Legal Ramifications of Use of Media in the Church. Copyright Overview.
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What we will cover:
Basic Copyright Law
The Religious Service Exemption
Playing and Performing Audio and Music in Church
Video and Movies in Church, Including Online and Youtube.
Plays and Skits in Church
Bible Scripture Copyright
Examples of Legal Cases Involving Churches
Fair Use Act
The contemporary American church today utilizes a far greater amount of diverse media in their activities today than they did 20 years ago. Hardback hymnals have been replaced by dual rear projectors showing lyrics to the latest Christian radio song written by a popular contemporary artist while emotionally stirring graphics and images populate the background. Online sharing of video-recorded services make their way from the church website to social video sharing sites. Church members volunteer to do such things as sing, perform plays, create graphics, play music and create videos. “There are wonderful ways that technology can help us do things we could not do or do as effectively in the past” (Jewell 24). New media is spreading throughout churches, but often times the media is spreading faster than the knowledge of what the legal ramifications of new media could have on a church organization.
Like many religious organizations, the business aspect of the organization is typically not in the spotlight as much as a commercial organization’s. In smaller churches there can be a mentality that because the staff is mostly volunteers and working for the “greater good”, certain laws do not apply to them, or they may feel they can simply fly beneath the radar. This is not the case. A church could legally be fined up to $150,000 just for playing a movie without permission (“The Need”). The financial damage along with the damage to the church’s reputation make it imperative that churches are not ignorant of the copyright laws applicable to the media they are using.
What Basic Copyright Covers
Under general copyright laws in the United States, the creator or owner of a copyrighted work is entitled to: reproduction rights – the right to make copies of the works, distribution rights – the right to distribute copies to someone else whether by sale or giving it away, creation of adaptions or derivative works – the right to create a new work or works based off of the copyrighted work, and performance/display rights – the right to perform a work or display it in public (Fishman 159). One can see how almost anything a church would do with a copyrighted work would be in violation of at least one of these laws unless legal rights were somehow obtained.
This information will address the typical American church, although much of it applies to any religious organization within the United States. Churches are considered non-for-profit organizations. Because non-for-profits are organized under state law, not all non-profits have the same privileges or restrictions (“Non-profit Organizations”). In the case of copyright however, the regulations are generally the same across the board for all churches. The most important distinction American churches have that other non-profits do not have, is the religious service exemption of the U.S. Copyright Law (Section 110) (Godwin).
The Religious Service Exemption
The religious service exemption states:
Performance of a non-dramatic 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 shall not constitute infringement of copyright. (Godwin)
This is helpful in that it legally allows for a church to perform music, play recorded music and display lyrics to copyrighted material without having to get permission or pay royalties. For traditional church services, this benefit is suitable. The average contemporary church today however is moving beyond what the religious service exemption covers. For instance, under the religious service exemption churches are not allowed to copy music (useful for practicing and teaching), and they are not allowed to video or audio record any of the music they perform. This means a church may not record their worship service and distribute them if they played or performed any copyrighted music during the service. This would be considered “reproducing” the copyrighted music, and the law only allows for “performance” and “display” (Godwin).
The religious service exemption is the only special exemption to the law that has been provided for churches. More recently however, there have been several licensing options that have been made available to churches to make the process of legally operating media much easier. This is good news for churches since the advent of interactive media and the global church structure is quickly moving the church beyond what the religious service exemption can cover. While new copyright dilemmas will come up as new technology and situations arise, there are easily navigable waters for the average contemporary church today if they will educate themselves. The most common uses of media in the church today will be examined and it will be shown how churches can operate that media without the fear of being in copyright violation.
Going Beyond the Coverage of the Religious Service Exemption. Playing and Performing Audio and Music in Churches.
