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Other Exceptions to Copyright Infringement

§ 9.05.10
Key point 9-05.10. There are several exceptions to copyright infringement, including fair use, religious displays, nonprofit performances, and authorization from a copyright owner to use his or her work.

1. Fair Use

Section 107 of the Copyright Act specifies that

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified [in section 106], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Fair use is one of the most common defenses invoked by persons charged with copyright infringement. Unfortunately, it is very difficult to define. Even section 107 does not define the term but rather recites "factors to be considered" in determining if a particular use is a fair use.

There is little doubt that many reproductions of copyrighted materials by churches will fail to constitute noninfringing fair use.

copying

Certainly any verbatim copying of an entire work will almost never constitute fair use. Examples of this type of copying include the duplication of a musical work for members of the choir, a bulletin insert, a soloist, accompanist, instrumental group, or for use as a transparency or slide. Even copying of a significant portion (in terms of either quantity or quality) of a copyrighted work ordinarily will fail to constitute noninfringing fair use. An example would be the copying of only the lyrics (and not the melody) of a copyrighted chorus or hymn. In all of these cases, a finding of fair use will be unlikely because (1) such acts of copying constitute mere reproductions of a work in order to use it for its intrinsic purpose; (2) the nature of the work involved does not suggest a broad definition of fair use; (3) the amount of copyrighted material that is copied is significant in terms of both quantity and quality; (4) similar acts of copying by other churches would "adversely affect the market for or value of the copyrighted work." In other words, none of the four fair use factors ordinarily will support a finding of fair use.[99] But cf. New Era Publications International v. Carol Publishing Group, 904 F.2d 152 (2nd Cir. 1990). A federal appeals court ruled that the use of several extended quotations of a religious leader reproduced without permission in an uncomplimentary biography constituted fair use. The court evaluated each of the 4 "fair use factors" and concluded that all of them supported the finding of fair use. With regard to the first factor, the court concluded that biographies, and particularly critical biographies, generally constitute fair use. The proposed book used quotations from the religious leader'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.

Another difficult question is the verbatim copying of only small portions of copyrighted material. When does such use constitute infringement on the copyright owner's exclusive right of reproduction? There is no easy answer to this question. Courts generally evaluate both the quantity of copyrighted material that is copied verbatim, and its quality. That is, what percentage of the copyrighted work was copied, and how much of the allegedly infringing work consisted of the copied material? Further, how significant was the "quality" of the copied material? Was it the essence of the work as a whole, or was it incidental or insignificant?

A federal appeals court, in a case involving a religious organization's unauthorized use of copyrighted materials, observed:

The extent of copying must be assessed with respect to both the quantitative and the qualitative significance of the amount copied to the copyrighted work as a whole. In the first place, even if the borrowed expression from the book does not exceed one percent of defendants' course materials (itself a questionable calculation in light of defendants' overly narrow view of the book's protected expression), that argument is not really on point, because it is the relative portion of the copyrighted work—not the relative portion of the infringing work—that is the relevant comparison. Taken to its extreme, such a view would potentially permit the wholesale copying of a brief work merely by inserting it into a much longer work. Moreover, though the amount of expression copied may be quantitatively small with respect to the length of the book (constituting approximately 180 prose pages), the qualitative importance of the portion copied … is significant enough to preclude the grant of summary judgment for defendants on this ground. …
Two points bear particular emphasis. First, "the amount and substantiality of the portion used" is measured with respect to the "copyrighted work as a whole," not to the putatively infringing work. Defendants therefore go astray in focusing on the argument that the copyrighted expression taken from [its copyrighted material] amounts to a small fraction of the [allegedly infringing work]. A taking may not be excused merely because it is insubstantial with respect to the infringing work. No plagiarist can excuse the wrong by showing how much of his work he did not pirate.
Second, in analyzing the amount and substantiality of the portion used, a court considers not only the quantity of the materials used, but their quality and importance, too. Quantitatively, the amount of verbatim copying or paraphrasing appears to be a small portion of [the copyrighted material]. But the amount taken may be substantial from a qualitative perspective if the defendant has copied the "heart of the book." That may very well be the case here; as the district court observed, "the inherent value of [the copyrighted material] comes not just from the sales techniques and concepts, but particularly from the way they were selected, coordinated, or arranged. … Nonetheless, we might have found the bare-bones copying of chapter headings and subheadings … to be insubstantial, if defendants had stopped there. In such a scenario, the amount taken might have been deemed negligible because one could hardly imagine that the headings and subheadings, divorced from context and any explanation, could have a substitution effect on the market for [the copyrighted materials]. But the incorporation of [substantive materials] adds flesh to the organizational bones and renders the whole of defendants' copying substantial enough that demand for the book or derivative works might be reduced.[100] Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 2008 WL 2652291 (11th Cir. 2008) quoting the United States Supreme Court's ruling in Harper & Row, 471 U.S. 539 (1985).

