Pastor, Church & Law

§ 9.05.03

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Section 106 of the copyright law gives the following six "exclusive rights" to a copyright owner:

1. reproducing the copyrighted work in copies or phonorecords;
2. preparing derivative works based upon the copyrighted work;
3. distributing copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, performing the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, displacing the copyrighted work publicly; and
6. in the case of sound recordings, performing the copyrighted work publicly by means of a digital audio transmission.

Key point. Section 106A of the Copyright Act grants additional rights to authors of "works of visual art." These works include paintings, sculptures, and photographic images produced for exhibition purposes. Such works have little relevance to most churches and are not addressed in this text.

These exclusive rights are sometimes referred to as the rights of:

• reproduction
• adaptation
• publication
• performance
• display

These rights comprise the "bundle" of rights that constitute or define copyright. As noted elsewhere in this book, each exclusive right may be subdivided indefinitely, and each subdivision of an exclusive right may be owned and enforced separately.

It is unlawful for anyone to violate any of the exclusive rights of a copyright owner. These rights, however, are not unlimited in scope. The approach of the Copyright Act is to set forth the copyright owner's exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in sections 107 through 122 of the Act. In some cases, these limitations are exemptions from infringement liability. One such limitation is the doctrine of "fair use." In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with certain conditions. Many of the limitations on exclusive rights are discussed later in this chapter.

A. Reproduction

Section 106 of the Copyright Act gives the owner of a copyright in a work the exclusive right "to reproduce the copyrighted work in copies or phonorecords." This is perhaps the most important right that a copyright owner has, and it helps to explain the origin of the term "copyright"—i.e., the right to make copies. Read together with the relevant provisions of section 101, the right to reproduce a copyrighted work means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." A copyrighted work is infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation.

meaning of "reproduction"

The courts have helped to clarify, the meaning of the term "reproduction." Consider the following:

1. Copying of a work into a different medium constitutes reproduction. To illustrate, copying a piece of sheet music onto a slide or transparency is a reproduction.
2. Copying can be done with a machine or by hand. It is no defense to argue that a copy was made "freehand."[84] Universal Athletic Sales Co. v. Salkeld, 376 F. Supp. 514 (W.D. Pa. 1974).
3. Copying need not be verbatim to constitute reproduction. All that is required is that the infringing work is substantially similar to the copyrighted work, and that the infringing work was the product of copying rather than independent effort.
4. Copying constitutes a reproduction even if done for purely private purposes. It is the act of making the reproduction that violates the copyright owner's exclusive right, regardless of whether or not the infringer makes the copy for his or her own private use or distributes it publicly.[85] 2 Sony Corp. v. Universal City Studios, Inc, 104 S. Ct. 774 (1984); Walt Disney Productions v. Filtration Associates, 628 F. Supp. 871 (C.D. Cal. 1986).
5. The making of a single copy violates the copyright owner's exclusive right of reproduction. There is no requirement that multiple copies be reproduced.[86] House Report on the Copyright Act of 1976, p. 61.

common church practices

It is the exclusive right of reproduction that poses the greatest risk of copyright infringement for most churches, since churches so commonly duplicate copyrighted materials. Consider just a few examples:

• making transparencies
• duplicating copyrighted music for use by a choir, soloist, accompanist, or instrumental group
• printing the words of a chorus or hymn on a bulletin insert
• printing copyrighted materials in a church newsletter
• duplicating copyrighted materials in a church's educational program (e.g., Sunday School or private school)
• recording of worship services on audio and video tape and the distribution of such tapes
• posting copyrighted pictures and text on a church's website

All of these acts, and many others, constitute potential infringements on a copyright owner's exclusive right of reproducing his or her copyrighted works. Whether infringement actually exists in a particular case will depend on the significance of the material copied both in terms of quantity and quality (see section 5.2), and the availability of one or more of the defenses to infringement discussed in Chapter 6. Most music publishers view the acts of copying described above to constitute copyright infringement.

Example. Pastor Mike is a minister of music. To save the church money, and to avoid copyright infringement, he transcribes by hand a copyrighted song and then makes copies for each member of the church choir. The fact that Pastor Mike made the copy by hand does not prevent the act from constituting copyright infringement.