The playing and performance of copyrighted music in church is covered under the religious service exemption as previously described. Making copies of music is still a violation of copyright and one that is a difficult roadblock to get around for many churches. “Many church music leaders who have made efforts to honor the law and have tried to obtain permission first from the copyright owner before making copies have found this to be a time-consuming challenge and in many cases, an administrative nightmare” (“CCLI: What We Offer”). A far easier method is now available to churches who wish to make copies of music for internal use and who wish to record live performances of copyrighted music. Christian Copyright Licensing International (CCLI) is an organization created specifically to allow churches to obtain a subscription that gives them a blanket of coverage for using lyrics, playing songs, and making copies of recordings to be used internally for rehearsal. It also allows for the live performance of copyrighted music (live performance only, accompaniment tracks may not be reproduced) to be video-recorded or audio-recorded and given out or sold. If sold, CDs may not be priced over $4, and DVDs may not be sold for over $12. In order for a church to broadcast the performance of copyrighted music online, an extended license must be purchase from CCLI. It’s important to remember that CCLI only covers certain songs. CCLI covers over 200,000 songs that can be viewed through an online database. Should a church wish to make an original recording of a copyrighted song, they need to contact the copyright owner to obtain a mechanical license. A fee will be charged per song, per recording (“Copyright Information”). Except for internal use within the church, CCLI respects the Copyright act of 1976 that gives the author of the work all reproduction and distribution rights (Fishman 6). CCLI does allow for the printing of lyrics and music. A church may:
Print songs, hymns and lyrics in bulletins, programs, liturgies and songsheets for use in congregational singing, create their own customized songbooks or hymnals for use in congregational singing, create overhead transparencies, slides or use any other format whereby song lyrics are visually projected (such as computer graphics and projection) for use in congregational singing, and arrange, print and copy your own arrangements (vocal and instrumental) of songs used for congregational singing, where no published version is available. (“CCLI: What We Offer”)
CCLI is not the only company that works with churches to make copyright compliance easier, but it is currently the most extensive and influential (“CCLI: Who We Are”).
Video and Movies in Churches: In Service and Online
Video carries with it many of the same challenges as music for churches. Almost all prerecorded motion pictures and any other produced videos are authorized for personal home use only. This includes brief video clips. They may be family-friendly and often casual, but churches are not homes, they are public settings. Special permission must be obtained for any public performance. According to the Federal Copyright act of 1976, violations can result in fines up to $150,000 per infringement (“The Need”). Christian Video Licensing International (CVLI) is a company that was created by CCLI to offer churches easy copyright coverage for videos by more than 400 producers. Here are the primary things a church can do if they obtain a CVLI license:
Pastors can use selected movies to illustrate sermon points. Sunday schools and Youth Groups can view the latest videos. Educational classes can use videos for teaching and training. Churches can host special event movie nights. License covers manufactured DVD’s and videocassettes purchased, rented or borrowed. (“About the Church Video License”)
YouTube Videos During Church Service
The license does not cover materials that have been copied from another source or recorded from television. What this means in regards to video websites like YouTube, is that a YouTube video can be played in church as long as it is being streamed from the YouTube website or embedded someplace else online. A YouTube video cannot be copied to a DVD or distributed because that video belongs to the person who uploaded it and to YouTube (“Terms of Service – YouTube”). Whether the content of the YouTube video itself is legal, is the responsibility of the person who uploaded the video, not the church who may be playing it.
It’s very important for churches to remember that as with music, only certain videos are covered under the CVLI license. If a movie were not on the list, then the church would be in violation of copyright even if they just played a clip. A common mistake churches make is with the movie The Passion of the Christ. The Passion of the Christ is not covered under the blanket CVLI license, a special license must be purchased to show it. The price begins at $75.00 for audiences up to 1,000 people, and go’s up as the audience size increases (“The Passion of the Christ”). Whether it is designed this way to get more money out of the churches or not is debatable, but the fact remains many churches go right ahead and play the movie anyway without giving thought to the fact that they are violating copyright, and in a sense, stealing. The irony of this is not lost on many.
