Basic Copyright Law

Every pastor, song leader and musician in every church needs to know something about copyright law. There is a way to “copy right” and a way we can “copy wrong.” There are potential penalties, however, if we copy wrong. The invention of the portable copy machine has made the potential for copyright violation much more widespread. If you find a good song just buy one copy of the music, take it to the copy machine, and duplicate 30 copies for the band or choir – right? Wrong! By law, you have to purchase 30 copies of the music, or get permission from the copyright owner.

The Basics

Article I, Section 8 of the United States Constitution secures to Congress the right “to promote the progress of…the useful arts, by securing for a limited time to authors…the exclusive right to their respective writings.” Pursuant to this authority, Congress has passed Copyright laws through the years, protecting literary, musical and dramatic works.

Under the Copyright Act of 1976, as amended, authors and composers receive initial copyright protection for their works as they create an initial work of authorship that is “fixed” in a “tangible medium of expression.” 17 U.S.C. § 102(a). The work, then, has to be “original” and tangibly fixed, such as on a recording, reduced to writing, etc. It is said that Handel composed the entire “Messiah” in his head before he wrote a single note of it on paper; today, there would be no copyright until it was written down. There is no copyright if it is performed, unless it is written down, or the performance is somehow recorded.

The duration of a copyright varies: in most cases, for works created before 1977, the duration is 95 years. Actually, the 1909 law established copyright protection for 28 years, subject to renewal for 28 more. But Congress has extended all copyrights that had not expired to 95 years. For works created after 1977, the duration is the life of the author (or surviving author), plus 70 years. (For anonymous works and “works made for hire” after 1977, the term is 95 years from the date of first publication or 120 years from creation, whichever expires first.)

“Works made for hire” means works created on the employer’s time, premises, using employer’s equipment, etc. It has significance if you are a church employee. If you created it on the church’s time, using their equipment, then the copyright is the church’s and not yours. If the church gives it to you, it might be considered “private inurnment.” That could endanger the church’s tax exempt status.
After a copyright expires, or if the work is never copyrighted, it is in the public domain.

Registration

Authors can register their creations with the federal Copyright Office, by depositing two copies of their work and paying a small fee ($45 for paper submissions; $35 for electronic submissions) within three months after creation. It is an inexpensive and simple procedure that clearly establishes who owns the copyright. Registration is not required, but has several benefits – including availability of “statutory damages” of between $750 and $30,000 per violation, instead of having to prove “actual damages” if someone infringes on your copyright. 17 U.S.C. § 504(c). That section also allows damages up to $150,000 for “willful” infringements.

Another advantage of registration is that you don’t just get statutory damages; the court can also award you your attorneys’ fees and court costs to protect your copyright. Typically, in the American system of justice, each party pays for their own attorney. But an award of attorney fees means the infringer pays his own attorney and the fees for the attorneys of the copyright owner. Sometimes the attorney fees exceed the damages awarded.

The copyright exists whether it is registered or not. But in addition to the statutory damages provision, registration means no one can claim they “in-nocently” infringed on the copyright. Registration puts the public on notice that a work has been copyrighted.

Notice

The fact that a work is copyrighted is often noted by a mark: ©. This, too, is not required, at least for works published on or after March 1, 1989, but it puts the public on notice that a work is protected.

Prior to March 1, 1989, no copyright was secured unless the work contained a notice with the symbol, or the word “copyright,” the year of publication, and the name of the copyright owner. But on that date, the United States became a party to the “Berne Convention” – an agreement 80 nations had entered into 100 years earlier, regarding international copyrights. The US waited so long because Congress was reluctant to drop the notice provision – allowing copyrights to exist without notice.

So it is important to know that no notice is required to establish a copyright. If you see something without a copyright notice, which was created after 1989, it still may be copyrighted.

Five Exclusive Rights

Federal law, 17 U.S.C. § 106, gives the copyright owner exclusive rights (subject to certain limitations):

1. To reproduce the copyrighted work in copies or electronic format. The right of REPRODUCTION.
2. To prepare derivative works (such as a translation or revised edition) – or an arrangement of a musical score. The right of ADAPTATION.
3. To distribute copies by sale, rental, etc. The right of PUBLICATION.
4. To perform copyrighted works publicly. The right of PERFORMANCE.
5. To display the copyrighted works publicly. The right to DISPLAY.

Churches can get in trouble for violation of any of these exclusive rights: includ-ing duplication of copyrighted written music, duplication of performances of copyrighted music, etc. Intent is not relevant. “Innocent” infringements are still violations, subject to significant fines. Yet, the fines are typically reduced from $750 per violation to $200 for innocent infringements.

Copying words on an overhead projector, or through a computer projection, constitutes copyright infringement. This would violate the exclusive right of the owner to reproduction. So does selling or distributing tapes or CDs of copyrighted music. This would infringe on rights of reproduction, publication and performance. Photocopying copies of music for the church band or choir to use is an infringement.

Please note that derivative works, such as translations into other languages, are infringements of the right of adaptation. So are changes in lyrics (to make the song “doctrinally correct,”) or changes in rhythm or your own arrangements of the song.

