Copyright Law 101

Do you sing on Sunday, host pageants and sell audio and video tapes at your church? Of course you do! But that doesn't mean you're doing it legally.

Instead of assuming you're A-OK, protect yourself -- and your church -- by brushing up on the ins and outs of copyright law with Atty. David C. Gibbs Jr., founder and president of the non-profit Christian Law Association (www.christianlaw.org).

Q. What duplication restrictions are placed on copyright-protected works?

A. Generally, the copyright owner owns the exclusive right to publicly copy, distribute, perform or display a copyrighted work; to prepare derivative works based upon the copyrighted work; or to delegate these privileges to others. Therefore, any use of a copyrighted work requires permission BEFORE any duplication can be made.

Q. Is there a "religious services exemption" that exempts churches from copyright restrictions?

A. Yes, but it only applies if all four of the following conditions are met:

(1) There is a performance of a non-dramatized literary work, such as a poem; a non-dramatized musical work, such as a song; or a musical drama, such as a cantata; (Note: purely dramatic works remain subject to copyright restrictions without exemptions.)

(2) The work is of a religious nature;

(3) The performance occurs during a religious service; and

(4) The performance is at a place of worship or other religious assembly.

Q. May a church tape Sunday services for distribution without obtaining copyright permission, if the tape includes both the sermon and a choir performance?

A. No. The religious services exemption does not allow music performances to be tape recorded for distribution even if they are religious works that are used during a religious service at a place of worship. Unless permission or a license is obtained, recordings of Sunday services for distribution should only include the sermon, and not a performance of copyrighted music.

Q. May a church school raise money by selling tapes of the school Christmas play without permission of the copyright owner?

A. No. A Christian school performance of a Christmas play is not exempt unless the play is performed during a religious service. Even if the play is performed during a religious service, the play may not be taped without permission or a license.

Q. May a choir director make copies of music for the choir if the copies are destroyed after the song is performed?

A. No. The religious services exemption applies exclusively to public performances and does not extend to the copying of music. Choir music may only be duplicated with a copyright license or permission from the copyright owner.

Q. May a church display copyrighted song lyrics on an overhead projector?

A. No. A church may not make a transparency of lyrics to display for the congregation unless the copyrighted work is intended for projection. Hymnals reproduced on transparencies are available in many Christian bookstores but should not be used without the appropriate license.

Q. May an accompanist use a piece of copyrighted music while the vocalist uses a typed sheet of lyrics?

A. No. Both people must use their own individual copy of the copyrighted music, or the church must have a license or permission from the copyright owner to duplicate either the lyrics or tune of copyrighted music.

Q. If a publication does not have a copyright symbol on it, can it be copied without violating copyright law?

A. No. Since 1989, a work is copyright protected even if there is no copyright notice on the work.

Q. How do you know if a work is copyright protected?

A. When a copyright notice is not on the work, the records of the Copyright Office in the Library of Congress, Washington, D.C. may be inspected and searched by the public to obtain copyright information. Copyright Office records are available for online inspection and search at the hourly rate prescribed by Congress. Records from Jan. 1, 1978, to the present may be searched online at www.copyright.gov.

Q. Who owns the copyright in a work?

A. In most cases, the author or publisher owns the copyright to a work. But in a work "made for hire," the person for whom the work is prepared owns the copyright, unless there has been a written agreement to the contrary signed by both parties.

Q. How do you know if the copyright is a work made for hire?

A. The statutory definition of a work made for hire is complex and not easily applied. But in general, a work is made for hire if an employee prepared it as part of his employment duties. An independent contractor may also produce work made for hire if the parties agree to the arrangement in writing.

Q. May a church distribute a pastor's sermon tapes after he leaves?

A. The answer to this question depends on who owns the copyright to the sermons. If the pastor owns the copyright as the author of the sermons, the church needs his permission. If the church owns the copyright because it commissioned the sermons as a work made for hire, the church does not need the pastor's permission. To avoid any disputes about copyright ownership, the pastor and church should establish copyright ownership of the pastor's sermons and other creative works by a written agreement at the beginning of their relationship.

Q. How long does copyright protection last?

A. For works created after Jan. 1, 1978, a copyright lasts for the life of the author plus 70 years. The copyright of a work created by two or more authors lasts for 70 years after the last surviving author's death. For works created before Jan. 1, 1978, the copyright lasts for 28 years and may be renewed for an additional 67 years, allowing the copyright to last up to a total of 95 years.

