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.

This Good Way

I love the Word of God because, when the Holy Ghost helps us see the depth of God’s love and His plan of salvation – of the destiny that God has planned for His children – it is more exciting than any science fiction book or movie ever produced.

Think of the deepness of Jesus’ words as recorded by Matthew: “…Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.” Matthew 25:40. Christ so identifies Himself with those He has chosen that He calls them “brethren” in this Scripture. Not servants. Not even sons (or daughters). Brethren. Co-equals. Can we comprehend such a thing? Christ saw them in an already glorified state when He made this statement. Right now we are servants, but what we are to become – is so glorious that Jesus could relate to them as “brethren.”

Christ created the entire universe – not just this earth. Many Scriptures verify this – but the one I always like to quote because of its clarity, is Hebrews 1:1-2: “God, who at sundry times and in divers manners spake in time past unto the fathers by the prophets, Hath in these last days spoken unto us by his Son, whom he hath appointed heir of all things, by whom also he made the worlds.” It couldn’t be more clear than that.

Christ was clothed with the glory of His Father, even before His first advent and ascension back into Heaven. Philippians 2:6 says, “Who, being in the form of God, thought it not robbery to be equal with God.” The center column reference (Oxford Bible) says He “counted not equality with God a thing to be grasped at.” The author of the book of Hebrews says of Christ before His first advent – He was in “the brightness of his glory, and the express image of his person, and upholding all things by the word of his power.” Hebrews 1:3. The prophet Isaiah said, “I saw also the Lord sitting upon a throne, high and lifted up, and his train filled the temple.” Isaiah 6:1. The first chapter of Hebrews shows that Christ was made much higher than the angels – He was the Son of God. The angels were created by Him. How can the human mind with its severe limitations because of the Fall comprehend that glory. I try, but I know I cannot come anywhere close.

Then try to comprehend this Great Being coming to this earth in the form of a man. Not a full-grown man – but a baby dependent upon its mother for its very life – to redeem us from sin. He took “not on him the nature of angels; but he took on him the seed of Abraham. Wherefore in all things it behoved him to be made like unto his brethren, that he might be a merciful and faithful high priest in things pertaining to God, to make reconciliation for the sins of the people.” Hebrews 2:16-17. He took upon Himself the whole experience of humanity. The birth, the suffering, and the death. That is why any individual, regardless of age, can relate to Him as their Advocate. Also, there are those words again – “like unto his brethren.” Amazing!

What does that really mean? It means, among many other things, that being “brethren” puts us in a standing with Him to where we will inherit what He inherits. The apostle Paul said, “if children, then heirs ; heirs of God, and joint-heirs with Christ; if so be that we suffer with him, that we may be also glorified together.” Romans 8:17.

What has Christ inherited, and what is He yet to inherit? Hebrews 1:2 states that God has appointed Christ “heir of all things.” One of those things is – He has inherited immortality – life within himself. Paul, speaking of Christ, said in II Timothy 1:10, “…who hath abolished death, and hath brought life and  immortality  to light through the gospel.” He could not have had immortality before His first advent – He attained this after He rose from the dead and ascended back to His Father.

There are 144,000 chosen individuals that will inherit immortality, being joint-heirs with Christ. “And I looked, and, lo, a Lamb stood on the mount Sion, and with him an hundred forty and four thousand, having his Father’s name written in their foreheads.” Revelation 14:1. Revelation 17:14 says “they that are with him are called, and chosen, and faithful.” Paul speaks of these who will inherit immortality: “For this corruptible must put on incorruption, and this mortal must put on immortality. So when this corruptible shall have put on incorruption, and this mortal shall have put on immortality, then shall be brought to pass the saying that is written, Death is swallowed up in victory.” I Corinthians 15:53-54.

Another thing that He will inherit is the throne of His father David. “The Lord hath sworn in truth unto David; he will not turn from it; Of the fruit of thy body will I set upon thy throne.” Psalm 132:11. Verse 13: “For the Lord hath chosen Zion; he hath desired it for his habitation.” The angel told Mary, “He shall be great, and shall be called the Son of the Highest: and the Lord God shall give unto him the throne of his father David: And he shall reign over the house of Jacob for ever; and of his kingdom there shall be no end.” This didn’t happen at the first advent – but it will happen at the second advent when Christ returns, along with His Bride, to Jerusalem, the City of David. Where was David’s throne? In Jerusalem! Not out in space somewhere!