Infringements are serious. ASCAP, BMI and SESAC (publishing associations) will bring lawsuits against those who infringe on copyrights – as can individual copyright owners. The damages, as well as attorney costs for your church and for the copyright owner, can be substantial.

Defenses and Exceptions

There are several defenses that can be relied upon to avoid liability for copyright infringement. Some of the more important are:

1. The “Fair Use” Doctrine. Copyrighted materials can be copied or used for purposes such as criticism, comment, news reporting, teaching, and such. Basically, there must be no commercial motivation (such as sale of copyrighted material). Copies of music, overhead projections and chorus books with lyrics will not be considered “fair use.” In fact, fair use would be rarely available to a church – except perhaps quoting a couple of sentences of a copyrighted work in the course of a sermon, or in a church newsletter or bulletin. Copying all of a song or poem in a bulletin, however, is an infringement.
2. Classroom Copying in Not-for-Profit Educational Institutions. This exception is limited to photocopies of portions of copyrighted works, not routinely done, and for which a student does not pay any fee.
3. The Religious Services Exemption. Section 110(3) is very important. It states:
   • the following are not infringements of copyrights . . . performance of a nondramatic musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.
4. Note that this exception does not apply to “copying” but to “performance” or “display.” This gives church bands and choirs the right to play copyrighted music in church services – but perhaps not in a concert for which admission is charged. (But see #5 below.) And note that it does not cover the sale of tapes, CDs or DVDs on which such performances are recorded. (Interestingly, the use of an old “Opaque Projector” is legal – since it is a display of the work, rather than a copying of it.)
5. 4. Permission from the Author. Of course, there is no violation if the copyright owner grants permission, either directly, or through some sort of licensing procedure. Christian Copyright Licensing Inc. is a well-known organization which sells licenses to churches. (See next page.)
6. 5. The Non-Profit Performance Exception. The performance of non-dramatic literary or musical works, without any purpose of direct or indirect commercial advantage and without payment to the performers is NOT an infringement if (1) no admission fee is charged, or (2) a fee is charged and any excess revenue over expenses is used solely for educational, religious or charitable purposes.

Legal actions are always in Federal District Court – not in the state courts.

A number of courts have held that “paraphrasing” is a copyright infringement. One courts said a plagiarist cannot escape liability by immaterial variations.” Nichols v. Universal Pictures Co., 45 F.2d 119 (2nd Cir. 1930).

Courts have found copyright infringements when the copying was limited to:

• two identical bars of a musical work
• four notes and two words, which comprised the “heart of the composition”
• three sentences (that were used for advertising purposes)
• three sentences
• eight sentences
• less than 1% of the copyrighted work
• the phrase “put on a happy face”
• Substantial similarities in the songs He’s so fine – by the Chiffons and My sweet Lord by ex-Beatle George Harrison.
• Substantial similarities between Andrew Lloyd Webber’s Phantom Song and Ray Repp’s (a religious songwriter) Till You.

The following cases illustrate the significance of the risk for churches:

Johns & Johns Publishing Co. v. Paull-Pioneer Music Corp., 102 F.2d 282 (8th Cir. 1939). In this case, a publisher reproduced the lyrics from the chorus of a couple of copyrighted, famous songs in a pamphlet. The publisher argued it was “fair use” because they only put in the lyrics and not the music notes, etc., and because they only put in the chorus and not the verses. The court rejected the claim of fair use and held that the chorus was a substantial part of the work and it is frequently the very part of a song that makes it popular and valuable.

Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962). A church choir director made a choral arrangement of a copyrighted hymn. (He added a four measure introduction, and then made several copies on the church duplicating machine with his name on them as arranger.) Both the director and the church were held jointly liable.

Meadowgreen Music Co. v. Voice in the Wilderness Broadcasting, Inc., 789 F.  Supp. 823 (E.D. Tex. 1992). A religious radio station broadcast copyrighted songs on the radio. The station owner defended his actions by saying, “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 the argument and fined the station statutory damages of $3500 each for 15 proven infringements – a total of $52,500, plus the attorneys’ fees and court costs for the copyright owner.

Hotaling v. Church of Jesus Christ of Latter Day Saints, 118 F.3d 199 (4th Cir. 1997). The Mormon Church infringed on copyright when it bought one copy of a genealogical table, and made copies for its branch libraries.

F.E.L. Publications v. National Conference of Catholic Bishops, 466 F. Supp. 1034 (N.D. Ill. 1978), aff’d, 754 F. 2d 216 (7th Cir. 1985). A publisher of religious music sued the archdiocese of Chicago for producing “homemade or pirated hymnals” – 80,000 of them. The potential for statutory damages ($750 times 80,000 up to $30,000 times 80,000) is staggering.

Proverbs 22:3 says, “A prudent man foreseeth the evil, and hideth himself: but the simple pass on, and are punished.” It must be important, because it is in the book twice; see Proverbs 27:12. Prudence advises us to understand the dangers of copyright infringement – to foresee the evil – and to avoid the risks as much as possible – to hide ourselves from the potential of lawsuits and monetary damages.