The courts have found copying of the following amounts of copyrighted material to constitute copyright infringement:

  • two identical bars of a musical work;[101] Robertson v. Batten, Barton, Durstine and Osborn, Inc., 146 F. Supp. 795 (S.D. Cal. 1956).
  • four notes and two words, which comprised the "heart of the composition;"[102] Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y. 1980), aff'd, 623 F.2d 252 (2nd Cir. 1980).
  • three sentences (that were used for advertising purposes);[103] Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302 (E.D. Pa. 1938).
  • three sentences;[104] Amana Refrigeration, Inc. v. Consumers Union of the United States, Inc., 431 F. Supp. 324 (N.D. Iowa 1977).
  • eight sentences;[105] Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 508 F. Supp. 854 (N.D. Ga. 1981).
  • less than one percent of the copyrighted work;[106] Hedeman Products Copr. v. Tap-Rite Products Corp., 228 F. Supp. 630 (D.N.J. 1964).
  • the phrase "put on a happy face;"[107] American Greetings Corp. v. Kleinfab Corp., 400 F. Supp. 228 (S.D.N.Y. 1975).
  • at least one-third of 17 letters and at least ten percent of 42 letters; letters were paraphrased on at least 40 percent of a book's 192 pages, and the copied material comprised an important part of the whole;[108] Salinger v. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987).
  • the fair use defense was not necessarily unavailable to a religious organization that copied an entire magazine article mocking a prominent minister;[109] Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148 (9th Cir. 1986).
  • copying of single words and short phrases from copyrighted material constituted noninfringing fair use.[110] Arica Institute, Inc. v. Palmer, 970 F.2d 1067 (2nd Cir. 1992).

However, copying of the following portions of copyrighted material was held not to constitute infringement upon the copyright owner's exclusive right of reproduction:

  • a sentence and a half; [111] Toulmin v. The Rike-Kumler Co., 316 F.2d 232 (6th Cir. 1963).
  • 16 words;[112] Suid v. Newsweek Magazine, 503 F. Supp. 146 (D.D.C. 1980).
  • two sentences.[113] Jackson v. Washington Monthly Co., 481 F. Supp. 647 (D.D.C. 1979).

What about paraphrasing? For example, does infringement occur if a reproduction does not contain any "word-for-word" copying of original material but merely paraphrases it? Probably so, since a number of courts have held that "paraphrasing is tantamount to copying in copyright law."[114] See, e.g., Davis v. E.I. duPont de Nemours & Co., 240 F. Supp. 612 (S.D.N.Y. 1965). See also Donald v. Zack Meyer's T. V. Sales and Service, 426 F.2d 1027 (5th Cir. 1970) (in copyright law, paraphrasing is equivalent to outright copying). Another court has observed that copying "cannot be limited literally to the text, else a plagiarist would escape by immaterial variations."[115] Nichols v. Universal Pictures Co., 45 F.2d 119 (2nd Cir. 1930).

the fair use guidelines

One of the most common fair use issues concerns the reproduction of copyrighted materials for educational purposes. In 1975, negotiating teams representing authors, publishers, and the "Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision" met informally in an attempt to reach a "meeting of the minds" as to permissible educational uses of copyrighted material. The parties reached an agreement, known as the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals. The House Report on the Copyright Act of 1976 reprinted the Agreement in full, and further noted that the guidelines set forth in the Agreement "are a reasonable interpretation of the minimum standards of fair use."[116] House Report on the Copyright Act of 1976, pp. 68-70. Representatives of the American Association of University Professors and of the Association of American Law Schools strongly criticized the guidelines on the ground that they were too restrictive with respect to classroom situations at the college and graduate level.

