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Monday, June 25, 2012

Clarifying Fair Use and Convenience Copies in the Church

**Read Disclaimer at Bottom of Article**

I recently became aware of an interesting discussion on the Renewing Worship blog (, and thought I would jump into the conversation. Although I would love to provide a direct link to the thread, I believe it was removed to avoid further confusion in the church. For that reason, I will first provide you with some background.

Kenny Lamm is a dedicated blogger and senior consultant for worship and music for the Baptist State Convention of North Carolina. A few weeks ago, he posted a response to what seemed to be an innocent question: “Are Convenience Copies Legal?” His response, which first raised various scenarios when copying would be “convenient,” went on to site Patrick Watts, Internet Development Strategist at Patrick states that:

Because copyright is based in law, the complete answer to the question is that each situation is slightly different, and there’s no one answer. And, because copyright law doesn’t define “convenience copies” or “in shipping copies” or “enlargement copies” or “page turn copies,” all of these uses are copying activity that, by the letter of the law, are activities that require us to ask, “does it require a license?

I can’t say I disagree with Mr. Watts so far (although I certainly wouldn’t have said it this way), but let’s continue.

Mr. Watts goes on to state that, “Fair Use attempts to give a framework for times when copyrighted material gets duplicated, but doesn’t necessarily need to be re-licensed for the activity.” He then cites Section 107 of the US Copyright Act and goes on to say that the statute, “doesn’t really tell us anything…except for #4.”

Pardon me?

A statute with at least four parts only has one relevant part? Mr. Watts’ opinion is, unfortunately, inconsistent with the law and policy of statutes drafting and interpretation. The statute is filled with relevance. More importantly, his opinion conflicts with court interpretations of the statute in likely every circumstance where the statute has been analyzed.

Not surprisingly, the balance of Mr. Watt’s analysis is erroneous and misdirected, both from a legal and logical perspective, which is why attorney Paul Schaffer, a self-proclaimed “intellectual property specialist” steps in to debunk the post.

After establishing himself as an authority on the topics of Fair Use and intellectual property, Mr. Schaffer goes on to analyze the Fair Use doctrine. And, although I agree in part, and disagree in part, with the presentation of his analysis, I think the more pressing issue is this: in the process of not answering the original question, all participants in the conversation have further convoluted the subject matter of Fair Use, including its application and interpretation.

Recently, I wrote an article explaining the Fair Use doctrine, including its application and interpretation. I’m reposting it here for your convenience. I believe this will bring clarification to an already difficult subject matter.

Now, let’s revisit the original question: Are Convenience Copies Legal? From a straightforward statutory analysis, the answer should be an obvious “no!” Why? Because “convenience” is not an intended purpose of the Fair Use doctrine. Sure, one could argue that making copies for ‘convenience’ to, for example, teach on the subject matter of the copy should fit nicely into the Fair Use paradigm, but there are two problems with that position. First, making a copy easier to read is not for purposes of teaching, or commenting, or news reporting, or any of the other concepts presented in the statute. Second, and this is where I certainly agree with Mr. Schaffer, if there’s a market for the types of copies you’re trying to make out of convenience (i.e., large print, etc.), the courts would be less inclined to determine that your use is, in fact, fair.

So, while the net result may be an encouragement to ask for permission, keep in mind that the idea of making a convenience copy is not completely misguided.  Back in 1984, the United States Supreme Court handed down an opinion concerning the copying of television programs on Betamax tapes [Wikipedia: Sony Betamax Case]. There, the Court determined that the particular conduct in question was for time-shifting purposes and fit within the paradigm of Fair Use. Applying the same logic and analysis, one could take a position that copying sheet music you already own with the sole intention of making the print larger is tantamount to time-shifting a television program you’re already entitled to watch. It should constitute Fair Use. It just might. Or it might not.

There’s one way to find out.

I hope this helps you in your decision making process.

~ Brock Shinen, Esq.

 **This article is for informational purposes only and does not constitute legal advice.**

Copyright Use in the Church - A Fair Use Analysis

Straight Forward Application
of the Fair Use Doctrine (If there is such a thing)

Most of us would like a simple answer. Am I permitted to use three minutes of a feature film in our church’s multimedia production? Can I quote three paragraphs from a famous book and incorporate them into a sermon? Can I download a picture from the Internet and use it on the church’s website? As much as any of us would enjoy a "yes" or "no" to any of these questions, the plain language of the Copyright Act is extremely instructive and apparently often ignored. By using a few simple tools to understand the "Fair Use" doctrine, virtually anyone can have enough information at their disposal to make a sound decision.**

Preliminary Questions

Before you venture into your Fair Use analysis, you must ask yourself two questions: (1) is the work I desire to use subject to copyright protection; and (2) did I obtain my copy of the work from a legal source and in a lawful manner. If you answered “yes” to both of these questions, you can move on to your Fair Use analysis. If you answered “no” to either one, Fair Use analysis may be inappropriate.
For example, let's say you want to use a passage from a book written in 1784 in your sermon written in 2003. Since that book would now be in the public domain, Fair Use analysis isn't necessary. The copyright in that book is now "owned" by the public, meaning essentially, you are permitted to copy, quote and otherwise use it at will. [Note: That doesn't necessarily mean you can copy it and attempt to pass it off as your own original work...but that's a whole different story.]

