This is part two 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.
Last time, we talked about some of the essence of copyright law, and we left our conversation wondering how to decide if copyrighted material can be used. Here are a couple questions to use as a litmus test before using copyrighted material:
What is the purpose/intent of your use?
Some of the first questions we ask in our office, what is your intention with the use of the copyright? Are you trying to make a point, create a new use, and how will the work be used.
Fairside Fictional Baptist Church takes a series of copyrighted quotations about leadership and puts them under photographs of leaders in action in the Sunday Slide presentation. The combined use of the quotations with pictures have changed the original purpose of the creating a new commentary or insight into the original work. This is usually a “fair use” under the copyright law.
In fact, in a recent case involving Google’s use of copyrighted pictures as thumbnails in its searches, the courts ruled that the use was fair under the “fair use” doctrine. This ruling was based on the fact that Google’s use (a pointer to the copyrighted material) had substantially changed the original purpose of the copyrighted materials (entertainment and/ or informative).
As late as 1994, the Supreme Court has used this part of the Copyright Act is a major indicator in deciding If a use is “fair”.
What kind of work are you using?
The major impetus of this section involves whether the use is published or non–published. It is much easier to pass the test of “fair use” if your use is from a published work than a non-published work. A non-published work usually means the copyright owner has not derived compensation for the work.
The underlying intent of copyright law is that the works “benefit the public”. As such, is it usually easier to pass the “fair use” test if it comes from non-fictional pieces than in those that are fiction.
For example a quote from the Wall Street Journal for commentary will be an easier sell than a quote from a popular movie. Again this is not absolute.
Next up, we’ll ask two final questions to determine whether copyrighted material can be used legally.