Key point 9-05.04. Copyright infringement occurs when one violates any one or more of the exclusive rights of a copyright owner.
Section 501 of the Copyright Act states that “anyone who violates any of the exclusive rights of the copyright owner … is an infringer of the copyright.” Of the five exclusive rights, the one causing the most difficulties for churches is the copyright owner’s exclusive right to reproduce the work (i.e., make copies). Obviously, an infringement occurs when someone makes a verbatim copy of copyrighted material. But what if someone produces a work that is similar but not identical to another’s copyrighted work? Can this constitute infringement on the copyright owner’s exclusive right of reproduction?
The courts generally have resolved this question by applying the following presumption—access by the alleged infringer to the copyrighted material, plus substantial similarity between the allegedly infringing material and the copyrighted work, creates a presumption of infringement. The alleged infringer of course can claim that his work was an independent creation. However, the closer the similarity between the two works, the less likely it is that such a claim will prevail. Other relevant factors to consider in such a case would be the experience and training of the alleged infringer, his previous publishing record, the likelihood that he was capable of independently producing the work, and prior instances of infringement on his part. Some copyright owners intentionally insert errors in their works. The alleged infringer’s claim of independent creation will seldom succeed if such errors are duplicated.
The House Report to the Copyright Act of 1976 specifies that “wide departures or variations from the copyrighted work would still be an infringement as long as the author’s ‘expression’ rather than merely the author’s ‘ideas’ are taken.”88 House Report on the Copyright Act of 1976, p. 61.
Such precedent leaves little doubt that most reproductions of copyrighted materials by churches will constitute an infringement of the exclusive right of copyright owners to reproduce their works. To cite just a few examples—the copying of copyrighted chorus or hymn lyrics onto a transparency or bulletin insert ordinarily will amount to an infringement, since a substantial quantity of the original work is reproduced, the amount reproduced is significant in terms of quality, and the copy serves the same function as the original work. To illustrate, in one case a publisher reproduced the chorus lyrics of two famous copyrighted songs in songsheet pamphlets, maintaining that the reproduction of only chorus lyrics of copyrighted songs was so trivial in nature and amount as to constitute noninfringing fair use. The court found such reproductions to be an infringement, and rejected the publisher’s claim that its reproductions constituted fair use. Though only the chorus lyrics were reproduced (and not the regular verse lines or music), the court found that “the chorus of a musical composition may constitute a material and substantial part of the work and it is frequently the very part that makes it popular and valuable.”89 Johns & Johns Printing Co. v. Paull-Pioneer Music Corp., 102 F.2d 282 (8th Cir. 1939).
Similarly, another court found the reproduction of chorus lyrics in a song sheet magazine to be an infringement rather than fair use, since the reproduction “met the same demand on the same market” as the original.90 Leo Feist, Inc. v. Song Parodies, Inc., 146 F.2d 400 (2nd Cir. 1944).
The courts in each of these two cases gave a narrow interpretation of fair use because the function served by the infringing use directly satisfied a function that was served by the copyright owner’s sheet music.
Obviously, verbatim copying of the lyrics and melody of a copyrighted musical work (for use by the choir, a soloist, an accompanist, or an instrumental group) would constitute infringement.
Often overlooked is the fact that both the musical score and lyrics of a hymn or chorus are eligible for copyright protection. Section 102(a) of the Copyright Act states that copyright protection subsists in original “musical works, including any accompanying words,” that are reduced to a tangible form. Persons who compose both the music and lyrics of an original hymn are entitled to copyright protection for both. This has important consequences. It means, primarily, that no one can make copies of either the music or lyrics without authorization. To illustrate, a church will infringe upon this copyright protection if it inserts only the words of a particular song in a booklet or on a song sheet, or types them on a piece of paper and projects them onto a screen.
It is also important to recognize that one of the copyright owner’s exclusive rights is the right to prepare derivative works based upon the copyrighted work. Derivative works include musical arrangements. Therefore, it is not permissible for anyone other than the copyright owner or one whom the copyright owner has authorized to create an arrangement of a copyrighted musical work. To illustrate, one church choir director who made a choral arrangement of a copyrighted hymn without authorization was found to be guilty of copyright infringement.91 Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962).
The director’s arrangement consisted of the entire score of the copyrighted hymn plus the insertion of a four-measure introduction. The director made several copies of his arrangement on the church’s duplicating machine. Each copy contained the director’s name and identified him as the arranger. The copyright owner brought a lawsuit against the director and his church, alleging copyright infringement. A federal appeals court found the director and his employing church jointly liable for copyright infringement. The court found the director’s lack of intent to infringe to be irrelevant, and concluded that the copying of all or substantially all of a copyrighted musical work could not be considered “fair use.”
It is permissible to make arrangements of preexisting musical works if the preexisting work is in the public domain or if the copyright owner of the preexisting work grants permission. Section 103 of the Act states that lawfully made derivative works are entitled to copyright protection if they otherwise qualify. Section 103 also stipulates that copyright protection in a derivative work extends only to the material contributed by the author of such work as distinguished from the preexisting material employed in the work. Thus, although a musical arrangement of a public domain song is subject to copyright protection, the copyright protection extends only to the new musical score and not to the lyrics of the preexisting work. As a result, churches can copy the lyrics of such arrangements without infringing the arranger’s copyright.
A federal court has rejected the claim that the First Amendment right to freely exercise one’s religion immunized from liability for copyright infringement a group of priests who toured the country giving unauthorized performances of the rock opera Jesus Christ Superstar.92 Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376 (D. Conn. 1972), rev’d on other grounds, 530 F.2d 1096 (2nd Cir. 1976), cert. denied, 429 U.S. 848 (1976).
Case studies
• 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.93Meadowgreen Music Company v. Voice in the Wilderness Broadcasting, Inc., 789 F. Supp. 823 (E.D. Tex. 1992).
• 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.” 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.94 ABKCO v. Stellar Records, 96 F.3d 60 (2nd Cir. 1996).
• 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.”95 Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997).