Display picture of book (cover)

[rjwalker]

I'm sorry this thread has taken the direction it has.

[CopyrightSolver]

Originally Posted by rjwalker

Is there case law on the Religious Service Exemption supplanting the wider Fair Use exceptions for churches?

I never claimed that there was any such case law. I stated that there was case law that provided a more narrow definition of Fair Use than you describe. For example, I made specific note of redistribution of the sermon that would include this image. The Fair Use exemption has been restricted to face to face teaching and wouldn't cover webcasting or distribution of DVDs.

Did any of those cases involve a situation at all similar to the issue at hand?

Pretty darn close.

I may be entirely wrong, but I suspect that the copyright holders of the image would be overjoyed at the use, as they seem to me to love controversy and anything which will stimulate sales.

That is your guess, but how is this legally relevant? Is this really what you want to be telling folks?

Quite simply, some folks are very sensitive to criticism. Some folks who are hostile to the church might be particularly sensitive to criticism from the church and might be petty enough to cause an legal issue for the fun of it. Certainly someone like Bill Maher might and might do it for exactly the same publicity reasons you cite. Think how his audience would love to find another excuse to label Christians as hypocrites.

I think my initial advice was fairly softly stated. Most folks I speak with take a pragmatic view. How much more is it really going to add to have the image and what are the potential issues related to using that image are the factors to be weighed. In most cases, folks find a creative way to accomplish the same goal.

[CopyrightSolver]

I'm sorry this thread has taken the direction it has.

Agreed. We are both trying to offer some guidance.

[rjwalker]

ME: “I may be entirely wrong, but I suspect that the copyright holders of the image would be overjoyed at the use, as they seem to me to love controversy and anything which will stimulate sales.”

THEE: “That is your guess, but how is this legally relevant? Is this really what you want to be telling folks?

Good questions. The first is equally applicable, I believe, to your earlier comment: “I recommended an abundance of caution in this particular case, as the use of the work was intended to criticize its likely owners.”

There is no clear right or wrong answer to the initial question posed; reasonable people may disagree.

The likelihood of the copyright holders objecting is immaterial to the legal analysis, but I believe it is material to the ‘business’ decision as to which course to follow.

I practiced business law from the 70s to the 90s, and found that these "penumbral" issues - those at the intersection of law and business decision making to be among the most interesting and, as legal counsel, fraught with danger.

Let's take two hypothetical situations.

The first involves a clear violation of law and morality - thou shalt not steal, for example.

In advising on the applicability of that rule to a situation, I believe it would be immaterial to ask "is anyone going to complain?" \

In such a clear cut context, a violation is a violation. It doesn't matter who would notice or who would complain.

The second is this situation: maybe, down the road, a court would hold that the proposed action is a copyright violation, or maybe hold it is fair use. There are good faith arguments (I believe) for either position

Were a high visibility megachurch to consider the action, I would recommend that they consider the likelihood of being dragged into court.

Were the small plant church I do some AV work with (20-30 people a week) to similarly consider the action, I would also recommend that they consider the likelihood of being dragged into court, and, as a person with some life experience, suggest it would be pretty darned unlikely.

[rjwalker]

ME:>> Is there case law on the Religious Service Exemption supplanting the wider Fair Use exceptions for churches?

Thee:>>I never claimed that there was any such case law.

And I never said or implied that you did. The intro for this forum provides "If you answer a question, be sure to include a valid source for your answer."

The fairly interesting proposition that the 110(3) religious assembly "safe harbor" supplants applicability of the 107 Fair Use rules for churches was advanced in this thread.

I asked whether there is case authority for that proposition.

[CopyrightSolver]

Few churches I speak to are interested in testing hypothetical legal theories. Most I speak with are interested in avoiding legal issues altogether. Avoiding using copyrighted works that could result in unwanted legal activity is usually the best way to proceed for most churches.

[waynehoskins]

Mr. Walker, I know you stated initially in this thread that your intent was not to impugn the honor or integrity of our friends at Copyright Solver, but to me as a bystander, that's exactly what it looks like you've done intentionally from the start. I hope that's not your intent, but it reads that way. Let's all play nice here.

