Section 110 of the Copyright law says this is not infringement
 

I am not a lawyer but the language in section 110 of the US Copyright law seems straight forward. For those who've never actually read the law, Section 110 is on "Limitations on exclusive rights: Exemption of certain performances and displays."

It says:
"...the following are not infringements of copyright:"
...
(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
...

Can someone explain why, in the DVINFO FAQ here:
http://www.dvinfo.net/articles/busin...ghtfaq2.php#q6
the FAQ author seemingly contradicts section 110 of the US Copyright law in the answer to question 6?

Question 6:
I’m not charging any money for the work I’m doing, it’s for my church. Even when it’s broadcast, it’s serving God, and I receive nothing but blessings for my work.

Answer:
"Well... hope that God can provide a good attorney for you. Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to use copyrighted works....many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."

I understand the infringement if it's TV broadcast but the FAQ answer is written in blanket language and does not seem to limit the legal analysis to TV broadcast part of the scenario; thus the question here.

US Copyright Law http://www.copyright.gov/title17/92chap1.html#110

This is easy: Have your lawyer interpret your goals with respect to the section you have cited. Done.

You aren't performing it. You are recording it and making copies of it. It almost is clear and there are very few exceptions. Plus, the actual statute does not include the wording of any legal decisions based on it. Requires a lawyer, but the QandA cover it much more clearly.

I'm not a lawyer either, but performance of a work and redistribution or broadcast thereof are entirely different beasts, and that may be the difference. The way it looks to me on a brief look, including a song as part of your religious performance is allowed to help protect freedom of individual religious expression, but broadcasting it outside your place of worship or creating derivative works goes beyond that protection and is regarded as infringement. Maybe that's not right either, but that's the impression I get as a non-lawyer.

I think the law is open to interpretation and argument/debate/persuasion. Or sometimes people just break it and don't get into trouble for it.

Examples:

Microsoft got convicted of antitrust laws. But because their lawyers are good, they are able to tangle the case in appeals for years so that the government just strikes a deal with them for lesser punishment.

Wedding videographers use copyright music all the time, yet no one gets sues for it.

Behringer (audio company) gets away with blatant reverse engineering and trademark infringement, yet they don't get sued because it's expensive to sue them. Their lawyers will tie the case up in court for several years (literally).

2- I'm obviously not a lawyer here and I could be wrong. But I think the right approach here is to take a real-world look at this:

How likely are you going to be sued?

(In my opinion, you're not going to get sued.)

The FAQ question doesn't really cite a specific scenario. Seems each of us has a different idea of what is being done. I was thinking performance of a dramatico-musical work, others were thinking recording and rebroadcast.

The TV broadcast part of the FAQ question is not mentioned in section 110 (making it clear) and so it was not what my query was about. However, section 110 says performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly is not infringement.

Yet, the answer to the FAQ question makes the blanket statement "many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."

My point is that performing a dramatico-musical work at a place of worship is addressed by the law and declared to not be infringement. However, the FAQ on this topic says work of "religious value" is erroneously considered permissible and that the "The law doesn't look at issues this way."

So, I'm back to the point that the blanket statement in the FAQ:
"many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."
appears to be erroneous and not do the very thing it is trying to do.

I am not a lawyer either, but look at the exact wording of the citation of the law ... "in the course of services at a place of worship or other religious assembly is not infringement." I'd read that as saying that for this provision to be applicable the work in question must be a live performance (actors or musicians physically playing or performing something) being conducted as part of a religious service in a location that is used principally as a place of worship. I would understand that to mean your could use music from "Jesus Christ, Superstar," played by the organist or church band and sung by the choir and congregation, as part of your liturgy in the sanctuary of your church without obtaining a license. But you still can't record it, broadcast it, videotape it, or perform it publically outside the context of an actual worsjip service.

The law cite addresses public performance in a specific setting.

The FAQ is written for those of us who make film/video recordings as either a hobby or a proffession.

The FAQ is addressing those who would RECORD/BROADCAST such a performance.

Seems pretty clear to me.

Though I AM married to a lawyer... maybe it's rubbing off on me.

Actually, the FAQ examples don't refer to recording and broadcasting. The FAQ uses examples of creating a music video:
"if you used a song from “Jars of Clay”* in your Mormon musical video presentation"
Later the FAQ makes the "blanket" statement.

Section 110 doesn't say "live performance". It says performance. So, up to this point, I'm trying to reconcile
1) the example of the FAQ (musical video presentation) to the Law (a dramatico-musical performance)
2) the law cites it as not infringement
3) the FAQ statement asserting even "if the work is for religious value" it's infringement.

ummmm.... What was the question???

I don't see any ambiguity or conflict. If you want to take music and perform it (or maybe play it) in church (or whatever passes for church), you are good to go. If you want to record it, you better get it cleared, because recording is not performance. The performers are not violating any copyright, but the recordist is. How many ways can this be said?

And if you really htink you found a loophole, be prepared to defend it in court. Book publishers aggressively pursue churches who photocopy hymnals, and they win every time. They can sing the songs, they just can't photocopy the words.

Earnest.

The FAQ was created for, and exists ON an bulletin board created for and maintained BY people who record and or broadcast video/film for a living and as a hobby.

