This is part one in a three-part series on fair use law and your church. This article is written by a copyright professional, but it is not to be considered specific legal advice for your church. As each situation is unique, if you have specific questions, please consult an intellectual property attorney. We encourage you to read this material, digest it and put it to use at your church. We’re going to be taking this material in bite-sized chunks since it’s a lot to digest, so stay tuned all week as we continue looking at fair use.
Fair use is one of the most complicated and ambiguous sections under the copyright law. It is very open to interpretation and can only reasonably be looked at on a case-by-case basis. However, there are some basic guidelines and uses that can be applied to your situation. I will try not to burden you down with legalese in this article. For most of the people reading this article, this will not be new ground, my goal is to lay the groundwork for the subsequent parts of this series.
What is Fair Use?
Fair use is the general name given to a set of limitations of copyright found in section 107 through 111 of the Copyright Act. Specifically, the statute states:
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
So that’s what fair use is. But what does that means practically? The four factors used to determine if a use is “fair” are:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
or in layman’s terms:
- What is the intent of your use? Is there a substantial change in the copyrighted material?
- What kind of work are you using?
- How much of the work are you using? and
- Are you hindering the copyright from making future money because of your use?
A mouth full to say the least. The courts, however, have given some direction on some uses and examples that they consider to be “fair use” According to the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law,
quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
This section justifies the use of commercials and music in the church:
… quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, … reproduction by a teacher or student of a small part of a work to illustrate a lesson.
Although there are many uses of copyrighted materials that fall within these uses above—that are many cases where they do not.
Next up, we’ll look at some questions to ask yourselves in determining whether copyright materials are permissible to use.