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Dan Tolbertson October 12th, 2004 07:44 PM

Live Music
 
I am working on a project for our church and am concerned with copyright laws. Is it okay to tape a band live that plays at the church even though they are playing a modern (and I presume copyrighted) Christian rock song?

I would not be for profit but are considering handing out a DVD that has information and video about our church and worship services to new members and visitors.

Douglas Spotted Eagle October 13th, 2004 09:25 PM

No, it is not OK. Rather, you can tape them all you want. You can even watch it, listen to it, and talk about it. You could likely even use it in very specific educational circumstances.
But no way could you replicate it, give it away, sell it, trade it, stream it without violating the law.
http://www.vasst.com/dvdproducts/caveats_copyright.htm will help you understand more of this.
On the whole, this isn't as difficult a subject as many folks make it to be....Just think of Intellectual Property as tangible property. For the most part, it's not that different. Someone owns it.

Paul Tauger October 14th, 2004 05:54 PM

Re: Live Music
 
Quote:

Originally posted by Dan Tolbertson : I am working on a project for our church and am concerned with copyright laws. Is it okay to tape a band live that plays at the church even though they are playing a modern (and I presume copyrighted) Christian rock song?

I would not be for profit but are considering handing out a DVD that has information and video about our church and worship services to new members and visitors.
Standard disclaimer: I am not your lawyer, you are not my client, and I can not and do not provide legal advice to non-clients. The following is for general discussion puposes, only, and should not be relied upon for any purpose. For legal advice, consult your attorney.


There are two separate legal concerns, here, one involving copyright and the other involving right of publicity.

With respect to copyright, you can _not_ make a recording (including as a video soundtrack) of a copyright-protected work without permission; the act of recording constitutes making an unauthorized copy and is precluded by the U.S. copyright law. If the works are protected, then you must obtain the necessary license.

The band may or may not have rights in, or a license to, the work they're performing. There's a rights limitation in the copyright act, 17 U.S.C. Sec. 110(2)(D)(3), for performance of non-dramatic musical works at a religious service. However, that limitation does not apply to the right to make copies, nor do most performance licenses include that right. Accordingly, unless the music (including the arrangement) is in the public domain, you may not record it without infringing copyright. If, however, it is in the public domain, e.g. a common hymn that is out of copyright, and there are no additional protectable rights in the arrangement (and there usually are), then you may record it and distribute it as you see fit.

There are fair use exceptions to copyright infringement. However, based on the very limited description you've provided, it seems unlikely that any would apply to what you propose to do. Douglas Spotted Tail mentioned educational use, which is one of the recognized fair use exceptions. However, educational fair use is evaluated against very specific and narrowly-construed criteria -- merely saying, "this is educational" will not result in a determination that your DVD is fair use. Note, as well, that fair use is an equitable doctrine, i.e. the judge will decide, is fact-specific, i.e. it's decided on a case-by-case basis, and is a defense to copyright infringement, meaning that you will not know whether what you're doing is fair use until you are sued, raise the defense, and have a judge decide in your favor.

With respect to right of publicity, many states preclude using a person's likeness, name or voice for commercial and/or advertising purposes without permission. As a matter of law, church fund-raising and publicity are considered commercial speech. Accordingly, you'd need to get permission from the band members, AND any parishoners who are recognizable, to use their images in the DVD which you've described. You might be able to obtain necessary parishioner consents by default, e.g. by putting a notice in the program, or posting a prominent sign at the entrance of the church. You should, however, obtain express, i.e. written, consent from the band members (and, possibly, from the pastor or minister, depending on what his employment contract provides).

Note, too, that whether or not the institution in question is a church, whether or not the DVD is given away or sold, and whether or not it is for profit is, for all intents and purposes, irrelevant to this discussion.

Dan Tolbertson October 14th, 2004 06:28 PM

Thanks Guys, This helped me quite a bit.


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