Our church’s music director had created a “chorus booklet” containing about 100 of our congregation’s favorite songs. She made 200 copies of the booklet, and placed them in the hymnal racks next to our church hymnals. She made the booklets because she could find no published materials containing all of our favorite songs. Some members have asked if our church is violating the copyright law by using these chorus booklets. Are we? If so, what are the potential damages? Half of the songs in the booklet are copyrighted.
The copyright law confers several “exclusive rights” upon copyright owners, including the right to make copies of the work. Any violation of a copyright owner’s exclusive rights constitutes copyright infringement. When the music director made copies of 50 copyrighted songs, she committed copyright infringement because she violated the exclusive right of the copyright owners to make copies of their works. This assumes that she did not receive advance permission from the copyright owners.
(1) legal consequences for infringement
A copyright owner whose work has been infringed may elect to recover “statutory damages” instead of actual damages. Because of the difficulty in proving actual damages, copyright owners usually prefer to pursue statutory damages. Section 504(c) of the Copyright Act specifies that:
the copyright owner may elect … to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.
Statutory damages are awarded in the discretion of the court whenever they are elected by a copyright owner who has established that one or more of his or her exclusive rights has been infringed. Perhaps the most important feature of statutory damages is that they are not dependent upon proof of actual damages. Rather, they are awarded automatically, in the discretion of a court, once infringement has been established. Section 504 establishes a maximum and a minimum amount of statutory damages, and authorizes the courts to choose whatever amount between and including such amounts that they consider to be “just.”
While minimum statutory damages generally are $750 for “all infringements involved in an action, with respect to any one work,” section 504(c) goes on to provide that a court has the discretion to reduce the statutory damages from $750 to $200 if the infringer “sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright … . If the music director can prove that she had no reason to believe that her acts constituted copyright infringement, then statutory damages are avoided. Obviously, this may not be an easy task, especially for a music director.
(2) multiple infringements
Section 504(c)(1) of the Copyright Act specifies that a copyright owner may elect to recover statutory damages “for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually . … ” The House Report to the Copyright Act of 1976 clarifies that “a single infringer of a single work is liable for a single amount between [$750] and [$30,000], no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series.” These statements indicate that a copyright owner may recover only a single award of statutory damages despite repeated infringements of a particular copyrighted work by the same infringer. In other words, the fact that the music director made 200 chorus booklets containing the lyrics of a copyrighted song does not result in 200 awards of statutory damages, but rather only one award. But what about the fact that the chorus booklet contained 50 copyrighted songs?
What would the statutory damages be in this case, assuming that a court awards the minimum amount of $750? There are four possibilities: (1) a single award of $750 that must be apportioned among the 50 copyright owners whose works are represented in the chorus booklet; (2) $37,500 ($750 per violation times 50 copyrighted works); (3) $150,000 ($750 per booklet times 200 unauthorized copies); or (4) $7,500,000 ($750 per copyrighted song times 200 unauthorized copies). The second option ($37,500) appears to be the most consistent with the plain meaning of section 504(c)(1) of the Copyright Act. As noted before, the House Report to the Copyright Act of 1976 specifies that “a single infringer of a single work is liable for a single amount between [$750] and [$30,000], no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series.” This language indicates that a copyright owner may recover only a single award of statutory damages despite repeated infringements of a particular copyrighted work by the same infringer. Therefore, though the church made 200 unauthorized copies of each copyrighted song, the copyright owners presumably cannot recover more than a single award of statutory damages for each copyrighted song.
(3) church liability
Is the church liable for the music director’s acts of copyright infringement? Possibly, under two theories. First, 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.” Second, under the theory of “vicarious copyright liability” a church may be liable for an employee’s acts of copyright infringement that are committed within the scope of his or her employment.
(4) a recent case
A denominational magazine contained a seven-page article that included an excerpt from a copyrighted 230-page book. The copyright owner sued the denomination and several of its agencies for copyright infringement, and demanded astronomical statutory damages against each defendant based on the number of magazines that were distributed containing the offending article. A federal district court ruled that “once defendants are deemed to have acted jointly and severally a plaintiff’s recovery is limited to a single statutory damages award regardless of the number of defendants who took part in the infringement.” Further, the court concluded that “each work infringed may form the basis of only one award, regardless of the number of separate infringements of that work.” As a result, the court ruled that the copyright owner was entitled to only one award of statutory damages since “all infringing acts pertain to a single piece of work, i.e., plaintiff’s copyrighted book.” Robles Aponte v. Seventh Day Adventist Church Interamerican Division, 443 FSupp.2d 2d 228 (D. P. R. 2006).
