Copyright (and Wrongs) for Religious Organizations

November 2, 2015

“Copyright (and Wrongs) for Religious Organizations: Introduction to Copyright Law” is the first of a three part series of articles on copyright law and religious organizations.

. . . every author should have the property of his own work reserved to him after death, as well as living.

                                                                                          Eikonoklastes, John Milton, 1649

Those who labor in the vineyards of the Lord, both ordained and laity, know they are governed by both canonical (i.e., church) and civil laws. The various canon laws adopted by religious organizations govern how these organizations function within themselves. Civil laws are the laws adopted by the state to govern our behavior with others. Rabbis, priests, ministers, and imams are familiar with those civil laws that regulate the activities of their synagogues, churches and mosques: employment law, tax, zoning, etc. But one area of the law often overlooked is the law of copyright. This oversight is more surprising when we consider that much of what religious organizations do, liturgically and in furtherance of mission, is directly impacted by the laws of copyright. This includes sermons, hymns, websites and even certain prayers.

What then is copyright and what are the civil laws that govern it? Copyright is a form of intellectual property that describes rights given to creators for their literary and artistic works.

Copyright grants the creators of literary and artistic works protection for their work and contributes to the cultural and economic development of nations. As noted by the World Intellectual Property Organization, an agency of the United Nations:

The purpose of copyright and related rights is twofold: to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”

In the United States, the protection of these rights is governed by federal (as opposed to state) law. These rights were considered so important by the framers of the Constitution, that they embodied copyright protection in Article I of the Constitution and empowered Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copyright protection extends to literary works such as novels, poems, plays, reference works, sermons, computer programs, website content and newsletters. It covers musical works including hymns, anthems, and choral works and the accompanying texts. It protects dramatic works, choreography, pictorial, graphic and sculptural works, photographs as well as motion pictures, sound recordings, computer programs and even architectural works.

As important as it is to understand what copyright protects, it is equally important to understand what it does not protect. It is often simply stated that copyright protects the expression of an idea but not the idea itself. Facts and ideas cannot be copyrighted. However, the specific expression of an idea or the ordering of facts may be protected. Thus, for example, a sermon on the need for forgiveness is covered by copyright but the idea of forgiveness is not.

Copyright is created the moment the work (i.e., the sermon, the hymn, the anthem, the website) becomes “fixed in a tangible medium” by the author. In other words, from the moment the brush is off the canvas, the pen off the paper or the “save” button is hit, the copyright is created. Registration does not create a copyright; nor is a copyright notice “©” required. For works created today, the protections afforded by the copyright endure for the author’s life, plus an additional 70 years after the author’s death. In the case of “a joint work” prepared by two or more authors the term lasts for 70 years after the last surviving author’s death. For corporate publications, copyrights are valid for the shorter of 95 years from publication or 120 years from creation.

However, even though the author of a work may have died more than 70 years ago, care must still be given to a particular edition or performance of a work. Thus for example, although Handel died in 1759, a critical edition of the score of Messiah may be copyrighted as would any contemporary recording.

Copyright law gives the author or owner certain exclusive rights. These rights include the following:

  • the right to reproduce (i.e., “copy”) the copyrighted work or prepare derivative works based upon the copyrighted work;
  • to distribute copies of the copyrighted work to the public;
  • to perform or display the copyrighted work publicly or by means of a digital audio transmission.

Anyone who violates these exclusive rights without specific permission of the author or owner of the copyright commits copyright infringement. Thus, for example, if you reproduce a painting or picture on your organization’s website, and that image is protected by copyright, you will be infringing the copyright. Or, if you decide to show a movie to a group of seniors, you may be infringing the copyright. Other common activities that may be directly affected by copyright law include copying choral music, inserting hymn or chorus lyrics into bulletins, compiling devotional booklets or copying software in the organization’s office. The legal penalties for copyright infringement vary but may be severe and include statutory damages from $200 to $150,000 for each infringement and even certain criminal penalties. Even if no damages are assessed, the cost of litigation can be substantial and damage the organization’s reputation.

Religious organizations are not exempt from copyright laws. In Robert Stigwood Group Ltd.et al. v. O’Reilly et al., 346 F. Supp. 376 (D. Conn. 1972) an organization of Roman Catholic priests, performed a modified version of the musical “Jesus Christ Superstar” as part of its nonprofit ministry. The priests performed “Superstar” without obtaining a license either from the plaintiffs or from the American Society of Composers, Authors and Publishers (ASCAP). The District Court found that these performances infringed the plaintiffs’ copyrights and issued a preliminary injunction enjoining the defendants from presenting any future performances. In E.L. Publ’ns, Ltd. V. Catholic Bishop of Chicago, 754 F.2d 216 (1985) the Roman Catholic Bishop of Chicago was held liable for infringement for the unauthorized copying and use of hymnals.

Purchasing copyrighted materials gives one the right to use the purchased copy subject to the rights of the copyright holder. Permission, or a license, will still be required to make any use of the materials that would infringe the rights of the owner. Thus, for example, the purchase of sheet music or hymnals alone does not authorize a church to make copies or transparencies or to perform the works outside of a religious service. Of course, not all music contained in the hymnal may be covered by copyright. Certain music (and lyrics) may be in the public domain. In addition, music may be copied in an emergency situation to replace purchased copies that are not available for an imminent performance provided the church replaces the copies with purchased copies.

Similarly, computer software may be subject to both patent and copyright protection. A copyrighted software program cannot be copied without a license or permission from the copyright owner. Installation of software results in “copying.” For this reason, clergy and staff should read all software license agreements carefully as the purchase of software from a retailer generally gives permission to install the software on one computer only. The Business Software Alliance is an organization whose sole purpose is to locate and delete unlicensed software and capture pirates. Religious organizations should conduct periodic software audits to ensure they have a valid software license for every program on every computer. In addition, we recommend that they adopt a written software policy included in their employee handbooks that states only specified personnel are permitted to load software into the organization’s computers.

As more and more religious organizations expand their mission and ministry through the Internet, the chances of violating a copyright (and being caught) increase. Unless covered by a specific exemption in the law, you will always need to obtain permission to use copyrighted material. That permission and the license fees required are established by the copyright holder. These fees are often nominal but the failure to obtain the permission and pay the fee can be costly.

David Posteraro is the Chancellor and former Warden of Trinity Cathedral Cleveland and a member of the Board of Directors of the Consortium of Endowed Episcopal Parishes. He is a partner at KJK specializing in intellectual property law.