauthorized performance of copyrighted music by 6 of 2,000 exhibitors at a national trade show. This was so despite the fact that the organizer’s contract with exhibitors contained a statement instructing exhibitors to comply with copyright law. This did not shift liability. The court concluded that the organizer retained sufficient control over the exhibitors to make it responsible for their copyright infringement. Control was demonstrated by (1) the rules and regulations that the organizer had established for exhibitors; (2) agents of the organizer circulated among the exhibitors to “ensure compliance” with the rules and regulations; (3) agents of the organizer were available during the convention to address exhibitor needs and respond to complaints; and (4) the organizer had the authority to restrict exhibits that were objectionable. The court stressed that the organizer could have prohibited exhibitors from playing or performing copyrighted music, but did not. The fact that exhibitors’ contracts required them to comply with the copyright law did not prevent the organizer from liability for the exhibitors’ copyright infringements, since the organizer must shoulder responsibility when the instruction is not followed. The court awarded damages of $1,000 for each violation (a total of $6,000). This case is directly relevant to any religious organization that sponsors conventions which include exhibits. Here are our recommendations: (1) If you are involved in regional or national conferences that include exhibits, insist on receiving proof of copyright compliance by any exhibitor who will be using copyrighted music. (2) In the exhibitor’s contract, ask if the exhibitor will be using music. If an exhibitor says no music will be played or performed, be sure the exhibitor understands that a false answer will be grounds for immediate expulsion from the convention. (3) If the exhibitor says music will be performed (live or recorded) then require, as a condition of the contract, and in advance of the event, proof of authorization. This can be an ASCAP license, or authorization directly from the copyright owner. (4) Police the exhibits. If music is being played or performed, did the exhibitor provide proof of authorization? Polygram International Publishing, Inc. v. NEVADA/TIG, Inc., 855 F. Supp. 1314 (D. Mass. 1994). [ Copyright Law]

© Copyright 1996, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 m40 c0196

Posted:

Legal Developments

Religious Conventions and Copyright Infringement

Religious groups may be liable for exhibitors’ copyright infringement.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1995-03-01Recent Developments

Denominations – Legal Liability

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Religious groups that sponsor conventions may be liable for copyright infringement if convention exhibitors play copyrighted music without authorization—even if the exhibitors’ contract requires that they comply with the copyright law.

• A federal court in Massachusetts ruled that a trade show organizer was liable for copyright infringement occurring because of the unauthorized performance of copyrighted music by 6 of 2,000 exhibitors at a national trade show. This was so despite the fact that the organizer’s contract with exhibitors contained a statement instructing exhibitors to comply with copyright law. This did not shift liability. The court concluded that the organizer retained sufficient control over the exhibitors to make it responsible for their copyright infringement. Control was demonstrated by (1) the rules and regulations that the organizer had established for exhibitors; (2) agents of the organizer circulated among the exhibitors to “ensure compliance” with the rules and regulations; (3) agents of the organizer were available during the convention to address exhibitor needs and respond to complaints; and (4) the organizer had the authority to restrict exhibits that were objectionable. The court stressed that the organizer could have prohibited exhibitors from playing or performing copyrighted music, but did not. The fact that exhibitors’ contracts required them to comply with the copyright law did not prevent the organizer from liability for the exhibitors’ copyright infringements, since the organizer “must shoulder responsibility when the instruction is not followed.” The court awarded damages of $1,000 for each violation (a total of $6,000). This case is directly relevant to any religious organization that sponsors conventions which include exhibits. Here are our recommendations: (1) If you are involved in regional or national conferences that include exhibits, insist on receiving proof of copyright compliance by any exhibitor who will be using copyrighted music. (2) In the exhibitor’s contract, ask if the exhibitor will be using music. If an exhibitor says no music will be played or performed, be sure the exhibitor understands that a false answer will be grounds for immediate expulsion from the convention. (3) If the exhibitor says music will be performed (live or recorded) then require, as a condition of the contract, and in advance of the event, proof of authorization. This can be an ASCAP license, or authorization directly from the copyright owner. (4) Police the exhibits. If music is being played or performed, did the exhibitor provide proof of authorization? Polygram International Publishing, Inc. v. NEVADA/TIG, Inc., 855 F. Supp. 1314 (D. Mass. 1994). 11D8

See Also: Infringement

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m40 m36 c0295

Posted:

Legal Developments

Instructional Purposes as “Fair Use” of Copyrighted Materials

Making copies of works for this purpose does not constitute “fair use”.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-05-01 Recent Developments

Copyright Law

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Making copies of copyrighted religious works for instructional purposes does not constitute permissible “fair use.”