Q. May a work be copied if the author is unknown?

A. Anonymous works should not be copied unless the copyright protection has expired. For works created after Jan. 1, 1978, copyrights for anonymous and pseudonymous works, and for works made for hire last for 120 years after the work's creation or 95 years after its publication, whichever expires first.

Q. May a church library make copies of copyrighted CDs and allow members to check out the copies?

A. No. A library may make a single copy of copyrighted materials only for the limited purpose of backup or security, but not for any other purpose.

Q. May a videotape be shown to the youth group?

A. A church may lawfully show a video if one of the following three conditions is met:

1. The video comes with Public Performance Rights;

2. The church has obtained prior written permission from the copyright owner; or

3. The church has obtained a video license.

Q. Are there services that help churches obtain copyright permissions and/or licenses?

A. Yes, please contact one of the following:

Christian Copyright Licensing International (CCLI)

17201 NE Sacramento St.

Portland, OR 97230

503.257.2230 and 800.234.2446

www.ccli.com

Christian Video Licensing International (CVLI) / The Motion Picture Licensing Corp. (MPLC)

www.cvli.org and www.mplc.com

5455 Centinela Ave.

Los Angeles, CA 90066-6970

310.822.8855 and 888.771.2854

The Copyright Clearance Center (CCC)

222 Rosewood Dr.

Danvers, MA 01923

978.750.8400

www.copyright.com/

EMI Christian Music Publishing (formerly Sparrow Corp.)

P.O. Box 5085

Brentwood, TN 37024-5085

615.371.6800

Q. May copyrighted material ever be used without permission of the copyright owner?

A. Yes. The "fair use" of copyrighted materials is permitted for criticism, comment, news reporting, teaching, scholarship or research without permission of the copyright owner.

Q. Does noncommercial use of copyrighted material constitute a fair use?

A. No. The mere fact that a use is educational or "not for profit" does not make it a fair use. However, the noncommercial use of copyrighted material is a factor that weighs in favor of its fair use.

Q. What type of copyrighted work is more likely to be considered a fair use?

A. Copyright law recognizes a greater need to disseminate factual works than works of fiction or fantasy. Therefore, a fair use of fiction is more difficult to defend than a fair use of factual material.

Q. How much of a copyrighted work may be copied for a fair use?

A. Fair use is not easily defined or explained. However, that portion of the copyrighted material used should not be either substantial or especially important. In such cases, a legal defense of fair use would be less likely to succeed.

Q. Does fair use still apply if copying the work causes the copyright owner a loss of sales?

A. No. The concept of "Why buy something if you can get it for free?" is relevant in a fair use legal analysis. Federal law does not provide for fair use if the potential market or value of the copyrighted work is adversely affected by the copying. For example, there is no fair use if the copying of a work causes an actual loss of sales or would cause a future loss of sales if such copying should become widespread. This factor is especially important in cases of noncommercial fair use.

Q. When may entire works be copied without permission of the author?

A. Works that are in the public domain may be copied without the author's permission. Works in the public domain are those where the copyright has expired or where the work was never copyright protected.

Q. What are the civil penalties for copying work that is copyright protected?

A. A person who violates copyright law may be required to pay the copyright owner actual damages and profits lost as a result of the violation, statutory damages up to $30,000, and costs and attorneys fees for each infringement of copyrighted work. Damages may be increased to $150,000 per work if a court finds that the copyright violation was willful.

Q. Are there criminal penalties for making copies of a work that is copyright protected?

A. Yes. Fines in the amount of $250,000 and prison terms for as long as 10 years may be imposed on any person who (1) infringes on a copyright for purposes of commercial advantage or private financial gain, or (2) reproduces or distributes works on a large scale. The amount of the fine and term of imprisonment depend on the retail value of the copyrighted work and whether the person is a first time or repeat offender. For felony offenses, an organization, such as a church, may be fined up to $500,000.

Copyright laws are complicated and sometimes difficult to apply. If your ministry has a specific question about copyright law, please call the Christian Law Association at 727.399.8300, or visit www.ChristianLaw.org, for an evaluation of your particular situation.