## Facts

- Austris A. Wihtol composed the hymn “My God and I” and held registered U.S. copyrights covering choral and later solo/piano versions.
- The song generated significant royalty income for Wihtol, including from licensing special arrangements, and was widely performed in churches and schools.
- Nelson E. Crow served as vocal director for the Clarinda, Iowa, School District and as choir director/organist for the First Methodist Church of Clarinda, for which he was compensated.
- In 1958–1959, Crow made his own arrangement of “My God and I,” distributed copies of that arrangement to choir members, and used it in school and/or church performances.
- Crow did not obtain permission to prepare or copy the arrangement; after being contacted by Wihtol, Crow sent the copies he had made to Wihtol.
- Wihtol and affiliated business entities sued Crow, the church, and the school district in federal court seeking injunctive relief and damages for copyright infringement.
- The district court dismissed the complaint, found fair use, and awarded defendants costs and attorneys’ fees.
- Wihtol appealed.

## Issues

1. Whether preparing and distributing an unlicensed arrangement that copies all or substantially all of a copyrighted song for school and church use constitutes fair use.
2. Whether a defendant’s lack of intent to infringe can convert otherwise infringing wholesale copying into fair use.

## Decision

- The Eighth Circuit reversed the district court’s judgment.
- The court held that Crow’s unlicensed arrangement and copying infringed the copyright and did not qualify as fair use.
- The court rejected the view that copying all or substantially all of a copyrighted song can be fair use merely because the copier lacked intent to infringe.
- The case was remanded for further proceedings consistent with the finding of infringement.

## Legal Principles

- Fair use does not extend to copying all, or substantially all, of a copyrighted musical composition simply because the defendant acted in good faith or without intent to infringe.
- Educational or religious setting does not, by itself, justify extensive copying that substitutes for authorized copies or licensed arrangements.
- Fair use analysis turns on objective features of the use, including the amount taken and its relation to the copyright owner’s protected market, rather than subjective innocence.

## Conclusion

The Eighth Circuit held that an unlicensed arrangement and distribution of substantially an entire copyrighted song for school and church performances was infringement, and that good faith or lack of intent to infringe did not make such wholesale copying fair use.


Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962)