• A federal court in California ruled that an instructor who made copies of copyrighted religious books and tapes for instructional purposes was guilty of copyright infringement. The court rejected the instructor’s defense of “fair use.” The Copyright Act permits owners of copyrighted material to engage in the “fair use” of such material. The concept of fair use is a narrow one that should not be viewed as a form of blanket authorization to duplicate copyrighted materials. In determining whether a particular use of a copyrighted work is a “fair use,” four factors are considered. First, what is the purpose and character of the use? Second, what is the nature of the copyrighted work? Third, what is the “amount and substantiality” of the portion copied? That is, how much of the copyrighted work is used? The more of a copyrighted work that is copied, the less likely the copying will be considered a fair use. One thing is certain—verbatim or nearly verbatim reproductions of an entire copyrighted work will never be deemed a fair use. Fourth, what effect will the unauthorized use have upon the marketability of the copyrighted work? The court concluded that the instructor failed all four of these factors. The purpose of the copying was commercial (the copied materials were sold to students); the nature of the copyrighted works 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. In 1975, groups of authors and publishers adopted guidelines for classroom copying in nonprofit educational institutions. The House Report on the Copyright Act of 1976 reprinted these guidelines in full, and further noted that they “are a reasonable interpretation of the minimum standards of fair use.” 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] copying 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.” Bridge Publications, Inc. v. Vien, 827 F. Supp. 629 (S.D. Cal. 1993).

See Also: Exceptions to Copyright Infringement

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0394

Related Topics: Posted:

Legal Developments

Christian Radio Station Guilty of Copyright Violations

Conviction leads to more than $50,000 in damages.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1993-07-01 Recent Developments

Copyright Law

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Persons and organizations that “willfully infringe” upon the copyright of another can be assessed statutory damages of up to $100,000 per violation.

• A religious radio station that broadcast copyrighted religious music without permission was found guilty of “willful infringement” and was assessed statutory damages of $52,500. The station manager admitted that he played copyrighted songs on the radio, and that he had no license or permission to do so. He defended his actions by noting that “the artists have publicly stated their intent to minister through their Christian music” and that “their intent to minister is further accomplished by radio stations broadcasting their music to a listening audience.” The court rejected this reasoning and assessed statutory damages of $52,500 against the station for willful copyright infringement. The court based this result on 15 proven infringements at $3,500 each. The court also ordered the station to pay the attorneys fees the copyright owners incurred in maintaining their infringement lawsuit. This case serves as a useful reminder of the consequences associated with the willful infringement of another’s copyright. It is common for church leaders to assume that they can infringe upon religious music or literature at will since the writers and composers of such material obviously had a religious motivation and in effect have “donated” their work to the church. Not only is this assumption inappropriate, but as this case demonstrates, it can lead to statutory damages for willful infringement. Meadowgreen Music Company v. Voice in the Wilderness Broadcasting, Inc., 789 F. Supp. 823 (E.D. Tex. 1992).

See Also: Infringement

© Copyright 1993, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 0493

Posted:

Legal Developments

Photocopying Newsletters Is Copyright Violation, Not Fair Use

Court’s ruling is important for churches to know.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1993-05-01 Recent Developments

Copyright Law

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Making unauthorized copies of newsletters constitutes copyright infringement and is not excused by the so-called “fair use” defense.

