Re: Differing? copyright treatments of copyrighted information quoted in a sermon

I was refraining from chiming in on this one; but I saw some misstatements of law in the two previous responses, so I thought I'd better correct them:

>>> russjohnson[_at_]frontiernet.net 01/23/03 06:04PM >>> What are the differences (if any) in the treatment of copyrighted information (from a book, etc.) quoted in a sermon in the following contexts: 1. The sermon is preached in a church worship service. <<<<<

Section 110(3) applies. It exempts performance of a nondramatic literary or musical work "in the course of services at a place of worship or other religious assembly."

In response to 4us2b1[_at_]cox.net, the fact that the sermon is not "fixed" is irrelevant. Copyright grants a right of public performance in the works being quoted in the sermon. It is 110(3) that exempts the spoken sermon from the public performance right.

>>>>>

   2. The sermon audio is recorded onto audio cassettes or audio (or MP3) CDs:

1. for giving away
2. for sale
3. The sermon audio is broadcast or made available for download via the Internet. <<<<<

Re 2.a. and 3. If the portion quoted is a small portion of the original, this would probably qualify as a fair use. It's for a noncommercial purpose (I think whatever donations are made to the church are an indirect benefit at best, and not likely to be increased by the particular quotes chosen), and it is not likely to have an effect on the market for the work.

But 2.b., and 3 (if it is broadcast on a commercial station), now the sermon has a commercial purpose as well as a noncommercial one. That's not decisive, but it makes it less likely to be a fair use. Still, if the quote is a small portion of the original work, this might qualify.

In response to johnl[_at_]iecc.com, Section 110(4) definitely does NOT exempt this activity. Section 110(4) is an exemption to the right of public performance only. It expressly does NOT apply to transmissions, so 3. above is not covered; and by fixing the quotation in an audio cassette or CD, the right of reproduction is implicated, for which Section 110(4) provides no defense.

In response to 4us2b1[_at_]cox.net, who says that "permission to use a quotation may not be withheld provided attribution is applied," that statement is simply incorrect. Attribution may show good faith, and may as a practical matter make it more likely that something will be held to be a fair use, but the fact that a quote is attributed does not automatically give one blanket permisison to use it.

>>>>>

Does DMCA effect this?
<<<<<

Typo: In this context, "affect" is the correct word, not "effect." [Forgive me for being a strict grammarian.] Not that I can think of.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Mon Jan 27 2003 - 19:42:47 GMT