The educational guidelines are very restrictive, and rarely will apply to churches. They apply primarily to copying by teachers in not-for-profit educational institutions for their own research or class preparation, and also to limited copying for classroom use. There are strict requirements as to the amount of material that can be copied under the guidelines for classroom use. For example, in the case of literary works ("prose"), teachers are limited to (a) either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words. Other requirements apply. The guidelines also warn that "copying shall not substitute for the purchase of books, publishers' reprints or periodicals."

Shortly after the guidelines for books and periodicals were formulated, representatives of music publishers and music educators met to draft guidelines relative to music. It must be emphasized that the stated purpose of the guidelines, as with the guidelines for books and periodicals, was "to state the minimum and not the maximum standards of educational fair use." The parties acknowledged that "there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use." Nevertheless, the House Report on the Copyright Act of 1976 reprinted the guidelines in full,[117] Id. at pp. 70-71. and further noted that the guidelines "are a reasonable interpretation of the minimum standards of fair use." Like the guidelines for books and periodicals, the music guidelines are very restrictive and rarely will apply to churches. Perhaps most importantly, these guidelines permit "emergency photocopying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course." Clearly, this provision will be of little use to churches, since it requires that (1) copies of music have been purchased, (2) they are unavailable for an imminent performance because they are suddenly destroyed or lost, and (3) the church purchases replacement copies in due course.

The application of the fair use defense to religious organizations is illustrated by the following cases.

Case studies
A federal appeals court ruled that the use of several extended quotations of a religious leader reproduced without permission in an uncomplimentary biography constituted fair use. The court evaluated each of the 4 "fair use factors" and concluded that all of them supported the finding of fair use. With regard to the first factor, the court concluded that biographies, and particularly critical biographies, generally constitute fair use. The proposed book used quotations from the religious leader'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. 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.[118] New Era Publications International v. Carol Publishing Group, 904 F.2d 152 (2nd Cir. 1990).
A federal appeals court ruled that a religious chorus did not infringe upon the copyright of an allegedly similar song composed by another songwriter a few years earlier. The court noted: "Even a casual comparison of the two compositions compels the conclusion that the two compositions are practically identical. Given the limited number of musical notes (as opposed to words in a language), the combination of those notes and their phrasing, it is not surprising that a simple composition of a short length might well be susceptible to original creation by more than one composer. This is particularly true in certain genres of music where familiar phrasing is present. Here the genre is church music. We are only dealing with a basic melody—not lyrics or harmonic background or accompaniment—here, only a short melody is at issue. However, in the realm of copyright, identical expression does not necessarily constitute infringement. Just as two paintings of the same subject in nature may appear identical, the two paintings' origins may be of independent creation. We have cautioned trial courts "not to be swayed by the fact that two works embody similar or even identical ideas." The court noted that composer of the allegedly infringing music could "fully negate any claim of infringement if he can prove that he independently created [his work]." It concluded that there was substantial evidence that the allegedly infringing work was independently created, including affidavits of several witnesses who corroborated the independent creation of the allegedly infringing work.[119] Calhoun v. Lillenas Publishing, 298 F.3d 1228 (11th Cir. 2002).
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." It concluded that she failed all four fair use factors. The purpose of the copying was commercial (the copied materials were sold to students); the nature of the copyrighted 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."[120] Bridge Publications, Inc. v. Vien, 827 F. Supp. 629 (S.D. Cal. 1993).
A Michigan court ruled that a church had to pay $1.6 million in damages for recording a soloist's performance during a religious service without her permission and then selling CDs of the service to church members and the general public. The court concluded that the church's failure to obtain the soloist's permission to record and distribute her solo was a negligent act. Note that this case was not a copyright infringement case. Rather, the plaintiff sued the church for the unauthorized recording and sale of a solo she performed during a worship service. This theory of liability is completely separate from copyright infringement.[121] Edwards v. Church of God in Christ, 2002 WL 393577 (Mich. App. 2002).

