When is the last time your church copied something from the internet and used it in a media project? For most churches, the answer might be, “last week.” But perhaps more importantly, when is the last time your church investigated whether copying something from the internet and using it in a media project was actually legal? Chances are your response would be, “never.”
The use of intellectual property by churches has dramatically increased in the past decade. While this new era has brought with it the ability to communicate in ways never before possible, it has also introduced an onslaught of legal concerns. The use of intellectual property by church media departments has greatly increased the church’s risk of liability for copyright and trademark infringement, exposing it to a substantial threat of monetary damages and other forms of liability. In short, churches can no longer risk being ignorant of intellectual property laws.
To provide some background to the problem, a recent survey commissioned by the Gospel Music Association determined that there is virtually no difference between Christians and non-Christians when it comes to copyright infringement. It appears that the thoughts and attitudes towards use of copyrights boil down to this: if it can be found on the Internet, it must be free. Of course, the survey is not sufficiently comprehensive to determine the scope of the church’s lack of knowledge when it comes to copyright use, but it does shed light on two pervasive “thoughts” in the church: (1) access to protected materials constitutes permission to use those materials; and (2) ignorance of the law envisions protection by the law. While it should be obvious, the church has much to lose by remaining unaware, particularly with respect to its credibility with non-believers. Romans 13:1-2 states “Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves” (NIV). If the church is to lead by example, that example should be consistent with the law.
In any event, the church needs tools to understand what it may do. The purpose of this article is to survey the options available to a church. Note, however that this article embodies general information and does not constitute legal advice. You should consult an attorney for your particular circumstances.
Obtaining a Preliminary Understanding
In order to understand how a church may interact with copyrighted materials, you should at least have a basic appreciation of what a copyright is. Music, books, films, pictures, art – these are all the sort of materials that are protected by copyright law. In general, copyright law protects original works of authorship fixed in a tangible medium of expression. That means, that unless a church is absolutely certain the material it wants to use in its program is in the public domain, it should assume that the material is protected by copyright law. But what does it mean to be protected by copyright law? The quick answer is, a church may not display, perform, reproduce, distribute or make derivative works of copyrighted materials without permission – these are the exclusive rights of the owner. But the more definitive answer is only found in a thorough case-by-case analysis. This does not mean a church must always obtain permission prior to using copyrighted materials in its services. Rather, the church should have a framework to understand when permission is necessary and when it is not.
Public Domain
The drafters of our constitution envisioned copyright protection lasting for a limited time to enable the public to use – without permission – works that were previously protected by copyright. Songs, books, films and other formerly copyrighted materials that have entered the public domain are free for anyone and everyone to use. There are, in fact, scores of hymns, literature and other materials readily available to the church to incorporate into media programs. These materials may be used without permission and without payment to anyone. Nevertheless, since determining whether a work is in the public domain can be an arduous task, a church should ensure that it has researched the issue thoroughly prior to using materials it believes are in the public domain. Also keep in mind that certain renditions of a work may be partially protected by copyright law as derivative works (i.e., the underlying work is in the public domain, however, one or more elements have been added to the original and those elements may be protected).
Specific Exemptions to Copyright Law
The most literally direct aspect of copyright law applicable to the church is found in section 110 of the Copyright Act, which states that the “performance of a non-dramatic literary or musical work or of a dramatico- musical [sic] work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly,” is not an infringement of copyright. This specific exemption enables churches to, for example, perform worship music during services without obtaining permission. As you can see, however, this exemption may not permit a church to play a pre-recorded CD, since that would be a performance of a sound recording (an act not specifically delineated in the above section), or perform worship music (live or otherwise) prior to its service. Moreover, there is virtually no case law interpreting this particular section of the Copyright Act, which makes it even more difficult for a church to ascertain what it may do beyond the specific language set forth in that section. Again, determining whether a specific use of copyrighted material will be exempt under Section 110 requires a thorough legal analysis on a case-by-case basis.
The Fair Use Doctrine
The most notable, and likely most misunderstood, option for a church to use copyrighted materials is the Fair Use doctrine. The Fair Use doctrine was developed to enable the public to use – without first obtaining permission – of copyrighted materials for the purpose of criticism, comment, news reporting, teaching, scholarship or research. Prior to determining whether your church’s intended use of copyrighted materials will be protected by the Fair Use doctrine, you need to answer two “threshold” questions: (1) is the material subject to copyright protection; and (2) were the materials lawfully obtained.
Before you dismiss these inquiries out of hand, understand that Fair Use may not protect the church’s use of copyrighted materials obtained without permission from the internet – even though the church’s use clearly otherwise falls under Fair Use. Before you use any materials in your service, you should always ask how the materials were obtained.
Many churches believe that Fair Use permits the virtually unlimited use of copyrighted materials, so long as no profit is made. This is contrary to law and logic. As mentioned above, the Fair Use doctrine was created for a specific purpose, i.e., comment, criticism, etc. Moreover, the courts have established a four-part test to be applied each and every time a person seeks to invoke the Fair Use doctrine: (1) the purpose of the use (including whether the use is commercial); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the market of the original. As you can see, whether or not a profit is made is only one component of the test. In fact, many courts have indicated that the commerciality of the use is a “minimal” aspect of the test. Thus, in applying the Fair Use test, you must evaluate each prong, ultimately perceiving a scale to be balanced either in favor of Fair Use or against it.
By way of example, many churches copy the words to songs that will be sung during service, and place these words in bulletins to be handed out to congregants. While it is clear that no money will be made from this activity, it is most certainly unlawful. Since the church will forego purchasing the music for each congregant, instead relying on copies made and handed out, the market for the original is effectively eliminated. Moreover, entire songs are copied and the purpose underlying a church’s decision to copy songs into bulletins is most likely not for comment, criticism or otherwise. Ultimately, this type of use is unlawful. As you can see from this example (which I emphasize as being common in the church), Fair Use will not – and should not - protect a church from this type of activity.
Consent of the Owner
Perhaps the most powerful indicator that a church’s use of copyrighted materials is permitted is the consent of the owner. The nature and scope of the owner’s consent, however, is always important. For example, a church may request permission to display a photograph of a NASA space shuttle lifting off, but may not request permission for the church to record the service and sell a DVD of the service. While the display will be permitted, the copying onto DVD and subsequent sale will exceed the scope of permission, subjecting the church to liability. Thus, it is extremely important that a church identify each “level” of use of the materials so the permission covers all intended uses. In addition, any permission should necessarily involve a written document to prove consent to the use, usually in the form of a license.
Enabling the Church
Having a basic understanding of the interaction between copyright law and media use in the church will empower the church to make more meaningful decisions related to such uses. And, since the church is clearly not immune to copyright (or trademark) infringement litigation, it has become increasingly important for the church to ensure that each instance of use of a copyright or trademark owned by another party is lawful. Hiring a qualified professional to assist the church in making that determination is essential.
