Display picture of book (cover)

[TimW]

Pastor is preaching on (actually, against) Stephen Hawking's "Grand Design" book this Sunday. Have an idea for graphic which shows a picture of the book cover, with a calculator laying on top of it (calculator is part of the sermon illustration also).

The calculator will partially obscure the book title and Stephen Hawking's name.

Do we have a problem with doing something like this?

Thanks in advance,
-Tim

[CopyrightSolver]

While the religious service exemption would allow you to display an image, there are a few problems with what you are doing.

First, in order to make the slide you describe, you will need to make a copy of the book cover which is an exclusive right of the copyright owner.

Second, in order to make the slide you describe, you will be modifying the image which is creating a derivative work, another exclusive right of the copyright owner.

Your pastor can hold up a purchased copy of the book and show it to the audience as section 109(c) of US Copyright Law allows for public displays of legally purchased copyrighted works, which would include the book cover.

Now if you are looking to put this sermon online, you have another issue: distribution, another exclusive right of a copyright owner.

Considering that this is a message speaking out of the book, even more care must be exerted. The risk of legal action is greater if the use involves criticism of the copyright owner.

[TimW]

Thanks for your "ruling" on this. Suspected that might be the case. We have some alternative graphic ideas that will be fine, just not the same impact.

-Tim

[rjwalker]

FWIW, I'm a bit skeptical of the earlier response given to this question.

Note, I left the practice of law in 1992 and did not practice at all in the copyright area. Also, copyright law was significantly revised since I was in law school. It is a subject I've had some intellectual and practical (as a practicing creator of copyrightable material) interest in.

My skepticism arises from the omission of discussion of the Fair Use doctrine and the factors involved in a Fair Use analysis as applied to the question.

The response initially focuses on the reproduction of the cover suggesting that such reproduction is some special factor in the analysis.

And yet, such reproduction is specifically mentioned and contemplated in the Fair Use provisions of US copyright law:

"the fair use of a copyrighted work, including such use by reproduction in copies ...." Section 107

Perhaps the most notable feature of the Fair Use provisions is that there are no bright white lines or safe harbor provisions - applicability of the Fair Use provisions is always a craps shoot. (I.e., mainline denominations, beware! )

Regarding the opening post's question:

The (i) intended non-commercial nature of the use, (ii) the use of it as part of a criticism and comment, and, arguably, (iii) use in a teaching (can a sermon not be "a teaching?") and (iv) the fact that part of the cover is obscured are, to me, all factors which support application of the Fair Use exception to the copyright in the book's cover.

I repeat, there are few slam dunks in this area of law, and I claim no expertize here.


Perhaps revealing my legal training and "chops:" the author of the prior analysis seems to be connected with an enterprise which apparently deals with obtaining copyright permissions for churches (and presumably earns no fee when no permission is needed*) and the founder's educational background is identified at the company's website as "MS Education" (and in disclosing the staff's expertize, is silent as to any legal training or practice before the bar.)

While not dispositive, I believe these factors might be of significance in evaluating that discussion

Note that is likely the author of that piece knows more about at least some areas of current copyright law and practice, and I repeat that I have been long retired from the practice of law and didn't practice in this area. However, note also I don't believe I have lost all my practical ability to read statutes with a certain degree of accuracy and insight.

(FWIW, had the question arisen when I was running the media ministry at my fairly conservative middle class main stream church, I would likely have said "don't sweat it."

OTOH, has I been with a high profile mega-church, I'd have at least spent more time refreshing my knowledge, or even sent them off to church counsel for a paid opinion!)

================
* I do not want or intend to impugn the honor or integrity of the prior commenter - it is my experience that we all, everyone of us, tend to develop views and stances which are unconsciously affected by our commercial interests.

For example, although I no longer practice law, I still feel affiliated with those who do, and it is entirely possible that my views herein have been affected in part by my perception that a non-lawyer has crossed "the line."

[CopyrightSolver]

The Fair Use doctrine as described above could apply to pretty much any non-commercial use of copyright. However, settled law has provided a far more narrow definition than the one given above.

The Religious Service Exemption was codified at the same time as the Fair Use Exemption. If the provisions of the latter were as described above, there would be absolutely no need for the former.