2. Religious Displays

Section 109(c) provides that "the owner of a particular copy lawfully made … is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located." Section 109(d) provides further that the privilege granted under section 109(c) does not, unless authorized by the copyright owner, "extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it."

This section is of considerable relevance to many churches, and particularly to those that use transparencies and slides of copyrighted music in the course of worship services. Recall that one of the exclusive rights of a copyright owner is the right to display a copyrighted work publicly. Section 109(c) limits this exclusive right by adopting the general principle that the lawful owner of a copy of a copyrighted work should be able to put the copy on public display without the consent of the copyright owner. The House Report to the Copyright Act of 1976 provides that a copyright owner's exclusive right of public display

would not apply where the owner of a copy wishes to show it directly to the public, as in a gallery or display case, or indirectly as through an opaque projector. Where the copy itself is intended for projection, as in the case of a photographic slide, negative, or transparency, the public projection of a single image would be permitted as long as the viewers are "present at the place where the copy is located". … [T]he public display of an image of a copyrighted work would not be exempted from copyright control if the copy from which the image was derived were outside the presence of the viewers. … Moreover, the exemption would extend only to public displays that are made "either directly or by the projection of no more than one image at a time."[122] Id. at pp. 79-80.

Perhaps most significantly, the House Report specifies that section 109(d) qualifies the privilege granted in section 109(b) "by making it clear that [it does] not apply to someone who merely possesses a copy or phonorecord without having acquired ownership of it. Acquisition of an object embodying a copyrighted work … carries with it no privilege to … display it publicly under section 109(b)."[123] Id. at p. 80.

Section 109(c) would authorize the use of an opaque projector to display a copy of a musical work in the course of choir rehearsals or church services since the opaque projector displays an image of a lawfully made copy consisting ordinarily of either sheet music or a page in a hymnal. But if a church makes a transparency of an existing copyrighted musical work without authorization, such a transparency would not be a lawfully made copy and thus could not be displayed without infringing the owner's copyright. Section 109(b) would authorize the display of a transparency in the course of choir rehearsals or church services if the transparency constituted a lawfully made copy. This could occur in three ways. First, a transparency purchased from an authorized vendor would be a lawful copy and could be displayed publicly. Second, a transparency of a public domain work could be fabricated and displayed. Third, a transparency made with the express permission of the copyright owner would be a lawful copy.
Congress has stated that the purpose of section 109 is not only to preserve the traditional privilege of the owner of a copy to display it directly, but also to place reasonable restrictions on the ability of others to display it indirectly in such a way that the copyright owner's market for reproduction and distribution of copies would be affected.[124] Id. Accordingly, it is likely that continued public display of a copyrighted work by a church would tend to result in a loss of the protection afforded by section 109(b). For example, if a church choir director projected a copyrighted musical arrangement on a screen for several weeks in succession in an effort to have his choir memorize the work, the repetitive display of the work might not be eligible for protection under section 109(b).

3. The Nonprofit Performance Exception

Section 110(4) contains a general exception to the exclusive right of a copyright owner to publicly perform his or her copyrighted work. It provides:

[P]erformance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, [does not constitute copyright infringement] if—(A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions; (i) the notice shall be in writing and signed by the copyright owner or such owner's duly authorized agent; and (ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and (iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

Let's consider a number of important aspects of this important exemption.

