Pastor, Church & Law

§ 9.05.05

---

Key point 9-05.05. 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.

Section 110(3) of the Copyright Act specifies that 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" is not an infringement of copyright. Performance of a nondramatic literary work means reading from a book or periodical in a nondramatic manner. Thus, for example, a copyrighted translation of the Bible can be quoted publicly in the course of religious services, as can any book or periodical of a religious nature.

Without the exception contained in section 110, such readings might constitute copyright infringement since one of a copyright owner's exclusive rights is the right to perform his work publicly. Similarly, a copyrighted musical work of a religious nature can be performed in the course of services at a place of worship or other religious assembly. Therefore copyrighted hymns, solo materials, orchestrations, and choral arrangements of a religious nature may be performed in religious services. Without the exception contained in section 110, such performances might constitute copyright infringements.

Dramatico-musical works of a religious nature may also be performed in the course of religious services. Such works include certain performances of sacred music that may be regarded as dramatic, such as oratorios and cantatas. Also exempted from copyright infringement are displays of works of all kinds in the course of religious services. The exemption is not intended to cover performances of secular operas, musical plays, motion pictures, and the like, even if they have an underlying religious or philosophical theme and take place in the course of religious services.

To be exempted under section 110, a performance or display must be "in the course of services," and thus activities at a place of worship that are for social, educational, fundraising, or entertainment purposes are excluded. Some performances of these kinds may be exempted under section 110(4). This section exempts from copyright infringement certain performances of nondramatic literary or musical works that are performed without admissions charge or that are performed with an admissions charge if the proceeds are used exclusively for educational, religious, or charitable purposes and not for private financial gain, unless the copyright owner has served notice of objection to the performance at least seven days before the performance.

Since the performance or display must also occur "at a place of worship or other religious assembly," the exemption would not extend to religious broadcasts or other transmissions to the public at large, even if the transmissions were sent from a place of worship. Nor would the exemption apply to the public distribution of tape recordings of religious services containing any copyrighted materials. Thus, while a copyrighted religious musical work may be performed at a religious service, publicly distributed tape recordings of the service that reproduce the copyrighted work do not constitute a performance of the work in the course of services at a place of worship and, accordingly, such recordings are not exempt under section 110. On the other hand, as long as services are being conducted before a religious assembly, the exemption would apply even if they were conducted in such places as auditoriums and outdoor theaters.

The exemption provided by section 110 exempts only religious performances in the course of religious services from copyright infringement. The Act states that to perform a work means to recite or render it. Performance of a copyrighted hymn or choral arrangement thus means to sing it, and performance of a copyrighted cantata means to present it. There is therefore no license to copy a copyrighted work, such as by duplicating a single piece of music for all of the members of a choir, since duplication does not constitute a performance even though the duplicated copies may eventually be used in a performance. Only the copyright owner has the right to reproduce a copyrighted work by making copies. Similarly, a church may not assemble a booklet of copyrighted hymns or choruses (lyrics or music) for use by its members in the course of religious services since this would necessitate copying the protected works. Of course, a church can duplicate a musical work or lyrics whose copyright term has expired or that never was subject to copyright protection since such works are considered to be in the public domain.

In 1976, a publisher of religious music sued the Catholic Bishop of Chicago as representative of various churches in the archdiocese of Chicago that allegedly were infringing upon the publisher's copyrights by unauthorized duplication and use of its songs in "homemade or pirated hymnals" prepared for use in worship services. As a result of an agreement between the parties, over 80,000 "homemade" hymnals and song collections containing the allegedly infringing materials were collected from parishes in Chicago and impounded by the court. Thereafter, the publisher investigated other large dioceses and archdioceses in the United States to determine if unauthorized copying was occurring elsewhere. The publisher, claiming to have found copyright violations nationwide, notified the bishop in each area that local parishes were violating the copyright law by reproducing the publisher's copyrighted music without permission in the "pirated" songbooks. The publisher requested the bishops' assistance in determining the extent of the violations, and in voluntarily compensating it for the violations. When no assistance or compensation was offered, the publisher sought a court injunction restraining the National Conference of Catholic Bishops (NCCB) and the United States Catholic Conference (USCC) from further violations of the copyright law. [96] F.E.L. Publications v. National Conference of Catholic Bishops, 466 F. Supp. 1034 (N.D. Ill. 1978), aff'd, 754 F.2d 216 (7th Cir. 1985). Specifically, the publisher alleged that the NCCB and USCC violated the law by

failing to provide adequate direction to the dioceses and parishes concerning the proper use of [the publisher's] copyrighted materials and thereby caused, permitted and materially contributed to the publication, distribution and/or sale in many of the archdioceses and dioceses … of songbooks including songs which were copies largely from [the publisher's] aforementioned copyrighted work.[97] Id. at 1039.

The court, while refusing to grant an injunction, did recognize that the publisher had stated a claim for which relief could be granted.

Case study

• 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 radio station owner claimed that the religious services exemption allowed him to broadcast copyrighted compositions that 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.'"[98] Simpleville Music v. Mizell, 451 F.Supp.2d 1293 (M.D. Ala. 2006).