Churches can commit copyright infringement when creating and maintaining their own websites or social networking sites. Here are some examples:
The use of someone else's image on your website without permission is a potential copyright infringement. Some "clip art" providers allow the use of their work on a website for a fee. Before using clip art, be sure to carefully read the terms of the license.
The use of copyrighted text on a website without permission may infringe upon the copyright owner's exclusive rights of reproduction and public distribution unless a defense, such as fair use, is available, or the use is authorized by consent of the copyright owner.
Web pages can be designed to hyperlink to other web pages on the same site or to web pages maintained by different sites. For example, a web page maintained by a church may provide a hyperlink to its parent denomination's site, or to other websites of interest to its members. Links bear a relationship to the information superhighway comparable to the relationship that roadway signs bear to roads. Like roadway signs, they point out the direction. Unlike roadway signs, they take one almost instantaneously to the desired destination with the mere click of an electronic mouse.
A few courts have addressed the question of whether the use of links on a website infringes upon the copyright of the linked site. While not entirely free from doubt, the answer appears to be no. To illustrate, one court observed:
"Links are what unify the World Wide Web into a single body of knowledge, and what makes the Web unique. They are the mainstay of the Internet and indispensable to its convenient access to the vast world of information. They often are used in ways that do a great deal to promote the free exchange of ideas and information that is a central value of our nation. Anything that would impose strict liability on a website operator for the entire contents of any website to which the operator linked therefore would raise grave constitutional concerns, as website operators would be inhibited from linking for fear of exposure to liability. And it is equally clear that exposing those who use links to liability … might chill their use, as some website operators … may be more inclined to remove the allegedly offending link rather than test the issue in court." Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000). See also Perfect 10 0v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006).
Example. A federal court concluded: "Hyperlinking does not itself involve a violation of the Copyright Act since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently …. Indeed, hyperlinks are essential to the operation of the Internet for a host of legitimate purposes. The host of a website who establishes a link to another site that may be interesting to the host's website visitors does not undertake any general duty to police whether the linked sites contain any material infringing the copyrights of others." Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 1887522 (C.D. Cal. 2000).
However, some courts have cautioned that not all acts of linking are legally permissible. To illustrate, some courts have ruled that linking to sites that contain material constituting a copyright infringement will make the linking site guilty of infringement. As one court observed: "It is easy to allow room for liability for defendants who deliberately encourage use of infringing websites by establishing links to those sites." Batesville Services, Inc. v. Funeral Depot, Inc., 2004 WL 2750253 (S.D. Ind. 2004).
Also, the legal status of the common practice of "deep linking" (linking to an interior page on another website) has not yet been adequately addressed by the courts, so websites should avoid deep linking unless they obtain permission from the other website owner.
Example. A federal court ordered a religious organization to remove a link on its website to three other websites containing unauthorized copies of a religious book. Intellectual Reserve, Inc. v. Utah Lighthouse Ministries, Inc., 75 F.Supp.2d 1290 (D. Utah 1999).
There are other legal concerns associated with the establishment and maintenance of church websites having nothing to do with copyright law. These concerns, which are beyond the scope of this book, include the selection and protection of domain names, defamation, trademark infringement, and the propriety of using images of minors and adults. Most of these issues are addressed in Richard Hammar's book series, Pastor, Church & Law (4th edition, 2008).
Many church websites and social media sites incorporate YouTube videos. If the videos are created by the church and contain no copyrighted material that is being used without authorization from the copyright owner, this generally is permissible.
However, many churches display YouTube videos from other sources. There are two ways that this is done: linking and embedding. As noted above, linking generally is not copyright infringement, except perhaps if the linking site knows, or has reason to believe, that the linked site contains infringing material.
Embedding is similar to linking in the sense that a YouTube video is displayed. With linking, the video is displayed directly on YouTube rather than on your website, so it is difficult to say that a "copy" is being made. Embedding is different in the sense that the video is displayed directly on your website. Does this difference expose a church to a greater risk of copyright infringement? That is a question that has yet to be resolved by the courts. In the meantime, there are steps that churches can take to reduce the risk of copyright infringement when embedding YouTube videos on their websites. These include, but are not limited to, the following:
- Do not embed on your website a YouTube video that likely infringes on the copyright of others. For example, do not embed a YouTube video containing lengthy excerpts of a movie or television program.
- Some YouTube video providers allow embedding under certain conditions. Use these videos whenever possible.
- Ask the YouTube video provider for permission to embed the video on your website.
- Go to the original source of the YouTube video you wish to use, and see if any "terms and conditions" are posted that may authorize embedding the video on other websites.
- Link, don't embed. Linking to a YouTube video is less likely to cause copyright problems.
- Seek the advice of an intellectual property attorney