This is part three 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 started asking questions to help determine if copyrighted material is suitable to use. Two final questions will finish our discussion of fair use for your church:
How much of the work are you using?
It has been said less is more. Nowhere is this truer than in use of copyrighted materials. Another key factor under this section will be whether you are using the “nut” of the copyrighted works. Are you using the portion that defines the essence of the copyrighted works? Parodies are a little different and are an issue unto themselves. Please be reminded there is no magic length or number of measures, etc., that constitutes infringement.
Your pastor is preaching a sermon entitled I Have A Dream—where he speaks about his dreams for the church. He also speaks about Martin Luther King’s dream for America. That would usually be permissible under the “fair use” doctrine. Your pastor preaching verbatim the whole speech or ending his sermon with “Free at last, free at last. Thank God Almighty, we are free at last”, would most likely not pass the fair use test. Your pastor is using the “essence” of the copyrighted works. In fact the King family has been very successful in litigating against unauthorized use of this famous speech.
Are you hindering the copyright from making future money because of your use?
As stated before, hindering the ability of the copyright owner from being compensated is a huge factor. There are cases and examples that fall on both sides of this issue. A case that is in the news right now is the famous poster of Barack Obama, where President Obama is looking up with a meditative expression. The Associated Press (AP) has filed a lawsuit against the artist, Shepherd Fairey, claiming copyright infringement. AP claims their copyrighted photo was used as the inspiration of the poster. Although Fairey has repurposed the photo (changed the use) and used it to better the community, I am sure AP will be able to bolster a serious argument that Fairey has denied them the ability to use the photo to create revenue. Even if the AP never thought of the potential use themselves.
We had a recent question on the Church Marketing Lab, where a church wanted to use the logo and advertise a Guitar Hero tournament. Although this is mainly a trademark issue, some of the issues are relevant to this discussion. After placing a call to MTV—I was told by a representative that MTV planned a series of tournaments and therefore any other use would be in direct competition. Even though the church would not be charging for their event it could potentially pull from MTV’s revenue.
As you can tell “fair use” is not cut and dry: The law is subjective to the judge, the jury, acceptable practices and more importantly intent. When in doubt, leave it out or consult an intellectual property attorney.