Copyright

1.  What is copyright?

1.1  Copyright protection is provided by the laws of title 17 in the U.S. Code and protects original works of authorship. The protection extends to literary, dramatic, musical, artistic, and certain other intellectual works and extends to both published and unpublished works. Copyright protects original works of authorship. The copyright holder has the exclusive rights to:

• reproduce or copy the copyrighted work.

• produce derivative works based on the copyrighted work (right to modify).

• distribute copies of the copyrighted work.

• perform the copyrighted work publicly (either live or a recording).

• display the copyrighted work publicly.

1.2  The copyright holder as additional exclusive rights regarding visual works, including

• Attribution: claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create.

• Integrity: prevent the use of his or her name as the author of a distorted version of the work, and to prevent destruction of the work.

2.  Who owns the copyright?

2.1  Copyright protection begins at the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can claim copyright.

2.2  Where a work is made for hire, the employer and not the employee is considered to be the author. "Work for hire" is defined as:

2.2.1  A work prepared by an employee within the scope of his or her employment; or

2.2.2  If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire; or

2.2.3  A work is specially ordered or commissioned for use as:

• a contribution to a collective work

• a part of a motion picture or other audiovisual work

• a translation

• an instructional text

• a supplementary work

• a compilation

2.4  Ownership of a book, manuscript, painting, DVD, CD or any other copy or phonorecord does NOT give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

3.  What types of works are protected?

3.1  Copyright protects "original works of authorship that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

• Literary works: Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, software manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories

• Musical works: Songs, advertising jingles, and instrumentals

• Dramatic works: Plays, operas, and skits

• Pantomimes and choreographic works: Ballets, modern dance, jazz dance, and mime works

• Pictorial, graphic, and sculptural works: Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.

• Motion pictures and other audiovisual works: Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works

• Sound recordings: Recordings of music, sounds, or words

• Computer software

• Personal electronic mail

• Architectural works

4.  Do copyright laws apply to videos?

4.1  Video copyright law and the exclusions that allow church use, fall primarily under sections 106, 107 and 110 of the Copyright Act. Films and video generally fall into one of two types, those with "Audiovisual Rights" and those "For Home Use Only."

4.2  Audiovisual Rights. Some films and videos distributed by religious and educational distributors frequently allow limited performance rights in the form of Audiovisual Rights. This provides a limited right allowing a film or video performance in a nonprofit setting so long as there is not an admission charge. The packaging material must be specifically labeled as granting Audiovisual Rights.

4.3  For Home Use Only. Films and video produced for commercial use are labeled For Home Use Only and do not provide any audio visual performance rights. VCR tapes, DVDs and CDs without any labeling or specifically labeled "For Home Use Only" may not be played for an audience without first securing the copyright holder's permission.

5.  What is Fair Use?

The doctrine of Fair Use is typically used to use portions of a copyrighted work. To determine whether the use made of a work falls into the Fair Use exception, the following four factors must be applied on a case by case basis:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (this must generally be a school setting);

• the nature of the copyrighted work;

• the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

• the effect of the use upon the potential market for or value of the copyrighted work.

5.2  Religious Services Exemption

The Religious Services Exemption exempts the public performance of non-dramatic literary or musical works of a religious nature, in the course of services at a place of worship or other religious assembly from copyright infringement. This exemption does not extend to recording the performance of the copyrighted music in audio or video format.

This exemption does not extend to projecting or broadcasting the words and music, whether as one or separate, onto screens in the course of a service. It also does not extend to making copies for the purpose of preparing overhead transparencies or including with bulletins. If a church wants to make these types of copies, it must first obtain written permission from the copyright owner or obtain a license permitting such use.

Copyright infringement can result in significant damages of up to $100,000, injunction, and/or criminal penalties in addition to attorneys' fees and costs. There are companies acting on behalf of the copyright owners that randomly attend church services in an attempt to discover unauthorized use and collect license fees.

6.  Commercial copyright licenses

6.1  CCLI Licenses; Christian Copyright Licensing, Inc. ("CCLI") has reached agreement with a number of producers; religious, educational and commercial for musical works. It is important to note that while a CCLI license provides access to a large number of copyrighted works, not all musical works are covered by a CCLI license. In fact the church's own works are not covered by a CCLI license and permission should be requested to use the church's works through Jennifer Dunsdon in Legal Ministries. More information can be found at the CCLI website: http://www.ccli.com/

6.2  CVLI Licenses: Christian Video Licensing International ("CVLI") has reached agreement with a number of producers: religious, educational and commercial for video and film works. Their license allows a specific church, generally not an entire mission center or denomination, to purchase a license to show films and videos from studios which they have reached an agreement with. They do NOT have agreements with all the major studios, and some major studios have only licensed the showing of movies released prior to 1986. There are several important limitations on what the CVLI license does not cover:

• Showings at any location other than the one specified on the application (i.e., reunions, campgrounds, etc.)

• Showings where there will be a fee charged

• Showings where the material has been edited in any way

• Any recording from TV, cable or satellite

• Events or other organizations who use the church but are not affiliated with the church

Even with a CVLI license, individual churches will need to ensure they are showing films and videos which are covered by the CVLI license. More information can be found at the CVLI website: http://www.cvli.org/cvli/index.cfm

7.  How do I request permission to use a work from a copyright owner?

The first step is to determine who owns the copyright (author, publisher, or other party). The request letter should include:

7.1  Title, author and/or editor, and edition of materials to be duplicated

7.2  Exact material to be used, giving amount, page numbers, chapter and, if possible, a photocopy of the material.

7l.3  Number of copies to be made

7.4  Use to be made of duplicated materials

7.5  Form of distribution (classroom, newsletter, campus network, etc.)

7.6  Whether or not the material is to be sold

7.7  Type of reprint (electronic, photography, offset, typeset)

8.  Audio and Videotapes of Religious Services

8.1  The religious services exemption permits the performance by the congregation and choir of hymns in the course of the worship service, but the exemption does not extend to taping the performance.

8.2  If a church wants to tape services, which may include copyrighted music or other material, options include:

• Obtain permission from copyright owners.

• Avoid the use of copyrighted music.

• Turn off the recording device when copyrighted music is being performed.

• Obtain a blanket license agreement, which allows copying.