The second phase of the first resurrection adds many souls to the kingdom with angelic bodies that will reign with Him during the next 1000 years. “And I saw thrones, and they sat upon them, and judgment was given unto them: and I saw the souls of them that were beheaded for the witness of Jesus, and for the word of God, and which had not worshipped the beast, neither his image, neither had received his mark upon their foreheads, or in their hands; and they lived and reigned with Christ a thousand years. But the rest of the dead lived not again until the thousand years were finished. This is the first resurrection. Blessed and holy is he that hath part in the first resurrection: on such the second death hath no power, but they shall be priests of God and of Christ, and shall reign with him a thousand years.” Revelation 20:4-6. Jesus speaks of this phase of the resurrection in Matthew 22:30: “For in the resurrection they neither marry, nor are given in marriage, but are as the angels of God in heaven.”

Satan will be bound for this 1000-year period of time – Revelation 20:1-3 – and the age as we now know it will be changed as a vesture, Hebrews 1:12, into an age we cannot come close to imagining with our feeble intellect. Revelation 21:1 says, “And I saw a new heaven and a new earth: for the first heaven and the first earth were passed away; and there was no more sea.” Isaiah prophesies of this millennial age: “And the cow and the bear shall feed; their young ones shall lie down together: and the lion shall eat straw like the ox. And the sucking child shall play on the hole of the asp, and the weaned child shall put his hand on the cockatrice’ den. They shall not hurt nor destroy in all my holy mountain: for the earth shall be full of the knowledge of the Lord, as the waters cover the sea.” Isaiah 11:7-9. Even those that have come through the plagues spoken of in the book of Revelation, the judgments of the tribulatory period, and are still clothed with a human body, will enjoy an entirely new existence – such as they never dreamed about. “They shall not build, and another inhabit; they shall not plant, and another eat: for as the days of a tree are the days of my people, and mine elect shall long enjoy the work of their hands. They shall not labour in vain, nor bring forth for trouble; for they are the seed of the blessed of the Lord, and their offspring with them. And it shall come to pass, that before they call, I will answer; and while they are yet speaking, I will hear.” Isaiah 65:22-23.

So you can see that whatever place someone has in the Kingdom – it will be perpetual joy!  Selah!  Think about that!

My words are so very inadequate – so weak – so feeble – in trying to describe what Christ has in store for His elect. The apostle Paul, quoting from Isaiah, said, “Eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which God hath prepared for them that love him.” I Corinthians 2:9. Bro. Lloyd Goodwin was a great visionary, and painted wonderful word-pictures in his many messages and books, but it still could not convey to us the glory of the reward that awaits us. Bro. Glenn Goodwin has done an excellent job in his efforts to express it to us, but it is still insufficient. How is it possible for finiteness to explain infinity?  What did the apostle Paul know that we cannot comprehend? He was caught up to Paradise and heard “unspeakable words, which it is not lawful for a man to utter.” II Corinthians 12:4. He was stoned and left for dead by those of Antioch and Iconium, so he went to Derbe, but went right back to Antioch and Iconium. Acts 14:19-21. What did Paul know that we do not know? He said “I reckon…”  He said, “I have given this a lot of thought.”  He said, “I  reckon  that the sufferings of this present time are not worthy to be compared with the glory which shall be revealed in us.”  Romans 8:18.

Someone penned the song, Amazing Grace. Someone else wrote and produced a movie called, The Greatest Story Ever Told. They could not even begin to explain it! The apostle Paul said, “I count all things but loss for the excellency of the knowledge of Christ Jesus my Lord: for whom I have suffered the loss of all things, and do count them but dung, that I may win Christ, And be found in him, not having mine own righteousness, which is of the law, but that which is through the faith of Christ, the righteousness which is of God by faith: That I may know him, and the power of his resurrection, and the fellowship of his sufferings, being made conformable unto his death; If by any means I might attain unto the resurrection of the dead.” Think about that! Selah!

Again the apostle Paul said, “Looking for that blessed hope, and the glorious appearing of the great God and our Saviour Jesus Christ.” Titus 2:13. Again he said, “unto them that look for him shall he appear the second time without sin unto salvation.” Hebrews 9:28. The reward is great!

And that too, my friend, is part of this good way.

(For a more comprehensive explanation of the first resurrection, see Brother Lloyd Goodwin’s books The First Resurrection and/or Prophecy Concerning the Second Advent and/or Bro. Glenn Goodwin’s books, End Time Events and/or The Feasts of Redemption.)