• A federal district court in New York ruled that a company’s practice of making several copies of newsletters to distribute among key employees constituted copyright infringement. While the case involved a secular business, it will be directly relevant to churches and other religious organizations. Texaco Oil Company employs nearly 500 scientists and engineers to engage in research. To support its research activities, Texaco subscribes to several newsletters and journals. Texaco scientists frequently make photocopies of articles in these publications. There are many reasons for doing so. First, making copies “frees” the original publication to circulate among other employees. Second, copying permits employees to keep personal copies of the same materials. This enables employees to maintain their own copies of key articles for future reference, to take articles home and read them at their own convenience, and to make marginal notes on their copies instead of defacing the original. Texaco was sued by a number of publishers who claimed that this photocopying infringed upon their copyrights. Texaco insisted that its photocopying constituted non-infringing “fair use.” The court concluded that Texaco scientists did engage in copyright infringement when they made copies of the newsletters and journals, and that the fair use defense was not available. The Copyright Act specifies that “the fair use of a copyrighted work . . . is not an infringement of copyright.” Unfortunately, the Act does not define “fair use.” It does suggest several examples of fair use, including copies made “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” However, the Copyright Act states that in deciding whether or not a particular act of copying constitutes fair use, four “factors” must be considered. Those four factors are (1) the purpose and character of the use, including whether such use is of a commercial nature, (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 the copyrighted work. The court evaluated each of the 4 “fair use factors” and concluded that they did not support a finding of fair use. With regard to the first “fair use 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. The court observed: “Texaco simply makes mechanical photocopies of the entirety of relevant articles. Nor is the copy of the original employed as part of a larger whole, for some new purpose. The dimensions of the original and the copy are identical. The principal purpose of Texaco’s copies is to supersede the original and permit duplication, indeed, multiplication. A scientist can make a copy, to be read subsequently and kept for future reference, without preventing the circulation of the journal among coworkers. This kind of copying contributes nothing new or different to the original copyrighted work. It multiplies the number of copies.” As to the second factor—the nature of the copyrighted work—the court noted that with respect to scientific newsletters and journals “circulation of such material is small, so that subscriptions must be sold at very high prices. 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 the Supreme Court has ruled that reproduction of an entire copyrighted work “militates against a finding of fair use.” Sony Corporation of America v. Universal Studios, Inc., 464 U.S. 417 (1984). Finally, the court concluded that the fourth factor (market effect) did not support a finding of fair use. Texaco argued that it would not buy additional subscriptions to the newsletters and journals if its scientists could not make individual copies of articles, and accordingly the “market” for the newsletters and journals was not affected adversely by the copying. The court rejected this reasoning. It noted that Texaco certainly would purchase some additional subscriptions if its scientists could not make individual copies. Further, it observed that Texaco could purchase “blanket licenses” from the newsletter and journal publishers, allowing its scientists to make copies of any articles they chose for an annual fee. The court rejected Texaco’s ingenious reliance on the Supreme Court’s landmark decision in the Sony case (referred to above). In Sony, the Supreme Court concluded that homeowners who make copies of television programs on video equipment so they can watch the programs later are not committing copyright infringement but rather are engaged in lawful “fair use”. The Court based this decision on the fact that the copying (1) is private, (2) is noncommercial, (3) is done to permit the homeowner one viewing at a more convenient hour of copyrighted material that was offered to him or her free of charge, and (4) causes no appreciable loss of revenue to the copyright owners. Texaco argued that its scientists, in making copies of individual articles from professional newsletters and journals, were no different than the “time-shifting” homeowner in the Sony case, since they were simply making copies that they could read later at their own convenience. The court rejected this analogy, noting that the making of copies of articles by Texaco scientists from various professional publications “is a far cry from the single user’s one-time viewing in Sony.” American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1 (S.D.N.Y. 1992).

See Also: Fair Use

© Copyright 1993, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0393

Posted:

Legal Developments

The “Copyright Renewal Act of 1992”

This act extends the copyright term of some works.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• The “Copyright Renewal Act of 1992” automatically extends the copyright term of copyrighted works in their first term as of January 1, 1978. For many years, copyright protection lasted for a term of 28 years. This term could be renewed for an additional 28 years if the copyright owner applied for renewal during the 28th year of protection. The Copyright Act of 1976 (which took effect on January 1, 1978) changed copyright terms dramatically. For works created on or after January 1, 1978, copyright generally lasts for the life of the author plus an additional 50 years. Works in their second 28-year copyright term as of January 1, 1978 were automatically extended for an additional 19 years (for a total copyright term of 75 years). the copyright in works in their first 28-year copyright term as of January 1, 1978 could be renewed for an additional 47 years if application was made during the 28th year of the first term. The new law addresses this latter category of works (those in their first 28-year copyright term as of January 1, 1978). The new law automatically extends the copyright term of these works for an additional 47 years (for a total copyright term of 75 years). Copyright owners will not be required to renew their copyright during the 28th year of the first term. The new law does permit the voluntary registration of renewal claims, and provides various incentives to encourage copyright owners to register the renewal of their copyrights.

