Key point 9-05.09. A copyrighted musical or dramatico-musical work of a religious nature may be performed or displayed in the course of 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 federal district court in Alabama ruled that the "religious services" exemption to copyright infringement, which permits the performance of copyrighted religious music in the course of religious services, did not apply to broadcasts of those services. A number of music publishers, including some that publish religious music, granted a non-exclusive right to license public performances of their copyrighted works to the American Society of Composers, Authors and Publishers ("ASCAP"). Several of these publishers sued a radio station owner claiming that he violated the copyright law by playing their copyrighted musical compositions on the radio without permission. The songs that were played without permission included "His Hand In Mine," "More Than Wonderful," and "Above All."
The station owner claimed that the "religious services exemption" allowed him to broadcast some of the copyrighted compositions because they were performed during church services. Section 110 of the Copyright Act creates an exemption to copyright infringement for the "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."
The court observed:
The critical language here is "at a place of worship or other religious assembly"; the exception says nothing about broadcasts in general and, more specifically, broadcasts from a place of worship. True, it could be argued the exemption should apply where, although the songs are being broadcast, there is an audience at the place of worship; in short, the exemption, it could be argued, should apply because the conditions to the exemption have been satisfied. Thus, it could be argued, the exemption should apply to all simultaneous performances as long as one of the performances falls within the exemption.
However, the law is clear that radio broadcasting is itself a separate public performance which can constitute an infringement. Thus, the mere fact that a radio broadcast of a song is simultaneous with the playing of the song at a place of worship does not mean that broadcast falls within the religious exemption; playing to the audience at the place of worship and playing to a broadcast audience are separate public performances …. A singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance; … a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers.
This understanding of the religious exemption is supported by its legislative history, which provides that the exemption does "not extend to religious broadcasts or other transmissions to the public at large, even where the transmissions were sent from the place of worship." H. Rep. No. 94-1476.
As a result, the court concluded that the religious exemption did not allow the radio station owner "to broadcast copyrighted songs, performed during church services, without authorization, since such broadcasts are not 'at a place of worship.'
Application. Several churches have their worship services broadcast either on the radio or television. This case clarifies that the Copyright Act's religious services exemption, which permits the performance of religious music "in the course of services at a place of worship or other religious assembly," does not apply to radio broadcasts of worship services. While the performance of copyrighted religious music at the place of religious assembly would be protected by the religious services exemption, this is not true for broadcasts of religious services in which copyrighted music is performed since "the law is clear that radio broadcasting is itself a separate public performance which can constitute an infringement."
What about recordings of worship services in which copyrighted music is performed? Many churches make audio or video recordings of their services available for a nominal charge. Do these recordings constitute copyright infringement? Must churches obtain permission to record services in which copyrighted music is performed? The court did not address this question, but the answer is yes. The key point is that the religious services exemption is limited to the performance of religious music in the course of services at a place of worship or other religious assembly. Audio and video recordings do not constitute performances, and so the religious services exemption does not apply. Churches that record worship services in which copyrighted music is performed should obtain authorization to do so. One option is to purchase an annual license from Christian Copyright Licensing, Inc., of Portland, Oregon. A CCLI license will enable your church to legally make audio and video recordings of your services. Some conditions apply, which are described in the CCLI contract. Other licensing options are also available. Simpleville Music v. Mizell, 451 F.Supp.2d 1293 (M.D. Ala. 2006).