If, on the other hand, the work is subject to copyright protection, but you obtained it from an illegal source, Fair Use may not apply (even if your use is without a doubt a "fair"). Moreover, the topic of how you obtained your copy is becoming increasingly important in the digital age. That means that if you rented a DVD, decrypted it to make your own copy, then used a portion of your copy - that would otherwise clearly amount to Fair Use - you may still be liable for infringement. This is a much-debated topic, however, and is not yet fully resolved. In the meantime, make sure you obtain your copy of the copyrighted work legally and in a lawful manner.

One caveat to keep in mind relates to licenses that apply to copyrighted materials, such as VHS tapes rented from your local video store or library. When you start the video, you invariably see a message stating that the movie is for home use only and may not be copied, distributed, etc. While this is true in a literal sense, the Fair Use doctrine still applies, meaning that you may copy parts of the video if your use comports with the Fair Use doctrine. Note the difference between copying a portion of a VHS tape (which does not have copy protection controls) and copying a DVD (which has copy protection controls or “CSS”). Once you have determined that Fair Use may apply to your use, you can begin your Fair Use analysis.

The Statutory Criteria

At the outset, you should know that the owner of a copyright is granted certain exclusive rights, namely, the rights to copy, distribute, perform, display and make derivative works of the original work. Without the Fair Use doctrine, virtually all copying would be unlawful. Congress created the Fair Use doctrine, however, to allow people and institutions to exercise the rights of a copyright owner for the purposes of criticism, comment, news reporting, teaching, scholarship or research. As you might guess, the exception was probably carved out to enable news organizations and education institutions to use copyrighted material for the benefit of the public. The Fair Use doctrine, however, has grown well beyond its original purpose and now plays a significant role in other venues and industries.
In view of the purpose of the Fair Use doctrine, the Copyright Act sets forth four criteria for determining whether a use is “fair” and thus exempt from infringing the exclusive rights of the copyright owner: (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. To better understand the relationship between the four factors, we will address them one-by-one.

~The Purpose of the Use

You should always evaluate the real reason why you are using a part of a copyrighted work. If it is simply to exploit its commercial value or to avoid generating your own original work, then the courts will likely view your use as infringing. In addition, if your use is purely commercial in nature, the courts tend to find that the use is infringing. Note that whether the use is commercial or not is not determinative; rather, it is a significant factor considered by the court. On the other hand, if your use is truly to comment on or criticize an existing work and is not for profit, this factor will weigh heavily in your favor.

~The Nature of the Copyrighted Work

If an original work embodies mostly facts, the possibility that your use will be non-infringing increases. If, on the other hand, it is composed entirely of fictional expressions, more protection may be afforded. Likewise, if the original work is at the height of its commercial value, and part of that value relates to the fact that copies of the original are limited, your use is more likely to be infringing. This factor in the Fair Use analysis may be difficult to understand, but do not bypass it.

~The Amount and Substantiality of the Use

If you copy all of an original work, you are likely infringing. If you copy only a small portion, you are much safer. To say, however, that there is a hard-and-fast rule as to the amount of an original you can use without violating the copyright owner’s exclusive rights is without merit. Under the right circumstances, thirty seconds or two notes of a song may infringe an original; one picture from a book may infringe the whole; even a few frames from an entire film may be infringing. The reason for this is simple: the portion you copy may be the most important portion
of the original. An example of this took place when an Internet website began selling a handful of still frames from a full motion picture, without the consent of the copyright owner. The website did not sell the entire film. The website owners were sued for copyright infringement and argued the Fair Use applied; the court found the website owners liable for copyright infringement. The court, of course, considered the commercial nature of their use. It also considered, however, the fact that the still frames were probably the most valuable aspect of the film, since they could potentially generate more revenue than the film itself. This is a perfect example of why you should not rely on a belief that a concrete rule applies to this factor.
In evaluating your use, honesty is the best practice. Consider if the parts of the original you wish to use are the essence of the original work – even if only a small part. If the three notes of a song you want to include in your own song are readily recognized from the original work, then you may have used too much. If, on the other hand, you are only using a small portion of an original work, and that portion is not the “heart” of the original, then this factor will probably weigh in your favor.

~The Effect On the Market

Simple and to the point: Does your use of the portions of the original work effect the market for the original. If so, the odds are against you. If not, the odds are in your favor. This is relatively straightforward in the sense that you can evaluate from a common sense perspective whether your use will have any impact on the market for the original. If people will stop buying the original because of your use of parts of the original, the effect on the market of the original is negative and you will likely be infringing. If, on the other hand, despite your use, people will continue to purchase the original, the effect on the market for the original is not injured, and your use is probably fair.
There is one caveat here worth pointing out: simply because your use may decrease sales of the original work is not the determining factor. Rather, it’s whether your use supplants the market for the original, i.e., your work becomes a replacement for the original work.


