Tuesday, March 11, 2014
Carolyn Homer Thomas, Quinn Emanuel Urquhart Oliver, has published The Copyright Act's Licensing Exemption for Religious Performances of Religious Works Is Unconstitutional, at 63 DePaul Law Review 49 (2013). Here is the abstract.
Copyright Law grants an exclusive right of public performance to copyright owners. 17 U.S.C. § 110(3) exempts religious performances from copyright’s licensing requirements. This article comprehensively addresses the legislative history of this religious exemption, then analyzes the exemption under modern Establishment Clause jurisprudence.
Under Section 110(3), dramatic works, even when performed for-profit and with paid performers, do not need a license if the performance is sufficiently “religious.” This is a broader exemption then those granted to other non-profit organizations under 17 U.S.C. § 110. Because the § 110(3) exemption does not alleviate an exceptional burden on religious exercise, and because it imposes a significant burden on content creators, it does not meet Cutter v. Wilkinson’s standards for permissible religious accommodations. Furthermore, because the statute requires courts to evaluate the religious character of works and services, it necessitates impermissible entanglement. The religious exemption is unconstitutional.
Download the article from SSRN at the link.