  1. The performance must not have a profit motive.
  2. No fee or compensation can be paid to the performers (or promoters or organizers) for the performance. This condition does not prevent performers from receiving a salary for duties that include a particular performance. For example, performances by a school band do not lose the benefit of this exemption merely because the band conductor is a music teacher who receives an annual salary for performing his duties, so long as he receives no fee or payment for any particular performance.
  3. There must either be no direct or indirect admissions charge, or alternatively, if an admissions charge is assessed, then any amounts left after deducting the reasonable costs of producing the performance must be used solely for educational, religious, or charitable purposes. If there is an admissions charge, then the copyright owner is given the authority to "veto" the performance by serving upon the person responsible for the performance a notice objecting to the performance. Such a notice must be in a writing that is signed by the copyright owner; it must be served upon the person responsible for the performance at least seven days before the date of the performance; and, it must state the reasons for the objection. The impact of this provision is limited severely by the fact that section 110(4) does not require that the copyright owner be notified that his or her work is going to be performed at a nonprofit event with an admissions charge.

4. Authorization from Copyright Owner

Even if none of the exceptions to copyright infringement discussed above is clearly applicable, a particular use of copyrighted material may be authorized by the copyright owner. For example, assume that a church choir director wishes to perform a particular song during a worship service, that he has a single octavo, and that he cannot obtain additional copies locally and it is too late to order copies by mail. While this "emergency need" to make unauthorized copies is not a recognized exception to copyright infringement, the director is free to contact the copyright owner directly and request permission to make copies. If permission is granted, then the making of copies will not constitute infringement.

Many music publishers have very liberal policies with respect to church music. Some music publishers grant "blanket licenses" to churches, authorizing them to make copies of any song in the publisher's repertory for an annual fee. Occasionally, several publishers and composers will assign the right to license the use of their works to a single company in return for the payment of a royalty. The company acts as a clearinghouse on behalf of the publishers and composers, granting blanket licenses to churches in exchange for a fee that is apportioned among the various publishers and composers. Perhaps the first such arrangement involving religious music was implemented by F.E.L. Publications, Ltd., in the 1970s. F.E.L. obtained the rights to 1400 songs, and offered annual licenses to churches for a fee of $100. The annual license authorized a church to copy any of the listed songs. Further, the purchaser was granted the right to perform the music and text at not-for-profit performances for purposes of worship or classroom use. A church that wanted to use one of F.E.L.'s listed songs could not deal directly with any of the authors or composers whose musical works or copyrights had been exclusively assigned to F.E.L.

F.E.L.'s annual license differed from traditional marketing of music in that it did not distinguish between songs, but charged a lump sum for which the licensee received the use rights to all of F.E.L.'s 1400 available compositions, even though the purchaser desired to use only a few of the more popular songs. It also differed from usual marketing practices in that it relied heavily on the licensee to patrol its own use. On the anniversary date of the license, the customer had to destroy all copies made of the virtually unlimited number allowed, unless it elected to pay F.E.L another $100 for an additional annual license.[125] F.E.L. Publications v. Catholic Bishop of Chicago, 506 F. Supp. 1127 (N.D. Ill. 1981).

A federal district court found the F.E.L. blanket licensing scheme to be a "tying contract" that was illegal under the Sherman Antitrust Act. Specifically, the court observed that

by obtaining assignments of the songs with the right, on behalf of the composers, to license their use for an annual fee, and by obtaining assignment of copyrights for the same purpose, F.E.L. either absolutely controls or has ownership power over copyrights to hymnals, songbooks, and the 1400 religious songs listed in its master title index. A Catholic church or parish that wants to purchase the right to copy and use a song either in one of F.E.L.'s hymnals, songbooks, or those listed in its master title index, cannot deal directly with owners of the copyrighted works listed by F.E.L. In most instances, a church or parish does not desire permission to use all of F.E.L.'s listed songs; there is no interest in all of the songs in F.E.L.'s hymnals, songbooks, and listed in the master index. The most desired are about 25 or 30 of the more popular or "blockbuster" songs. Yet, F.E.L.'s policy has always been "all or nothing"; the church or parish desiring to purchase the right to copy and use some of the listed songs has to pay for permission to use all of them. The songs are different; in many instances, the composers are different, yet purchase of the right to use the more popular has been tied by F.E.L. to the purchase of all, including the less popular. It is now well known that a tying arrangement whereby a party agrees to sell one product but only on condition that the buyer also agrees to purchase a different or tied product is prohibited by the Sherman Act, and by the Clayton Act.

