Video Copyright Guidelines: For Pastors & Church Workers

by Dr. Jerome K. Miller

Copyright 1986 Jerome K. Miller

This document was produced under contract with the National Council of Churches. The contract authorizes publication in church magazines and unlimited duplication for distribution to pastors and church workers, on condition the document is reproduced in its entirety and without revision. All other rights are reserved by the author.

This document addresses the pressing issue of video copyrights. Other important issues, such as record and music duplication, were omitted to concentrate on this key issue.

Information contained herein represents the author's informed opinion, but does not constitute legal advice.

I. Introduction

The Copyright Law (Title 17, US. Code) is designed to protect the interests of "authors," including the creators of film and video. Copyright protection gives "authors" almost complete control over the duplication of their creative works, including videocassettes. It also gives "authors" the right to regulate public performances (showings or screenings) of copyrighted videocassettes.

II. Performing Videocassettes in Churches, Classrooms, Meeting Halls, etc.

Public Performances: When the copyright act was revised in 1976, Sect. 106(4) gave copyright proprietors substantial control over public video performances. With two exceptions, all video performances require a license from the producer or distributor--usually from the distributor. The first exemption centers on "public" in public performance, which is defined in Sect. 101:

To perform or display a work "publicly" means--

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The exemption was intended to authorize performances in the home for the family and immediate circle of friends. Questions have arisen about performances for other small groups of people. This question was recently tested in Columbia Pictures v. Redd Horne. The federal district and appellate courts held that video performances in a small booth that was open to the public, regardless of the number or the relationship of the viewers, were public performances. To put it simply, almost all performances outside the home are public performances and those who organize or conduct these performances violate the copyright law if the performances are given without a license.

One should not be too easily discouraged, though. Films and video supplied by religious distributors frequently include a limited performance right, called "audiovisual rights." This is a restricted right authorizing film and video performance in a nonprofit setting, without an admission charge. Audiovisual rights are also available for titles distributed by educational film and video distributors, such as: Encyclopedia Brittannica: Films,; Simon & Schuster; Time-Life; etc. If information about audiovisual rights does not appear in the catalog, ask the distributor for the information.. Videocassettes labeled "For Home Use Only" are sold without audio-visual rights.

Face-to-Face Instruction: The second exemption from the right to regulate performances concerns face-to-face instruction in the classroom. Schools and colleges, including Christian and parochial schools, have a special exemption in Sect. 110(1) that permits teachers and pupils to perform copyrighted works in face-to-face instruction, without a license. This permits teachers to use any videocassette in the classroom, if the following criteria are met:

1. The performance must be made from a legitimate copy;

2. The performance must take place in a classroom or similar place devoted to instruction;

3. Attendance at the performance is limited to the teacher and pupils in the course;

4. The performance must be part of a "systematic course of instruction" and not for the entertainment, recreation or cultural value; and

5. The performance must be part of the "teaching activities of a nonprofit educational institution."

To comply with Sect. 110(1), all the above criteria must be met. The first criterion is easily met, so long as the videotape was not illegally duplicated. The second criterion can be met by holding the performance in a classroom, meeting room, library or other room where classes meet. The third criterion indicates the performances are to be seen only by the teacher and enrolled pupils. The presence of other viewers appears to invalidate the exemption.. The fourth criterion requires the performances to be part of a "systematic course of instruction," which should not be a problem for Christian or parochial schools. The fifth criterion specified that the performance must be part of the teaching activities of a nonprofit educational institution. The guidelines were written for public and nonprofit private schools, so Christian or parochial schools should have little difficulty meeting the requirements.

The question then arises about classroom use of videocassettes labeled "For Home Use Only." Products displaying that label may have been sold for the home market, but the Sect. 110(1) exemption is not restricted by labels on a product. They may be used in the classroom so long as all the Sect. 110(1) criteria are met.

Does this exemption apply to Sunday school classes? The criteria for Sect. 110(1) are very specific and if Sunday school can meet these criteria, I assume the exemption applies to them. The question centers on the last two requirements, "a systematic course of instruction" and "nonprofit educational institutions" Some Sunday schools may be able to demonstrate that they follow a "systematic course of instruction." Subject-oriented materials (not entertainment programs) incorporated in a well-organized and well-documented Sunday school program seem to meet this test. The other problem centers on the definition of "nonprofit educational institution." This term is not defined in the copyright act and it has not been clearly defined by the courts. It is unclear at the moment if church education departments meet this requirement. The application of Sect. 110(1) to Sunday schools is not entirely clear, so it seems best to act cautiously in this regard. It seems quite clear, though, that religious services, Sunday morning nursery programs, youth meetings, weekend retreats and similar gatherings do not meet the requirements. Video performances in those situations require licenses.

III. Videotaping Off The Air

A little copying of a small part of a work by photocopying or other means is permitted as a form of "fair use" The theory of fair use was developed by the courts to justify scholarly quotation and other non-injurious copying. In time, the judicial concept led to criteria for judging a defendant's claim of fair use. Those judicial criteria are incorporated in Sec. 107 of the copyright act.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

All four criteria must be applied to each situation. It is relatively easy to use these criteria to justify photocopying a few pages from a magazine or an encyclopedia because the amount copied is small and non-injurious to the copyright proprietor.

