Key point 9-05.07. The Copyright Act gives copyright owners the following exclusive rights—reproduction, adaptation, distribution, performance, and display. Anyone who violates one or more of these exclusive rights commits copyright infringement.
Key point 9-05.09. A copyrighted musical or dramatico-musical work of a religious nature may be performed or displayed in the course or services at a place of religious worship or other religious assembly. This is an exception to the copyright owner’s exclusive right to publicly perform the work.
* A Michigan court ruled that a church had to pay $1.6 million in damages for recording a soloist’s performance during a religious service without her permission and then selling CDs of the service to church members and the general public. It is common for churches to make audio and video recordings of services. A recent case shows how this practice can lead to unexpected liability. A religious denomination (the "church") recorded a female vocalist ("Sherri") singing a featured solo with a choir during a music celebration. The tape of the performance was made into a compact disc (CD) that was sold to church members and to the general public. The soloist alleged that the recording was made without her knowledge or consent. Further, the CD erroneously identified another woman as the soloist. Sherri sued the church, claiming that it had "negligently misappropriated" her voice. A jury agreed, and awarded her monetary damages of $1,600,000! The church immediately appealed.
An appeals court affirmed the trial court’s decision in favor of Sherri. It concluded that the church’s failure to obtain her permission to record and distribute her solo was a negligent act. The church insisted that it could not be liable to Sherri on the basis of negligence, since it owed no "duty" to her. In general, persons or organizations cannot be negligent unless they owe a "duty of care" to the victim of their negligence. The court noted that a duty is simply an obligation that one party has to another to avoid negligent or careless conduct. In determining whether a duty exists, courts consider several factors, including "the (1) foreseeability of the harm, (2) degree of certainty of injury, (3) existence of a relationship between the parties involved, (4) closeness of connection between the conduct and injury, (5) moral blame attached to the conduct, (6) policy of preventing future harm, and (7) the burdens and consequences of imposing a duty and the resulting liability for breach."
After examining these factors, the court concluded that the church did owe a duty to Sherri to avoid negligent conduct. It observed, "There was a long-standing relationship between the church and Sherri, who had been a life-long member of the church. Further, it was foreseeable that Sherri would be harmed from the unauthorized recording of her voice. We also believe that imposing a duty under circumstances such as these would deter future conduct of this type, and the burden of imposing such a duty would be slight. Therefore, we reject the church’s argument that it did not owe a duty to Sherri."
The court did rule that it was not clear how the jury determined the amount of damages, and it remanded the case back to the trial court to explain more fully the basis for the large amount of damages.
Application. What is the relevance of this case to church leaders? Consider the following points.
1. While this case involved a music celebration sponsored by a religious denomination that "commercially" sold the CDs it made of the event, the same principles apply to a local church that records and later sells music that is performed during religious services. The risk is increased when the church records, without authorization, music performed by guest musicians who are widely known and who depend on their music for their livelihood.
2. The Copyright Act specifies that one of the "exclusive rights" of a copyright owner is the right to publicly perform his or her work. Any violation of a copyright owner’s exclusive rights constitutes copyright infringement. However, the Copyright Act exempts the public performance of religious music in the course of a religious service from this rule. It is for this reason that musicians can perform vocal or instrumental solos of copyrighted music during worship services, and that a choir or the congregation itself can sing copyrighted music. However, this limited exception to copyright infringement does not apply to audio or video recordings that are made of the service.
3. Churches can purchase, at nominal cost, an annual "Church Copyright License" from Christian Copyright Licensing, Inc. ("CCLI"). This license allows churches to record worship services, with some conditions. Information on the CCLI licenses can be obtained from its website (www.ccli.com).
4. Note that this case was not a copyright infringement case. Rather, Sherri sued the church for the unauthorized recording and sale of a solo she performed during a worship service. This theory of liability is completely separate from copyright infringement. The risk of liability for unauthorized recording can be reduced by taking a few precautions: (1) If your church plans on recording a service in which a featured guest soloist will perform, be sure to ask the soloist in advance if he or she has any objections to the church recording and distributing audio or video tapes of the service. If the soloist consents, this should be put in writing to reduce any misunderstandings that may arise later. The same is true of a musical group that performs during a worship service. (2) If a soloist or group does not consent to the recording of music, then the church must "turn off" the recording equipment during the special music (or later remove the special music through editing). (3) The risk of liability for the unauthorized recording of church members’ solos is remote, since members are familiar with their church’s recording practices and presumably consent to their solos being recorded. This is especially true of members who perform frequently and without objection to the church’s recording practice. To eliminate any risk, church leaders may want to consider adopting a policy that describes the church’s recording procedures, and that is made available to members. Edwards v. Church of God in Christ, 2002 WL 393577 (Mich. App. 2002).
© Copyright 2002 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m36 c0302