Several of my clients thought that they were using a work under Fair Use, only to end up making settlement payments to copyright owners later.

As I stated in my original post, I recommended an abundance of caution in this particular case, as the use of the work was intended to criticize its likely owners.

It is fine to be "skeptical", but I would caution about glibly telling folks, "don't sweat it". I have far too many clients who have been given such advice and regretted it.

[CopyrightSolver]

I feel the need to defend myself. Despite the above commenter's claim that he is not impugning my honor and integrity, he is stating I am " connected with an enterprise which apparently deals with obtaining copyright permissions for churches (and presumably earns no fee when no permission is needed*) and the founder's educational background is identified at the company's website as "MS Education". In fact, he is impugning my honor and integrity, which is both unfair and unfortunate.

First of all, CCS has over 50 years combined experience in copyright administration for the churches and Christian publishers.

Second of all, we have an expert attorney on staff with 20 years experience in copyright issues.

Finally, while it is true that the founder of the company has an MS in Education, I am not she and she is not our legal counsel.

I won't characterize your legal analysis, but your analysis of me and my company is based on incomplete information and incorrect assumptions.

[rjwalker]

>>but your analysis of me and my company is based on incomplete information and incorrect assumptions.

Apparently so.

My "analysis" was based on the information available to me from your website.

No assumptions were killed in the course of my analysis - I was clear as to where my information came from and the extent to which your organization disclosed its sources of expertize.

[prochlea]

On a similar note - What if our pastor just wants to show a picture of the book? There would be no graphic editing or anything, just taking a jpeg of the book cover off the web, and projecting it. Is there any concern with doing that?

[CopyrightSolver]

I think we are both trying to help folks make an informed decision.

[CopyrightSolver]

"My "analysis" was based on the information available to me from your website."

Well kinda, but not really. You made a bunch of assumptions based on the information that you saw (such as I was the person with the MS in Education) and made wrong assumptions based on what you didn't see (such as your incorrect assumption we had no lawyers on staff).

You took a little bit of information and then made several incorrect assumptions. Perhaps in the future, you should be more sure of your facts before tainting the character of those who disagree with your analysis.

[rjwalker]

Originally Posted by CopyrightSolver

The Fair Use doctrine as described above could apply to pretty much any non-commercial use of copyright. However, settled law has provided a far more narrow definition than the one given above.

The Religious Service Exemption was codified at the same time as the Fair Use Exemption. If the provisions of the latter were as described above, there would be absolutely no need for the former.

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

Again, I do not claim any actual practice or expertize in this area. However, it seems to me that the "Religious Service Exemption" 110(3) is neither written nor intended to replace or supplant the Fair Use provisions of section 107.*

It strikes me that the 110(3) provision is simply a safe harbor provision, in my mind countering the argument that 107's Fair Use eliminates the "need for" the 110(3) specific measures.

And it strikes me as unlikely that congress would have intended to narrow the exceptions available to churches from those available to the general public.

But, I do not have ready access to the case law. If there is case law on point, I would be very interested in reading it and I believe such cases would be of importance to readers of the forum.

[immaterial paragraph deleted]

Several of my clients thought that they were using a work under Fair Use, only to end up making settlement payments to copyright owners later.

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

It is fine to be "skeptical", but I would caution about glibly telling folks, "don't sweat it". I have far too many clients who have been given such advice and regretted it.

I thought I had made it clear that my hypothetical comment "don't sweat it" would have been in a very restricted case - any implication that I was making to all in all situations is, in my opinion, a disservice to those who might read this thread.

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.

I may be entirely wrong about that, but so long as we are speculating as to how they might react, that is one possible I believe worth considering.

For example, it may be that copyright holders have it in for churches to the extent that they would use a marginal claim to attack a church's finances, and that is not an insignificant concern.

[rjwalker]

Originally Posted by prochlea

On a similar note - What if our pastor just wants to show a picture of the book? There would be no graphic editing or anything, just taking a jpeg of the book cover off the web, and projecting it. Is there any concern with doing that?

Section 110(3) gives an exception for "display of a work, in the course of services at a place of worship or other religious assembly;"

Section 101 defines display as "to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process ...."

Looks OK to me, but again, I no longer practice law and never developed any expertize in this area.