Likewise, it is easy to justify quoting a few lines from a book, because neither the author nor the publisher is injured by this practice. difficult to use the same criteria to justify duplicating a copyrighted television program in its entirety. To clarify this matter, Congress urged the copyright owners and educators to develop fair use guidelines for videotaping off the air for classroom use. The copyright proprietors insisted the practice was illegal and educators insisted it was essential for good teaching. Under congressional prodding, the two parties developed an "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions." The document takes a middle ground on this issue by permitting the practice but restricting its application. The guidelines allow teachers to videotape programs off the air for classroom use, if the tapes are used only in the first 10 "teaching days" after the broadcast and are erased within 45 days of the broadcast. These criteria clearly apply to parochial or Christian schools, but they have limited application to other situations, and it is unclear if they apply to Sunday schools. The document states: "The guidelines were developed to apply only to off-air recording by nonprofit educational institutions."" As noted in the above section, it is unclear if Sunday schools meet this criterion. If they do, then the teachers are probably free to videotape programs off the air and use them within the limits of the guidelines. It seems clear, though, that performing programs videotaped off the air at scout meetings, youth meetings, clergy conferences, retreats, and the like is illegal without a license. Teachers who videotape off the air should obtain a copy of the congressional guidelines and follow them carefully.

IV. Broadcast and Cable Transmissions

The performance rights discussed above apply with special vigor to broadcasts and closed circuit transmissions. Specific broadcast or transmission licenses are required for all applications. Parochial or Christian schools with closed-circuit television facilities can frequently obtain an in-building transmission license, without charge, when the programs are purchased. Previously purchased programs can frequently be cleared for in-building transmission by writing to the distributor. Many church and educational film and video distributors automatically grant in-building transmission rights for all or most of their titles. Information about these rights appears in some film and video catalogs. Broadcasting a film or video always requires a broadcast license and almost always requires an additional fee. Transmitting a film or video via ITFS or CATV system always requires a transmission license and usually requires an additional fee.

V. Copyright and the Work of the Lord

I find it unsettling to hear pastors and church workers say copyright infringement is necessary to advance the work of the Lord. To put it simply, copyright infringement, regardless of the purpose, is stealing. Copyright infringement deprives authors of income from the sale, rental or licensing of their property. I am often told that a little copying won't hurt CBS, NBC or MGM because they have lots of money. The argument is specious. Most copyright royalties are paid to individuals and small firms that need the money to pay their bills. Copying, performing or transmitting their creative works without remuneration is theft.

VI. Questions and Answers

Q. Can a church that buys videotapes labeled "For Home Use Only" use the tapes in a church setting?

A. No, the tape was sold without "audiovisual rights ' so it can only be used in a private home, including the pastor's home, or in classrooms under the Sect. 110(1) exemption.. All other performances, including performances in meetings or religious services, require a license.

Q. If the videocassette does not hare a "For Home Use Only' label on it, can we use it in a church meeting?

A. This can only be answered by the distributor whose name appears on the tape (and not from the store where you bought it). Many church and educational distributors grant "audiovisual rights" with the purchase. Many firms grant the rights free or for a small charge. Videocassettes selling for less than $25 frequently do not include "audiovisual rights "

Q. Should religious video producers include information about performance and transmission rights with our products?

A. Yes, please include the information in your catalog and in the documents accompanying the videocassette. Why not place the information just below the copyright notice at each place the notice appears?

Q. What kind of a copyright notice should I put on cassettes?

A. The notice of: 1. the C-in-a-circle symbol or the word Copyright, 2. the year the work was created or entered distribution, and 3. the full name of the copyright owner. This notice should appear: 1. in the front credits, 2. on the cassette, and 3. in the front of the user's manual. If you place a copyright notice on a work, you are required to deposit two copies of the work with the Copyright Office. Copyright registration costs $10 and is highly recommended. Request the PA registration form from the Copyright Office, Library of Congress, Washington, DC 20559. The forms are free and are accompanied by a helpful pamphlet which includes a number you can call for additional information.

Q. A church bought videocassettes that do not have audiovisual rights. Can they be used in a youth meeting? Can the tapes be used at an adult retreat?

A. In both instances--no. Neither situation can be described as part of a "systematic course of instruction" which exempts performances under Sect. 110(1). These situations also do not fall under the private performance exemption. These situations require a license, which may be free for religious works, but which may be expensive for popular movies. In situations like this, it may be easier and less expensive to rent the film or video from a church or university rental library. In so doing, be sure the library holds the audiovisual rights. These rights are almost always available for 16mm films. The situation is less predictable for video materials.

Q. Can I copy a 30-second scene from a video and incorporate the scene in a religious video I am producing?

A. If the scene is not very significant and the amount of copying is very small, and only one copy of the program will be made, and the program is not to be broadcast, transmitted, sold, rented or financially exploited--this may be a form of fair use. However, if the program you are producing will be duplicated to make multiple copies or if it will be broadcast, transmitted, sold or financially exploited in any way, you must request permission to make the copy and to perform, transmit or broadcast that segment of your new program.