The law speaks SPECIFICALLY about PERFORMANCE issues. PERFORMANCE is a "Term of Art" in legaleze. It is decidedly different from recording or broadcasting.

But like I said, I'm married to an Intellectual Property/Copyright attorney. I can ALMOST always get free legal advice. Paul Tauger is also an IP attorney who drops in on the board, and offers the most excellent advice and insights available to the members in general terms.

Don't take my word for it, GO HIRE AN ATTORNEY. Consider it paying for peace of mind.

I already have it.

I have peace of mind. I'm trying to become literate on the subject giving rational logic and intellectually honest arguments, especially to young people who'd just as soon infringe as they would blow their nose.

I've approached this as I would lighting, mic'ing or whatever. I brought the subject up here (where I knew there were experts) after months of reading on the topic, searching various postings (here and elsewhere), and then ultimately coming upon the FAQ where I read from a noted authority:
1) "Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to use copyrighted works. "
2) "many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."

However, according to section 110:
1) There are conditions under which one can "use" copyrighted works
2) There are conditions when the work is for religious (and others) values that there is no foul

If A is asserted to be infringement because of B and B is found to be untrue, that doesn't mean that A is not infringement. It only means B is not the reason. My question was to seek out the reason C from the copyright law that shows A is infringement.

So if the FAQ is wrong on it's reasons for it's answer to question 6 when something is infringement, then it sheds doubt on the veracity of it's assertions on the other infringement examples as well as the non-infringement in question 10. I should think we'd all want a good FAQ on this topic.

I'm not married to an attorney but I'm glad Richard is and has contributed to this thread. Revealing that Performance is a Term of Art was very helpful and led me to find the legal definition of Performance in the Copyright Law (section 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.

So, in search of the reasons why the FAQ illustration is infringement, the refined question is:

Is the FAQ example of using a song from “________” in a Mormon musical video presentation a "performance in the course of services at a place of worship" that is exempted by section 110?

Question 6 in the FAQ explicitly references use of copyright works in music videos, synching, and broadcasting. It seems that the remainder of us interpret the law such that a PERFORMANCE, if done as part of a genuine religious worship service, is not infringement. But a broadcast of same, a music video, or other such synching of copyright music to your own video would most definitely be infringement -- and it would be irrelevant whether the original work was religiously oriented or not. That's clearly what Question 6 is talking about.

Does that rewording take care of the lingering doubts?

With respect to the OP, Section 110 applies to performance, which is a different reserved right from the right to make copies.


The US is a common law jurisdiction, so the law is interpretted -- by judges, but not by laypeople.

And sometimes they do.

The US Constitution originally reserved, expressly, certain rights to white men. The US Constitution was subsequently amended. However, you are right to this extent: the Constitution is, by design, intended to be construed and the judicial system is the entity designated to perform that construction. Because the Supreme Court does not have original jurisdiction (with some minor exceptions), it can only accept cases on appeal, meaning that a specific fact pattern has given rise to a constitutional question. As a result, the meanings afforded provisions in the Constitution are constantly being reviewed and refined. The fundamental conceptions, however, are not.

As you noted, sometimes the law gets broken and the law breakers get away with it.

An alternative view is that the Justice Department is part of the Executive Branch, and Microsoft is a heavy contributor to politicians.

How do you know?

I'm unfamiliar with what you're referring to. Reverse engineering is not illegal. Trademark infringement is, and I routinely sue companies a lot bigger than Behringer when my clients' marks are infringed. Infringement actions are usually tried in federal court where, depending on jurisdiction, a case can take from 12 to 24 months to come to trial. The length of time is dependent on the court's docket, not on "lawyers [who] will tie up the case."

Obviously.

You are confusing questions of legality with risk assessment -- that's comparing apples and oranges. Risk assessment is simply a business judgment -- my clients make risk assessments all the time. However, in order to evaluate the calculus of risk, they need to be fully informed.

And your opinion is based on . . . what?

For example, did you know that most District Court decisions are not reported, meaning that lawyers cannot go on line and say, with any certainty (and as you did), that no wedding videographer has ever been sued for copyright infringement. For that matter, I'll bet you also don't know why businesses sue. It's not to collect damages. Businesses sue for infringement when the defendant is hurting profitability, or when they wish to send a message to potential large scale infringers that they will not tolerate usurpation of intellectual property rights (think RIAA), or when they wish their competitors to know that they are aggressive in addressing infringement. Where do you think wedding videographers fit in this picture?

I'm an IP attorney, and I can't say, with certainty, that wedding videographers haven't been sued and, more to the point, that they won't be sued.

Sorry. You're opinion is uninformed, and an uninformed opinion is of little value.

"Public performance" is a term of art, defined in the Copyright Act. Section 110 is, probably, broad enough to cover playing a video or film as part of a church service (that's public performance). I've never researched the case law that's addressed Section 110 (assuming that there is any at all). Making a video of a public performance, whether the underlying material is presented pursuant to license or is defined as non-infringing under Section 110, is still making an unauthorized copy, which is a separate reserved right.

I'll have to take a look at the FAQ and see what example is given.

The law cites "performance" as non-infringement. As an example of a statue in which recording is defined as non-infringement, take a look at the AHRA.

With respect to recording, the FAQ is correct.