See Also: Duration of Copyright Protection

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0692

Related Topics: Posted:

Legal Developments

Print Shop Violates Copyright Law

Be sure to understand the “fair use” law before copying materials.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-11-01 Recent Developments

Copyright Law

Richard R. Hammar, J.D., LL.M., CPA

• A federal court in New York ruled that a company violated the copyright law by duplicating excerpts from several copyrighted books and compiling them into packets that it sold to college students. Kinko’s is a company specializing in copying. Many of its franchises are located in communities containing one or more colleges or universities. Kinko’s representatives contact college professors and offer to duplicate and compile reading materials the professors plan to use in their courses. Kinko’s then copies the excerpts, some quite large, and sells them in bound form to the students. In this case, several book publishers claimed that Kinko’s made copies of excerpts (ranging from 14 to 110 pages each) from 12 copyrighted books, and complied them into 5 separate packets that it sold to college students. It neither sought nor obtained permission from the copyright owners to make the copies. Kinko’s defended its actions on the basis of “fair use,” and the fact that it had made similar packets for 20 years without objection from the copyright owners. Both defenses were rejected by the court, which ordered Kinko’s to refrain from further copyright infringements, and awarded $500,000 in damages. Kinko’s main defense was “fair use.” The Copyright Act specifies that “the fair use of a copyrighted work … is not an infringement of copyright.” Unfortunately, the Act does not define “fair use.” It does suggest several examples of fair use, including copies made “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” However, the Copyright Act states that in deciding whether or not a particular act of copying constitutes fair use, 4 “factors” must be considered. Those 4 factors are (1) the purpose and character of the use, including whether such use is of a commercial nature, (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 the copyrighted work. Does the copying of materials for use by college students constitute fair use under these factors? The court said no. The court evaluated each of the 4 “fair use factors” and concluded that they did not support a finding of fair use. With regard to the first “fair use factor,” the court concluded that the purpose and character of the copying was commercial, and not strictly educational. The court observed that “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.” Further, the court noted that “a quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.” As to the second factor, the court noted that “the scope of fair use is greater with respect to factual than non-factual works.” The materials copied in this case were primarily factual, which supported a conclusion of fair use. 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 “the portions copied were critical parts of the books copied.” It further observed that “courts have found relatively small quantitative uses to be fair use.” Kinko’s argued that several of the books were out-of-print, and this supported a finding of fair use. The court disagreed, noting that “damage to out-of-print works may in fact be greater since permission fees may be the only income for authors and copyright owners.” Finally, the court concluded that the fourth factor (market effect) did not support a finding of fair use. It noted that the Supreme Court has ruled that “to negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.” This test clearly was met.

Finally, the court concluded that the so-called “fair use guidelines” for classroom copying in a nonprofit educational institution did not support a finding of fair use. The guidelines were adopted in 1976 by a committee of educational institutions, authors, and publishers. The court emphasized that the fair use guidelines only authorize multiple copying by or for a teacher (for classroom use) if the copied materials do not exceed the lesser of 1,000 words or 10% of the work. This test clearly was not satisfied by the lengthy reproductions involved in this case. Further, the guidelines specify that “copying shall not substitute for the purchase of books, publishers’ reprints, or periodicals.”

What is the relevance of this case to church leaders? Simply this—churches commonly reproduce materials for use by members in educational and musical programs. Church leaders must understand that unauthorized copying of copyrighted materials constitutes copyright infringement. While “fair use” is a defense, cases such as this illustrate how limited a defense it is. Church workers wishing to duplicate copyrighted materials should obtain advance permission from the copyright owner if the applicability of the fair use defense is at all questionable. Basic Books, Inc. v. Kinko’s Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991).

Copyright Law

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0691

Related Topics: Posted:

Legal Developments

Law Firm Sued for Copyright Infringement

Be very cautious in duplicating copyrighted materials.

