What wins: Freedom of religion or copyright?
While feeling patriotic this afternoon, the song "God Bless America" popped into my head. As I didn't remember all the lyrics, I did a search and the first set of lyrics I came upon:
http://www.scoutsongs.com/lyrics/godblessamerica.html
had a rather explicit copyright notice at the top. It struck me as I thought about posting it to a page, whether or not I could quote the song without permission from the copyright holder.
The thing of it is, the song explicitly states that it is a prayer, and then directs that prayer to God. So it seems that using it should be a right afforded to us under the free exercise of religion clause of the first amendment.
So I wonder, what takes precedence? A person's legitimate claim to ownership of their creative work, or another person's free exercise of religion?
6 comments
[ 2.3 ms ] story [ 16.7 ms ] thread(See http://edition.cnn.com/2011/12/11/opinion/greene-berlin/inde... )
There's no freedom of religion issue here. Your religious principles don't require you to sing that song, do they?
If they do, I'm curious how the text of a Jewish songwriter, concerning Armistice Day, became a part of your religion. Did your religion start after 1938, or change its tenets?
FWIW, there is a religious exception in copyright law. Sect. 110[3] says "(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;" is not an infringement of copyright.
What you described does not fit that category.
Since the words are on Wikipedia, you can probably not worry about it.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech"
Belief in God is a pretty big establishment of many religions, and the free exercise of such an establishment includes the recitation of such prayers asking for his help. In as much, I believe there is a freedom of religion issue here and I do not understand the amendment to indicate that religious requirement to be necessary for protection under the first amendment.
My curiosity lies more with your 4th paragraph. Has anyone ever raised a constitutional argument for any use of a copyrighted work outside of the scope you have mentioned, which looks to be very clear that it only applies to religious gatherings, or has anyone questioned what constitutes a "place of worship" in our modern age? Is it completely beyond reason that someone could argue that the internet is their "place of worship"? Many people attend all sorts of religious ceremonies online. And their right to do that is I believe protected by the first amendment and I don't believe arguing peoples beliefs are really ever deserving of an argument.
[branching off to address the 3rd paragraph and question
To your other question that seems slightly off topic but seemed provoking, the reason these words became spiritually meaningful to me is that they describe a time in our nation's history when we were fighting a war that the American people had very little say in, in a foreign land and the best they could do was pray to God to see the country that they loved through.
There are a lot of things going on in and outside this country that most people can't do anything about more than pay attention to what's happening and hoping (/praying) for the best. So it seemed relatable to the situation we are in now.
And not that it's really any of your business but yes, my religion started after 1938, in fact it started around 2007 when I became disillusioned with the tenets of my religion, could not find a religion without the mandatory governance of law and ritual and cultivated my own belief system given my favorite teachings of many of the principle thinkers to create a system of belief for myself. Is that a problem?
end 3rd paragraph response branch]
However, if people usually aren't arrested for yelling at 3am, and it's only because you are yelling out Bible verses that you were arrested, then arresting you would be unconstitutional.
As another example, some religions require that members wear headgear. See http://en.wikipedia.org/wiki/Kippah#Kippot_in_secular_law for some of the laws regarding the wearing of yarmulke. In general, if a religious use is not singled out and there's no good safety or security reason to ban headgear, then it cannot be banned.
Consider also one of the court cases I once read, about a lawyer who was also a priest. He wanted to wear his clerical clothing while in the courtroom. The judge refused it, on the grounds that it may unduly sway the jury. This decision was appealed and upheld, as I recall.
Like I say, these decisions are often a matter of tension between different needs.
So let's look at the copyright issue again. The copyright law does not place extra copyright restrictions on religious practice. Thus, it is not directly abridging the free exercise of religion. Still, as you point out, it can incidentally place some restrictions on religious practices. But as I pointed out, the law specifically grants religious services extra freedoms that the general public do not have, so you would have to show that there is still a serious restriction.
Suppose your specific case were taken to court. The judge would look to understand the tensions involved: is your ability to practice your religion being abridged by the prohibition of using copyrighted material outside of religious services? How serious is that abridgement? What acceptable alternatives exist?
For example, if you were in the Church of Irving Berlin, with 400 other members, then you would likely have a stronger case than if you were one of the three remaining Shakers, whose religious practices haven't changed much in the last century. (And that's why I asked about your religion, because it does have bearing to the question.)
You say that it's "spiritually meaningful" to you. However, there are any number of things which can be "spiritually meaningful", many of which run afoul of the law. "Spiritually meaningful" by itself cannot be a good guideline.
As an interesting, if only somewhat relevant example, one of the Five Articles of Faith that baptized Sikhs are supposed to have with them at all times is a kirpan; a short dagger. Sikhs follow a warrior faith, and are charged to defend the oppressed and persecuted. But wearing a dagger is illegal in some places. See http://en.wikipedia.org/wiki/Kirpan#Legality for details.
If you can convince others to join in your faith, where the faith requires you to violate copyright law, then perhaps you can get some legal judgment. But as a single member of the faith you're not going to get a favorable judgment given the reasons you listed. Again, the tension is that people can have many different sorts of spiritually meaningful beliefs. Someone may truly believe that it's best to go around at 3am to wake people up, as a way to spread knowledge of their faith.
Do we allow all aspects of all faith to trump all laws? That makes no sense.
> "Has anyone ever raised a constitutional argument for any use of a copyrighted work outside of the scope you have mentioned"
I don't know the this (or really any) area law. A quick search finds http://en.wikipedia.or...
My question stemmed from my misunderstanding of the law and a curiousness about how my knowledge gaps might be exploitable (though not as much for harm but rather protection). Thank you for taking the time to give me such a thorough answer.
I was somewhat apprehensive to post my first question to HN, (especially one that even mentioned religion) but you definitely gave me the best response I could have hoped for. I definitely owe you one. Thank you.
HN commenters are indeed a fickle and random group.
Cheers.