It was briefly stated earlier that a special license must be purchased to broadcast the performance of copyrighted music online. This applies to video-recorded performances as well. “Live streaming or podcasting over the internet is recognized as a ‘broadcast performance’ and by its nature, goes outside the confines of a church building. So the religious services performance exemption written into the U.S. Copyright Law would not apply” (“The Need”). A church that accidently puts part of a song in a podcast of their pastor’s message or forgets that they have music playing in the background of the message will be in danger of copyright infringement if they don’t have a license to broadcast online. Should the church decide to acquire a license and begin broadcasting their worship online, it’s important that they only broadcast songs that are covered under their license. Extra caution should be taken to make sure old songs and hymns that the church may have sung for years are either public domain or covered under CCLI. Because it’s lawful for churches to perform any music due to the religious performance exemption, remembering to check and see if the music they are so used to performing is licensed for broadcast over the web can sometimes be forgotten.
The Performing of Plays and Skits in a Worship Service
The performing of plays and skits during church services is becoming increasingly popular. According to the religious performance exemption “performance of a non-dramatic 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” shall not constitute infringement of copyright” (Godwin).
Dramatic is defined as a story in which the narrative is not related but is represented by dialogue and action. Therefore, dramatic narrative would include plays and motion pictures. Non-dramatic literary works would include poetry, novels, and textbooks. Non-dramatic musical works covers both song and musical composition. (“Copyright Glossary”)
Copyright Laws Regarding Bible Scriptures
Bible versions are also copyrighted works that need to be handled a certain way to avoid being in violation. There is a tendency among Christians to think that because the Bible is the word of God, they should be able to do whatever they want with it. And this is true in a sense, but nevertheless, all recent translations of the Bible carry with them a copyright. The copyrights on Bibles are not to make the Bible less accessible, but to protect the work and to fund the translation. The New International Version (NIV) took 100 scholars 10 years to translate (“The NIV Bible”). If someone where to make a copy of the NIV Bible, but go through and change words around, it would have the potential to not only damage the reputation of the NIV, but expose people to a corrupt Bible. Therefore, even in churches, it’s important to recognize the translator’s requests and abide by their copyright regulations. Fortunately, they are all fairly simple and more or less the same (“ESV Bible”).
It’s rare that copyright violations in American churches will ever become a violation to the point of a lawsuit, but it can happen and is beginning to happen on a more regular basic. Very recently Lakewood church – the largest church in the country (Perkins) – was sued for $3 million. The church was sued by the band “The American Dollar” for continuing to use an instrumental track in a promotional video after the yearlong license agreement between the band and the church had expired. This secular band claims the church played the video during a service that was broadcast on television while the song was only licensed for DVD and online promotions. The statement from Lakewood church is, “The music in question is 1 minute of background music which Lakewood Church had a license to use. The plaintiff is apparently confused about the scope of the license, and are now demanding $3 million for uses that are authorized. We think this is unreasonable” (Shellnut). Lakewood church also said that they didn’t know the license had expired and offered to renew the license before they were sued by the band. The church believes the band is taking advantage of them strictly for the money, the band says it’s not about the money at all, they just don’t want to be affiliated with Lakewood church anymore. This is something that the United States could start seeing more and more of. Large churches that utilize mixed media – such as Lakewood Church – can encounter difficulty keeping track of what songs, videos or text is licensed for what particular media. If a song is licensed to be played only in church, but a piece of it gets recorded and broadcast over the web, it could pose big problems for an organization. This is one reason why it’s wise for churches to work with a company like CCLI that offers blanket coverage for a certain selections of media, and then work strictly within that media.
Another instance of a church being sued recently occurred when Yesh Music decided to sue First Baptist Church of Smyrna, TN, for allegedly using two of Yesh’ songs in videos streamed from the church’s website. Yesh claims that no license was granted for the use and is seeking $150,00 for each infringement plus the attorneys’ fees (“Smaller Churches”). Due to its smaller size, First Baptist Church will have a harder time finding the resources to fight against the lawsuit.
Even for small American churches, not knowing is no excuse for violating copyright laws.