Richard R. Hammar, Attorney, CPA
Bio

• A Washington, D.C. law firm that routinely made three copies of a weekly newsletter for distribution to attorneys in the firm was sued recently by the newsletter publisher for $14 million. The publisher of the newsletter is claiming "statutory damages" for copyright infringement. The law firm purchased one subscription of the newsletter at an annual cost of $675. It then allegedly made three copies of each issue that it distributed to firm members. The law firm is defending its actions on the basis of "fair use." The Copyright Act permits owners of copyrighted material to engage in the "fair use" of such material. However, the concept of fair use is a narrow one that should not be viewed as a form of blanket authorization to duplicate copyrighted materials. In determining whether a particular use of a copyrighted work is a "fair use," four factors are considered. First, what is the purpose and character of the use? Duplicating a work solely to avoid paying for it will seldom if ever be "fair use." Second, what is the nature of the copyrighted work? Some materials (such as dictionaries and encyclopedias) are in a sense made to be copied and quoted, and accordingly there is a broader privilege to copy these works. The nature of other works suggests a very narrow interpretation of fair use. For example, the House Report to the Copyright Act of 1976 states that "as a general principle it seems clear 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 …. Copying … of even a small portion of a newsletter may have a significant impact on the commercial market." Third, what is the "amount and substantiality" of the portion copied? That is, how much of the copyrighted work is used? The greater the percentage of the copyrighted work that is copied, the less likely it is that the reproduction constitutes "fair use". One thing is clear—verbatim or nearly verbatim reproductions of an entire copyrighted work, such as a newsletter, will never be deemed a fair use. Fourth, what effect will the unauthorized use have upon the marketability of the copyrighted work? Note that the courts have ruled that this factor is not limited to an assessment of the impact of a single unauthorized use on the marketability of the copyrighted work. Rather, the courts may consider the likely impact should the particular unauthorized use "become widespread." There is little doubt that the law firm will fail in its effort to justify its unauthorized copying of the newsletter on the basis of "fair use." The implication of this case is clear—churches must be very cautious in duplicating any copyrighted materials. Before making copies, they must evaluate the availability of the fair use defense. If the availability of this defense is doubtful, then a church must either seek permission from the copyright owner, or purchase multiple copies.

Infringement

Related Topics: Posted:

Legal Developments

“Fair Use” and Copyright Infringement

What constitutes fair use of copyrighted materials?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-05-01 Recent Developments

Copyright Law

Richard R. Hammar, J.D., LL.M., CPA

• How much of a copyrighted book can a church or pastor quote from without committing copyright infringement? A federal appeals court decision provides some helpful guidance. An author wrote an uncomplimentary biography of a deceased religious leader. As the book was in the process of being published, a lawsuit was filed seeking to prevent the book from being publicly distributed on the ground that it contained sufficient verbatim quotations from the religious leader’s published writings to constitute copyright infringement. The author claimed that the verbatim quotations constituted legitimate “fair use.” The Copyright Act specifies that “the fair use of a copyrighted work … is not an infringement of copyright.” Unfortunately, the Act does not define “fair use,” but it does list 4 “factors” to consider in deciding whether or not a particular use of a copyrighted work constitutes fair use. Those 4 factors are (1) the purpose and character of the use, including whether such use is of a commercial nature, (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 the copyrighted work. A federal district court concluded that the biography contained too many verbatim quotations from the religious leader’s own writings to constitute fair use, and the case was appealed. A federal appeals court ruled that the biography was a fair use of the copyrighted materials, and therefore did not constitute infringement. 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’s published writings “for 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. Finally, 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.” This case contains a helpful summary of the 4 factors that the courts apply in deciding whether or not a particular use of a copyrighted work constitutes fair use. Churches often quote from copyrighted materials. Before doing so, they should consider the likelihood of their conduct being justified on the basis of fair use. For example, making a transparency of a copyrighted song will never constitute fair use, since it will fail the third factor (most if not all of the work is reproduced), and perhaps one or more of the other three factors as well. On the other hand, quoting a sentence or two out of a copyrighted book ordinarily will constitute fair use. For a complete discussion of the subject of fair use, and its application to a variety of church practices, see Richard Hammar’s Church Guide to Copyright Law, which is available form the publisher of this newsletter. New Era Publications International v. Carol Publishing Group, 904 F.2d 152 (2nd Cir. 1990).

Exceptions to Copyright Infringement

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0391

Related Topics: Posted:

Legal Developments

Copyrights

Church Law and Tax 1990-09-01 Recent Developments Copyrights Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1990-09-01 Recent Developments

Copyrights

Richard R. Hammar, J.D., LL.M., CPA

• Most copyright fees have been doubled under a law recently enacted by Congress. Applications to register copyrights must now be accompanied by a fee of $20 (up from $10 previously). In addition, the Copyright Office has been given authority to adjust copyright fees every five years to account for inflation.

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0690

Posted:

Legal Developments

Copyright Law

Church Law and Tax 1989-09-01 Recent Developments Copyright Law Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-09-01 Recent Developments