For me, as a church tech guy, I prefer to know, as I have been told, that rarely to we fall under "fair use" -- which might entail quoting a sentence or two from a work to comment on it, or use in higher education. The safe approach as I see it, then, is to presume that unless our use clearly falls under fair use, that it doesn't -- which means that do use it, we have to obtain permission or license from the copyright holder to do exactly what we plan to do.

[rjwalker]

Originally Posted by CopyrightSolver

Few churches I speak to are interested in testing hypothetical legal theories. Most I speak with are interested in avoiding legal issues altogether. Avoiding using copyrighted works that could result in unwanted legal activity is usually the best way to proceed for most churches.

Good point.

OTOH, when one is suggesting a "safe at any cost" approach, I believe one should be up front about it so that "clients can make informed decisions.

For example, the plant that I work with (similar to, perhaps, the outlier churches you admit exist among your clients) is semi-aggressively 'progressive.' I don't think it would serve them to simply give them the "safe" answer as if it were the answer.

And without some citation of authority that the Fair Use provisions wouldn't apply here, that they are "pre-empted" by the 110(3) safe harbor, I'd say that dismissing the Fair Use section of copyright law as "hypothetical" is less than enlightening.

If there is a hypothetical legal theory being advanced, I'd guess that it is your original position as to the interplay of 107 and 110.

Again, I may well be completely wrong as I am outside my area of expertize, (although I think I still have some skill at reading statutory law) which is why I asked if there is any legal precedent or case law for that proposition.

===
As an aside, perhaps you are feeling as if you have gotten into a pissing match with a skunk.... Even ex-attorney's "in recovery" can retain some sunk instincts.

We tend to believe that legal analysis requires close attention to sometimes subtle distinctions and exacting use of language.

[rjwalker]

Originally Posted by waynehoskins

Mr. Walker, I know you stated initially in this thread that your intent was not to impugn the honor or integrity of our friends at Copyright Solver, but to me as a bystander, that's exactly what it looks like you've done intentionally from the start. I hope that's not your intent, but it reads that way. Let's all play nice here.

I'm very sorry it looks that way.

But when a novel legal theory is set forth as some sort of definitive answer, and then the proponent of that theory ducks and weaves when asked to support it, well, I still draw no conclusions as to honor or integrity, but I also remain remain skeptical of the analysis put forth.

There is, of course, a scripture about not raising contention within the community; but there is also scripture about holding fellow Christians accountable.

Do you understand the issue I've raised concerning 110(3) as a safe harbor, and not as a pre-emption of the 107 Fair Use rules?

I suspect that it seems like some sort of mere nasty old guy is simply quibbling.

I believe it is a significant legal question which, when roused, needs to be put back to bed. Of course, if it isn't of any significance, I'm simply a nasty old guy.

One reason I believe this is important is that the idea that churches would be foreclosed from the protections of the Fair Use provisions because of the 110(3) safe harbor would be an alarming attack on the right of churches to be treated the same as other entities in such a context.

The safe approach as I see it, then, is to presume that unless our use clearly falls under fair use, that it doesn't --

I agree about taking the safe route, but I am concerned when questionable legal theory is advanced in support of a conclusion

[quote]I have been told, that rarely to we fall under "fair use" -- [/guote]

When I practiced law, it usually would have been easiest to give the safe answer, but I was trained to be sure the client understood the possibilities and grounds for concern so that the client could make the decision.

This forum asks that people support the views they provide.

I don't think I'm out of line asking that such request be honored.

Your mileage may vary.

[[Admin] danroth]

Okay, folks...we're gonna call it quits on this one.

The folks at CopyRight Solver have been good to us here at CMN, and are a valuable resource. They themselves will admit they aren't God, but I hope we all do that! Some may occasionally disagree, but I think perhaps this thread has completed its usefulness.

So, at the request of several folks (to be clear, none of the participants), we're going to close this one down.