According to Richard R. Hammar, J.D., LL.M., CPA, Copyright infringement does not require that the infringer “intend” to violate one or more of the copyright owner’s exclusive rights. In many cases, copyright infringers “innocently” commit copyright infringement in the sense that they do not realize that what they are doing is wrong. This is no defense to liability. (“Smaller Churches”)
While some companies are clearly holding churches to high standard when it comes to copyrighted material, the church as gotten some slack in a few areas. In 2008, U.S. churches final received permission to broadcast the Super Bowl in their facilities. In 2008, after many requests from members of Congress and The Rutherford Institute, the NFL changed its policy and gave churches the right to show the Super Bowl on church property. There is no limit to screen size, and the churches are not allowed to charge admission. Donations may be taken at the event. To avoid potential copyright infringement, any church advertising a Super Bowl event should not use the words “Super Bowl” in their advertising (“NFL Changes Rule”).
The Fair Use Act
There is sometimes debate among churches regarding fair use. Section 107 or the Copyright Act of 1976 states that four factors determine if the use of a copyrighted work falls under the fair use act.
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. 4) The effect of the use on the potential market for or value of the copyrighted work. (Miller 112)
Fair use cases are rarely as cut and dry as other copyright cases. This is because there is a lot of room for interpretation. The environment of the church tends to produce a lot of work that may qualify as fair use. For example, if a preacher used a handful of lines from a popular book to make his sermon points, that would most likely be acceptable because it is not of a commercial nature, he is only using a portion of the speech, he is relating the book to scripture so he is in a sense creating a new work, and he is not hindering sales or the potential market value of the book. In this instance, it could almost always be argued that this is fair use. However, if the preacher’s sermon gets recorded and broadcast on the web or TV, it’s possible that the author or publisher of the books may feel the preacher’s statement are damaging to the sales of the book because if was broadcast to thousands of people. If they can prove this, the author or publisher may be able to make a case. As churches continue to grow and utilize new media, many are starting to be viewed as commercial organizations as opposed to the old wooden building with pews and an organ that is only open on Sundays. This will expose them to closer examination to make sure they are complying with standard business practices – of which a large part is copyright.
It is the opinion of the author that some churches today are in violation of copyright due to lack of knowledge, yet many more are aware that they are in violation and feel it is not a big deal. I know from personal experience that some church leaders have no problem turning a blind eye to copyright violations because they feel it is for a greater good. It might be because they feel spending $70 to play a movie for the church is a waste of “God’s money”. Perhaps they’ve told themselves that it is impossible to keep every aspect of the law (jaywalking, accidently going a few miles-per-hour over the speed limit, etc.). But they need to realize that the consequences of even a small copyright violation could be detrimental to their ministry and to their congregation. The Bible says that we should not give offence in anything so the ministry will not be blamed: “Giving no offence in any thing, that the ministry be not blamed” (King James Bible, 1 Cor 6.3). It says we should attempt to live peaceably with all men to the best of our abilities: “If it be possible, as much as lieth in you, live peaceably with all men” (Rom 12.18). On top of that, God promises that He will always provide a way to escape temptation: “There hath no temptation taken you but such as is common to man: but God is faithful, who will not suffer you to be tempted above that ye are able; but will with the temptation also make a way to escape, that ye may be able to bear it” (1 Cor 10.13). In his book The Next Generation Leader, Andy Stanley asks the question, “why would … [we] abandon the principles of God in order to maintain the blessings of God?” (147). God is able. He doesn’t need his church to abandon Godly principles in order to get a job done for him. The Bible says that obedience is far better than sacrifice (1 Sam 15:22). Churches need to stop feeling like they are the exception to the rule, and start being a testimony by setting the example of the rule. Jewell describes technology in some churches as a “if you build it, they will come” type scenario. He relates churches to the movie Field of Dreams, where they simply had to build a baseball field and everyone would come (78). Media programs in churches do not work that way. It needs to be an extension of the spirit of the people in the church. If a church is bending their beliefs in order to run great media, it could be a reflection of a deeper issue; works before faith, instead of faith producing righteous works.
“About the Church Video License | CVLI.” CVLI – Church Video License. Web. 30 Nov. 2011.
“CCLI: What We Offer: Church Copyright License.” CCLI: Global. Web. 26 Nov. 2011.
“CCLI: Who We Are: About Us: Company Profile.” CCLI: Global. Web. 01 Dec. 2011.