Example. Pastor Mike makes a transparency containing only the lyrics of a song. He did not have authorization from the copyright owner. The making of the transparency infringes upon the copyright owner's exclusive right of reproduction. It does not matter that only the lyrics were copied (this is still a substantial reproduction of the copyrighted song), that a different "medium" was used (i.e., a transparency compared to a piece of sheet music), that the copy was made by hand, that only a single copy was made, or that Pastor Mike uses the transparency only in the course of worship services and does not distribute the work publicly.

B. Adaptation

derivative works

Section 106 gives the copyright owner the exclusive right "to prepare derivative works based upon the copyrighted work." Section 101 defines derivative works to include "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted." Only the copyright owner has the right to make a derivative work based on a copyrighted work. The making of a derivative work based on a copyrighted work without authorization from the copyright owner is an act of infringement.

Example. Dave composed a song (lyrics and music) this year. He owns the copyright in the work. Anne hears the song a few years later, and, without authorization, composes an arrangement using the same lyrics but different music. She has infringed upon Dave's exclusive right to make derivative works based on the original copyrighted work.

Example. Dave writes a book this year. It is copyrighted in the name of the publisher that published the work. Ten years later, Dave decides to write a second edition of the same work. He may not do so without authorization front the publisher, since only the publisher (as copyright owner) has the right to make derivative works based on the original.

C. Distribution

The copyright law gives the copyright owner the exclusive right to distribute copies or phonorecords of a copyrighted work to the public. This provision gives a copyright owner the right to control the first public distribution of an authorized copy or phonorecord of his or her work, whether by sale, gift, loan, rental, or lease. Likewise, any unauthorized public distribution of copies or phonorecords that were unlawfully made would be an infringement.

As section 109 of the Copyright Act makes clear, however, the copyright owner's rights cease with respect to a particular copy or phonorecord once he or she has parted with ownership of it, meaning that a purchaser of an authorized copy of a work can later sell or in any other manner dispose of that particular copy.

D. Performance

A copyright owner has the exclusive right to publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. To "perform" a work, according to the Copyright Act, includes reading a literary work aloud (book, article, etc.), singing or playing music, dancing a choreographic work, and acting out a dramatic work or pantomime.

A performance is "public" if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Performances in semipublic places such as schools, churches, and summer camps ordinarily are considered public performances.

broadcasts

What about a live performance that is transmitted to the public via radio or television? For example, let's assume that the morning worship services at a church are broadcast over a local radio station. What is the effect of such an arrangement? There are two considerations to note. First, if there are no copyrighted songs or other copyrighted materials performed during the service, there ordinarily will not be a problem in broadcasting the service. Second, even if copy-righted music is performed during the service, such a performance is exempt from copyright infringement so long as it occurs in the course of a religious service at a church or other place of religious assembly. However, this exemption (which is discussed fully in Chapter 6) does not extend to public broadcasting over radio or television. Such transmission of the performance of copyrighted materials constitutes a separate performance, since section 101 of the Copyright Act makes clear that a public performance includes not only the initial performance but also any further act by which that performance is transmitted or communicated to the public.[87] Schumann v Albuquerque Corp., 664 F. Supp. 473 (D.N.M. 1987).

In most cases, such public broadcasts will not constitute an infringement upon the copyright owner's exclusive right of performance if the radio or television station has an appropriate license with ASCAP, BMI, SESAC or some other performing rights society. It should be the broadcaster's responsibility to ensure that it can broadcast worship services containing live performances of copyrighted materials, though it would be prudent for churches that broadcast their services to question the broadcaster regarding the scope and coverage of its license agreements with the various performing rights societies.

E. Display

A copyright owner has the exclusive right to display publicly a copyrighted literary, musical, dramatic, or choreographic work, pantomime, or audiovisual work. Section 101 of the Copyright Act defines "display" as the showing of a copy of a work "either directly or by means of a film, slide, television image, or any other device or process." Note that this definition covers the display of a "copy" of a work. Since "copies" are defined as including the material object in which the work is first fixed, the right of public display applies to original works as well as to reproductions of them.

In addition to the direct showings of a copy of a work, a "display" would include the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube or similar apparatus connected with any sort of information storage and retrieval system (i.e., a computer monitor).

The exclusive right of the copyright owner extends only to public displays of the copyrighted work. As noted above, according to section 101, a performance or display is "public" if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Performances in semipublic places such as schools, churches, and summer camps ordinarily will be public performances.