By law, an author or owner of an original creative work, whether literary, dramatic, musical, artistic or photographic has certain rights to their work. Among those are the rights to perform the work, to reproduce and modify the work, to market and sell the work, and to display it publicly. Copyrighted work includes, but is not necessarily limited to, books, articles, musical pieces, photographic images, internet web content, television shows and motion pictures. When someone engages in any of these actions without permission from the copyright owner or otherwise failing to pay a royalty, they are in violation of the federal law protecting the copyright owner's rights. But the law is not absolute.

        Copyright law does recognize some limits to the copyright owner's rights. One such exception is called the doctrine of "fair use." Generally, under this doctrine, using small portions of a copyrighted work is permitted for qualified purposes, particularly for commentary and criticism, to encourage the enrichment of society. Thus, academic institutions, schools, newspapers, the media and nonprofits involved in educational services for the public can use portions of copyrighted works for those specific educational or informational purposes without being liable for copyright infringement.

       The law provides some guidelines on what kinds of uses may fall under "fair use." These are 1) purpose and character of use; 2) nature of the copyrighted work; 3) amount and substantiality; and 4) impact of the copyright owner's potential market. Despite these guidelines, there is no bright line rule that determines when a use is fair. Each use is determined on a case-by-case basis. Even if someone conscientiously follows these guidelines substantially, only a court can decide whether the use is ultimately protected by the doctrine of "fair use", or not. So risk always exists when using copyright material when you do not have the permission of the owner or have purchased a license.

       Let's look at some general guidelines that should always be considered before using material created by others.

1. Productive Use. If you use an original work, such as a clip from a motion picture, the original work should be used as "raw material" for creation of a new work, preferably for a different purpose like social commentary or education. Your new work should transform the "raw material" to add something new, with a further purpose, different character, or new insights and understandings. Essentially, this alters the original work and renders your use "transformative." The more transformative the use is, the more favorable this weighs towards a finding of "fair use." For example, clips from a motion picture may be fair use, but they should not be the primary focus nor should it be shown in its entirety with no other content added.

2. Commercial Use. The use of an original work for profit weighs against protection under "fair use." Further, it is important to note that uses by a non-profit organization are not considered automatically non-commercial. Educational use or use by a charity has been found commercial where it has been for monetary gain. The focus is whether the user has profited or benefitted monetarily from exploiting the original work. Another way to look at the commercial aspect is from the point of view of the copyright owner. Will your type of use deprive the owner from receiving significant royalties? And what if other ministries followed your lead? Would that have a negative economic effect on copyright royalties? If so, get permission or a license.

3. Highly Creative Works More Difficult to Use. Generally, the more creative the work, the more protection from others' use it is given. The U.S. Supreme Court has found that some works are essentially so creative that they deserve greater protection under U.S. copyright laws. Entertainment works such as motion pictures, music, and some fictional books fall under this highly creative work category. While this does not preclude others from using small portions under the doctrine of "fair use," keep in mind that the use will be more scrutinized. The best approach in the common area of music is to consider purchasing a spot license for a one-time event, or an annual license to use various works through a national licensing agency like ASCAP or CCLI. Their royalty licensing fees are often priced quite reasonably for small group settings.

4. Quantity and Quality Considerations. Both the quantity and qualitative nature of the material amount used should be carefully considered. Only use what is needed to make your educational point. Courts will consider the amount taken in proportion to the original work as a whole. Substantial portions of an original work should not be used. Obviously, copying an entire work generally prevents a finding of "fair use." More important, however, is the copying of a key portion, famous portion, or "heart" of a work. Such use can weigh against a finding of "fair use," even if the portion used is small in relation to the whole work. When in doubt, get permission or a license.

This information is not considered to be legal or tax advice or services. Professional advice on specific issues should be obtained from an attorney licensed in your particular state.

© Carl F. Lansing, Lansing Legal, Denver, Colorado, June 2011 - [email protected]

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