Copyright Law

Richard R. Hammar, J.D., LL.M., CPA

• A major change in the copyright law occurred a few months ago that will be of interest to churches. On March 1, 1989, the United States became a party to the “Berne Convention”—an international copyright convention established a century ago and endorsed by over 80 nations. Participation by the United States in this significant convention generally will increase the international protections available to American authors. To become a party to the convention, Congress had to make various changes in our copyright law (unwillingness to make the required changes was one of the major reasons that it took the United States a century to join the convention). Among the notable changes in our copyright law were the following two: (1) Mandatory notice of copyright has been abolished for works published for the first time on or after March 1, 1989. Failure to place a copyright notice on copies of works that are publicly distributed can no longer result in the loss of copyright. Obviously, this is a significant change in our copyright law, since prior to March 1, 1989, the failure to affix a valid copyright notice to a publicly distributed work could have resulted in loss of copyright protection. Placing an appropriate copyright notice on publicly distributed works is still strongly recommended, since it still can result in certain legal advantages to the copyright owner (e.g., it will alert the public that copyright protection is claimed in a work, and an infringer will not be able to claim that he or she “innocently infringed” upon the work of another). A copyright notice consists of three elements—the word “copyright” or the copyright symbol (a “C” in a circle), the name of the copyright owner, and the year of first publication. The Berne Convention is not retroactive. Accordingly, the notice requirements for works first published prior to March 1, 1989, remain unchanged. To illustrate, works first published between January 1, 1978 and February 28, 1989 without a valid copyright notice (as defined above) generally lost their copyright protection unless they were registered with the Copyright Office within five years of first publication (and a valid notice added to all copies distributed after discovery of the omission). Works first published before January 1, 1978 without a valid copyright notice generally lost all copyright protection immediately (with some exceptions). Obviously, the change in the notice requirement will result in considerable confusion among churches regarding the copyright status of literary or musical works. For example, suppose that a church would like to make copies of a piece of sheet music. The fact that the music does not bear a copyright notice does not mean that the work is not copyrighted. Clearly, it will now be more difficult for churches to determine whether or not they are free to make copies of some works. In summary—churches cannot safely assume that a work is “in the public domain” merely because it does not contain a valid copyright notice. (2) The penalties for copyright infringement have been increased significantly. “Statutory damages” increase from a range of $250 to $10,000 per infringement to a range of $500 to $20,000. Maximum damages for willful infringements increase from $50,000 to $100,000.

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0589

Posted:

Legal Developments

Congress Extending Copyright Violated First Amendment

A federal appeals court concluded that a special act of Congress giving the Christian Science

Richard R. Hammar, Attorney, CPA
Bio

A federal appeals court concluded that a special act of Congress giving the Christian Science Church extended copyright protection in a 1906 edition of Mary Baker Eddy's book Science and Health violated the first amendment's nonestablishment of religion clause.

In 1971, Congress enacted a special law extending copyright protection in the central and most sacred writing of Christian Science until the year 2046, in order to perpetuate the purity and integrity of the work. Without this special legislation, copyright protection would have expired no later than 1981. Such favored treatment of the central religious writing of a religious sect clearly violated the nonestablishment of religion clause: "When Congress departs from generalized copyright legislation and enacts special copyright protection for a religious entity in order to enhance its sway over the manner of religious worship, it has engaged in … an act of establishment." United Christian Scientists v. First Church of Christ, Scientists, 829 F.2d 1152 (D.C. Cir. 1987)

ajax-loader-largecaret-downcloseHamburger Menuicon_amazonApple PodcastsBio Iconicon_cards_grid_caretChild Abuse Reporting Laws by State IconChurchSalary Iconicon_facebookGoogle Podcastsicon_instagramLegal Library IconLegal Library Iconicon_linkedinLock IconMegaphone IconOnline Learning IconPodcast IconRecent Legal Developments IconRecommended Reading IconRSS IconSubmiticon_select-arrowSpotify IconAlaska State MapAlabama State MapArkansas State MapArizona State MapCalifornia State MapColorado State MapConnecticut State MapWashington DC State MapDelaware State MapFederal MapFlorida State MapGeorgia State MapHawaii State MapIowa State MapIdaho State MapIllinois State MapIndiana State MapKansas State MapKentucky State MapLouisiana State MapMassachusetts State MapMaryland State MapMaine State MapMichigan State MapMinnesota State MapMissouri State MapMississippi State MapMontana State MapMulti State MapNorth Carolina State MapNorth Dakota State MapNebraska State MapNew Hampshire State MapNew Jersey State MapNew Mexico IconNevada State MapNew York State MapOhio State MapOklahoma State MapOregon State MapPennsylvania State MapRhode Island State MapSouth Carolina State MapSouth Dakota State MapTennessee State MapTexas State MapUtah State MapVirginia State MapVermont State MapWashington State MapWisconsin State MapWest Virginia State MapWyoming State IconShopping Cart IconTax Calendar Iconicon_twitteryoutubepauseplay
caret-downclosefacebook-squarehamburgerinstagram-squarelinkedin-squarepauseplaytwitter-square