The F.E.L. license was an exclusive license, meaning that a composer gave F.E.L. the sole right to market his or her song. While an in-depth discussion of the legality of such licenses is beyond the scope of this book, it should be noted that a few courts have upheld the legal validity of nonexclusive licenses. For example, ASCAP and BMI operate in much the same manner as F.E.L. in the sense that members give ASCAP and BMI the right to license the performance or broadcast of members' copyrighted works. ASCAP and BMI in turn grant blanket licenses authorizing licensees, for a flat fee, to use any work in the ASCAP or BMI repertory. ASCAP and BMI have been the target of several lawsuits alleging violation of federal antitrust laws (because of "tying arrangements"). So far, ASCAP and BMI blanket licenses have been upheld on the ground that they are nonexclusive. This means that ASCAP and BMI members retain the right to directly license their works to third parties. Churches that obtained a license from F.E.L. were not afforded this right (they granted F.E.L. the exclusive right to license the performance and reproduction of their works).

the CCLI license

A similar approach is offered by Christian Copyright Licensing, Inc. (CCLI) of Portland, Oregon. CCLI has attempted to avoid the antitrust issue by having publishers and composers enter into nonexclusive assignments of their musical works with CCLI. While CCLI acts as a clearinghouse for several publishers and composers, the publishers and composers remain free to directly market and license their works to individual churches. Churches that purchase a blanket license from CCLI are authorized to make copies of any song in the CCLI repertory (which includes the works of several publishers and composers) for congregational use, for the duration of the license period (ordinarily one year). This means, for example, that churches are free to make bulletin inserts and transparencies. Churches also are authorized to make audio and video recordings of services that contain copyrighted music (in the CCLI repertory), provided that copies of the recording are distributed for less than a specified cost, and do not exceed a specified number. The making of certain musical arrangements is also permitted.

Churches must make a record of what songs they sing or perform in the course of a year, and file reports with CCLI. These reports help CCLI allocate royalties to the various publishers and composers. The fee that a church pays is based on a number of variables, including the size of the church and the kind of copying involved. In principle, the CCLI approach has the advantage of making compliance with copyright law much easier.

Church leaders can learn more about the CCLI license by visiting the CCLI website (www.ccli.com) or by calling 1-800-234-2446. Further, note that CCLI licenses only apply to limited cases of reproduction and performance of religious musical works. They do not convey any authorization to duplicate literary works (books and articles), and they do not apply in all cases to reproduction or performance of music. As a result, a CCLI license is should not be viewed as a solution to all of a church's copyright concerns.

Tip. CCLI also offers licenses that authorize (subject to certain limitations) the use of videos at church activities, and the use of television and movie clips as sermon illustrations.

What a CCLI License Does and Does Not Permit

A CCLI license DOES authorize a church to do the following:
  • Print songs and hymns in bulletins, programs, liturgies, and song sheets.
  • Create your own customized songbooks or hymnals.
  • Create overhead transparencies, slides, or use any other format whereby songs are visually projected, such as computer graphics and projection.
  • Arrange, print and copy your own arrangements, vocal and instrumental, of songs where no published version is available.
  • Record your worship services by audio or video means, provided you only record "live" music (instrumental and vocal). Accompaniment "tracks" cannot be reproduced. You may also charge up to a specified amount for audio and video recordings.
A CCLI license DOES NOT authorize a church to do the following:
  • Photocopy or duplicate octavos, cantatas, musicals, hand bell music, keyboard arrangements, vocal scores, orchestrations, or other instrumental works.
  • Translate songs from English into another language. This can only be done with the approval of the respective publisher.
  • Rent, sell, or lend copies made under the license to groups outside the church or to other churches. (It is permissible to distribute tapes to shut-ins, missionaries, or others outside the church.)
  • Assign or transfer the license to another church or group without CCLI's approval.
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