The Fair Use Doctrine and the Religious Services Exception

November 12, 2015

“Copyrights (and Wrongs) for Religious Organizations: The Fair Use Doctrine and the Religious Services Exception” is the second of a three part series of articles on copyright law and religious organizations.

In truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”

Justice Story, Emerson v. Davies (1845)

The fair use doctrine allows people to use copyrighted materials in order to critique, (ex: copying a painting to illustrate the artist’s technique), to educate (ex: copying a portion of a poem in a book about the poet’s life), and to create new and original work (ex: building your own Mona Lisa out of Legos). As early as 1740, the English Court of Chancery recognized that copyright protections were subject to rational limitations. In the case of Gyles v. Wilcox, Lord Hardwicke ruled that a “true abridgement” of an original work could, in fact, result in a completely new work that did not infringe upon the copyrighted material. This doctrine of “fairness abridgement” would eventually evolve into the modern concept of “fair use.” Originally existing only at common law in the United States, the fair use doctrine was codified into statute in the Copyright Act of 1976.

What constitutes Fair Use?

As set forth in the Copyright Act, the fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright.”  The Act then lists four factors that must be analyzed to determine whether the use made of a work in any particular case is a fair use:  These factors are:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Each of the four factors must be considered and balanced against the others to determine if a particular use is an unlawful infringement or a permissible fair use. Unfortunately, as noted by the Copyright Office, “[t]he distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.”

Commercial vs. Nonprofit

The first factor considers whether a use is for commercial or nonprofit purposes. If a use is for nonprofit, educational purposes, the copying is more likely to be a permissible fair use. However, a use for educational purposes can still be an infringement if unacceptably large portions of the copyrighted work are lifted. Thus, the newly revised curriculum for EfM (Education for Ministry) offered at many Episcopal churches cannot copy the entirety of Diarmaid McCulloch’s Christianity: The First Three Thousand Years, even though EfM’s purpose is solely nonprofit education.

The more creative the work, the greater the copyright protection

The second factor speaks of “the nature of the copyrighted work.” This factor asks whether the copyrighted work is “factual” in nature, such as technical or scientific presentations of data, or “creative,” such as works of fiction, poetry, photographs, or paintings. The more “creative” the work, the greater the copyright protection and the less likely to be exempted by the fair use doctrine. For example, McCulloch’s Christianity is a work of considerable scholarship and creativity, and, as such, enjoys more protection than a simple list of books on the Cleveland Public Library’s website that discuss the history of Christianity.

When it comes to copyright infringement, Quantity Matters

With respect to the third factor, only a small or unsubstantial portion of a work may be copied, and then only for the purposes of criticism, comment, scholarship or education. However, according to the Copyright Office, “[t]here is no specific number of words, lines, or notes that may safely be taken without permission.” So, for purposes of our example, I am free to copy these opening words from McCulloch to help explain the limits of the fair use doctrine:

In seventeenth-century England, there lived a country parson called Samuel Crossman. A rather reluctant Anglican of Puritan outlook, he spent most of his ministry in a small Gloucestershire parish, whose chief hamlet is delightfully called Easter Compton, though briefly at the end of his life he was dean of Bristol Cathedral.

I am not free, however, to copy the rest of McCulloch’s Chapter One, even in the guise of criticism, comment, or scholarship.

Economic Harm

Finally, the fourth factor looks to the economic harm that the copying may do to the owner of the work.  So, if I were teaching an EfM class, I could not PDF Christianity’s chapters and post them to my course’s webpage for my students to read since that would reduce the market for McCulloch’s work. Similarly, any commercial (i.e., fund-raising) activities by a church or religious organization that involve wholesale or substantial copying are likely not protected by the fair use doctrine, no matter how noble the cause. For example, charging the public an admission fee to view “Ben Hur” would likely constitute an unlawful infringement, even if the proceeds all went to charity. When in doubt, always obtain the permission of the copyright holder to use any copyrighted work in connection with such income-producing activities.

Various Types of Copyright Infringement

Direct copying is not the only form of infringement. Infringement may also occur, and most often does, when portions of one work are used in a new work. In these cases, courts must not only use the four-factor test, but also ask whether the new work “transformed” the copyrighted material. In 1994, Supreme Court Justice Souter, in Campbell v. Acuff-Rose Music, stated that the central purpose of the fair use investigation in these cases is to determine whether the new work adds something new, “with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative’.” He continued,

Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

One must be careful, however, to observe that a “transformative” work is one that is substantially different from a “derivative” work. The Copyright Act grants to the creator of the original work the right to prepare derivative works based upon the author’s original. A movie version of a theatrical play would be a derivative work. A parody of the same play would likely be seen as transformative.

While not directly applicable to religious organizations, the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals” offers valuable guidance on the lawful use of copyrighted works in educational settings, such as Sunday School or other programs offered by a church. The Guidelines are freely available from a variety of sources on the internet. Also of help is the “Code of Best Practices in Fair Use for Academic and Research Libraries,” available at www.arl.org.

The Religious Services Exception.

Section 110(3) of the Copyright Act provides a very specific and narrow exception to infringement for churches and religious institutions, known as the “Religious Services Exception”. This section exempts churches from liability for the “performance of a nondramatic literary or 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.” The legislative history for the exception states what the drafters of the law had in mind and is useful in understanding both the exception and its limitations:

The exemption, which to some extent has its counterpart in sections 1 and 104 of the present law, applies to dramatico-musical works “of a religious nature.” The purpose here is to exempt certain performances of sacred music that might be regarded as “dramatic” in nature, such as oratorios, cantatas, musical settings of the mass, choral services, and the like. The exemption is not intended to cover performances of secular operas, musical plays, motion pictures, and the like, even if they have an underlying religious or philosophical theme and take place “in the course of [religious] services.”

It is important to bear in mind that the exception applies to the performance only, and not to the copying of religious music or to the playing of pre-recorded music since such copying/playing is not a performance.

It is also important to remember that the Religious Services Exception protects only those live performances made “in the course of services at a place of worship or other religious assembly.” Again, the legislative history is informative:

To be exempted under section 110(3) a performance or display must be “in the course of services,” thus excluding activities at a place of worship that are for social, educational, fund raising, or entertainment purposes.  . . . Since the performance or display must also occur “at a place of worship or other religious assembly,” the exemption would not extend to religious broadcasts or other transmissions to the public at large, even where the transmissions were sent from the place of worship. On the other hand, as long as services are being conducted before a religious gathering, the exemption would apply if they were conducted in places such as auditoriums, outdoor theaters, and the like.

This requirement raises interesting questions about a church’s liability for podcasts or other broadcasts of religious services. If your church’s Sunday or evensong service is podcast, and the service contains copyrighted music, the broadcast of that music would not be protected under the Religious Services Exception.

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.