Now that you have some tools to assist you in determining whether or not a use will be deemed “fair” without the copyright owner’s permission, think about the following examples:

You are the pastor of a large church. You just read a great book on living with purpose and would like to copy large portions of it for inclusion in your church’s newsletter. You instruct your secretary to make 1,000 copies of 35 pages of the best parts of the book. Result: Probably an infringement. Reason: Although the use is not commercial, you are copying substantial amounts of text from an original work that may result in lost sales to the owner of the copyright in the book, since your congregation may view your newsletter as the “cliff notes” and forego purchasing the book. Your purpose is to avoid creating your own original work and instead use without compensation a work created by someone else. You have copied much more than would be necessary to convey the thoughts and ideas you are trying to convey. Your purpose is improper, the nature of the original is presumably fiction, you copied a substantial amount, and the congregation may not purchase the book.

You are the worship pastor of your church. While driving along the highway, you hear a song entitled, “In This World,” on the radio. Although the song is clearly a secular song and was played on a secular station, you think you could change the words a bit and make it a “redemptive” song. You plan to write all new words for the versus, but plan to use the melody and the first line of the chorus, which reads, “In this world, there’s only one thing I need.” Since the song is about a man needing cigarettes and a bottle of alcohol, you think it would be great to rewrite the song to focus on how Jesus is the only thing we need. And, in keeping with the spirit of the original song, rather than go through the verses and talk about all the sins that keep you from living right, you will talk about how Jesus empowers us to overcome our sin. You write the song, and it turns out it’s a hit. You decide to record it and sell it for $15.00 at huge conference in the summer. Result: Probably not an infringement. Reason: Your purpose is most likely to comment on and/or criticize the original by showing how opposite life can be with Jesus in it (which is in striking contrast to the original song). You only use enough of the song to conjure up thoughts of the original, but you quickly use your own creativity to tell your story. Your use has become commercial, but you are not merely attempting to ride on the success of the original. Your use is unlikely to effect the market for the original (other than from a purely Christian perspective, in hoping that people might go out and by your song as a evangelistic means – and forego purchasing the original in the process), particularly since it is unlikely that the people buying your song would also be in the market for the original. Even if they were, however, it is conceivable that they would still purchase the original, since yours doesn’t replace it as much as it comments on it.

You are the director of music for a church. You have written down the names of ten songs you love and would like to record on a CD to be released by your church. Rather than record them live, you are going to simply “burn” each of the songs onto a single CD. The church is non- profit, and you will only be selling them for cost. Result: Probably an infringement. Reason: Your purpose is commercial (even though you are a non-profit entity and even though you are not making any money). Also, as in the first example, you are copying entire songs, which will certainly result in lost sales to the owners of the songs.

You are the editor of your church’s website. You have found some great photos on the Internet, and would like to include a few of them on the church’s website and in an electronic newsletter to be emailed to your congregation. The newsletter is free (although you have to subscribe to receive it) and you will give proper credit to the photographers in the newsletter and on the website. In fact, you will include a notice on the website that specifically states that the photos are copyrighted by someone else. Result: Probably an infringement, but depends on a number of factors. Reason: With respect to the website, you are taking entire photos and copying and displaying them without permission. Your copying and display are not for comment, criticism, etc. Rather, you are posting them simply because you believe that are great photos. Since a member of your congregation can now print off the pictures on his/her home printer, the market for those photos is diminished, notwithstanding your church’s non-commercial use. In addition, although you are not selling the electronic newsletter, courts often conclude in similar situations that your purpose is commercial in nature, since the use of copyrighted works will likely increase the value of your church (perhaps by increased membership/giving) – the commercial nature is indirect. You have also copied entire photos, making the amount copied substantial. On the other hand, if your purpose is to comment on or criticize the photos, then you are closer to a Fair Use. The photos are presumably a small portion of your article, preventing them from being the “heart” of your work. You giving proper credit does not help you, since you may still infringe even having given credit. In short, this is a tough call, and would depend on the nature of the article and the actual impact on the originals.

Hopefully you now have a better understanding on the nature of the Fair Use doctrine and its application.

~ Brock Shinen, Esq.

© 2012 Brock Shinen, Esq.
Law Office of Brock Shinen, Inc. 155 N. Riverview Drive, Suite #225 Anaheim Hills, CA 92808
Tel: 714.769.9120

** The reader should keep in mind that arguments may be made for varying results, and additional factors could result in a variety of outcomes. This article is intended to provide general information and considerations in applying the Fair Use doctrine. It is not intended to be legal advice or a substitute for actual legal analysis of your particular circumstances.