Rachel, the worship leader, wants to perform a popular contemporary song during church services. She plans to project the words on a screen so congregants can sing along. Her performance also will be broadcast live by the local radio station. Neither she nor anyone else on staff at her church have taken time to request permission by the copyright owner to perform the song, project the lyrics, or broadcast the performance live on the radio. Is she in violation of copyright law?
Copyright in a particular work is a property right created by law. Like any other property right, a copyright can be sold, donated, leased, inherited, and divided into parts. It is also protected by law against wrongful use. Section 201 of the Copyright Act makes it clear that “the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will ….” Like certain kinds of property, a copyright exists only for a limited term.
Recognizing that a copyright is a property right helps to explain why Bob, the music pastor, can’t copy, without authorization, music for his choir. Such copying amounts to a wrongful infringement upon the property rights of the copyright holders.
Consider the following analogy. Assume that you purchase a Maytag washing machine. You now own the property and have the legal right to use it, sell it, or otherwise dispose of it. However, you do not have the legal right to make duplicate Maytag washing machines. Only Maytag can do that. Similarly, if you purchase a copy of sheet music, you own that piece of paper. You can sell it, donate it, bequeath it to your heirs, or do anything else with it that is consistent with your ownership interest. But like the Maytag washing machine, you ordinarily do not have the legal right to make copies of it.
The important principle is this: a copyright is legally distinct from a material work in which the copyright is embodied. The owner of the copyright in a sacred song has a legal right to the copyright that can be sold, donated, leased, bequeathed, or otherwise disposed of. Likewise, a purchaser of a piece of sheet music containing the copyrighted song has a legal right to that piece of paper, and can dispose of it in any manner he or she chooses. But, the copyright owner does not necessarily have any legal rights in the published copies of the music, and the purchaser of a copy of the music does not have any legal claim to the copyright in the work.
Understanding the distinction between copyright and “a material object in which the copyright is embodied” is essential to an appreciation of the law of copyright and the rights of the copyright owner and a purchaser of a copy of the copyrighted work.
The Religious Services Exemption
Like all good rules, though, there are exceptions. As far as churches are concerned, section 110(3) ranks as one of the most important provisions in the entire Copyright Act. This section states that
the following are not infringements of copyright … performance of a nondramatic 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.
While it’s important that church leaders understand all of the exemptions covered in section 110(3) of the Copyright Act, we’ll focus on one of the most significant—the Religious Services Exemption.
The Religious Services Exemption applies to nondramatic musical works and “dramatico-musical” works of a “religious nature.” This language is intended to exempt certain performances of sacred music including those that might be regarded as “dramatic” in nature, such as oratorios, cantatas, and choral services. However, the exemption is not intended to cover performances of secular operas, plays, or motions pictures, even if they have an underlying religious or philosophical theme and take place in the course of religious services.
The House of Representatives Report on the Copyright Act of 1976 explains the religious services exemption as follows:
The [religious services] exemption covers performances of a nondramatic literary or musical work, and also performances “of dramatico-musical works of a religious nature”; in addition, it extends to displays of works of all kinds. The exemption applies where the performance or display is “in the course of services at a place of worship or other religious assembly.” The scope of the clause does not cover the sequential showing of motion pictures and other audiovisual works.
The exemption … applies to dramatico-musical works “of a religious nature.” The purpose here is to exempt certain performances of sacred music that might be regarded as “dramatic” in nature, such as oratorios, cantatas, musical settings of the mass, choral services, and the like. 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 … a performance or display must be “in the course of services,” thus excluding activities at a place of worship that are for social, educational, fund raising, or entertainment purposes. Some performances of these kinds could be covered by the [nonprofit performance exemption] discussed next. 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 where the transmissions were sent from the place of worship. On the other hand, as long as services are being conducted before a religious gathering, the exemption would apply if they were conducted in places such as auditoriums, outdoor theaters, and the like. House Report No. 94-1476
Key point.The religious services exemption does not apply to the copying of religious music since copying is not a performance or a display.
Key point.A federal court has observed that the religious services exemption is “a narrow exception to copyright protection,” and that the Copyright Act “narrowly limits the privilege accorded religious uses to performance of a … literary or musical work … or display of a work, in the course of services at a place of worship or other religious assembly.” The unauthorized copying and distribution of literature or music “falls outside of that narrow exception to copyright protection.” (Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000)
Example. A federal appeals court has observed: “The exclusive rights of a copyright holder include the right to print, publish, and copy a copyrighted work. Also protected is the right to perform a work publicly for profit. A copyright holder cannot prevent a not-for-profit performance of his work nor can he exact a fee for such performance. More specifically, the singing of a hymn at a religious service is a not-for-profit performance and [a copyright owner] cannot prevent congregations from performing any of its copyrighted works at a service. Nevertheless, [a copyright owner] can prevent churches from copying or publishing its copyrighted works, even if the churches only intend to use the copies or publications at not-for-profit religious services. If a church distributes copies of a copyrighted song to its members, this amounts to a publication of that work and can only be done with the permission of the copyright owner. The right to perform music at not-for-profit religious services contemplates that the musical work is performed from memory or from legal copies. Neither the religious element nor the non-profit element of a performance will protect illegal copying or publishing. (F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 1982 WL 19198 (7th Cir. 1982)
Example. Rachel sings a copyrighted sacred song as a solo during a morning worship service at her church. Since this constitutes a performance of the song, and since the copyright owner alone has the exclusive right to publicly perform a copyrighted work, Rachel’s performance would constitute an infringement of copyright except for the exemption provided by section 110(3) of the Copyright Act. Section 110(3) specifies that the performance of a musical work of a religious nature in the course of services at a place of worship or other religious assembly is exempt from copyright infringement. Therefore, neither Rachel nor the church has violated the copyright law.
Example. Same facts as the preceding example, except that the church broadcasts its morning worship services over a local radio station. The exemption provided by section 110(3) protects the live performance of the work in the course of the church service, but it does not extend to the radio transmission. The church should check with the radio station to be sure that it has a license authorizing the transmission of the copyrighted music.
Example. A church’s music minister makes an unauthorized slide of a copyrighted song and displays it on a screen during worship services. The making of the slide is an infringement of copyright that is not protected by section 110(3), since it does not constitute a performance or a display.
Example. A youth pastor rents a video of a religious movie for use in an evening youth service. The showing of the video to the church youth group is an infringement of copyright if it were rented out only for private home viewing. Such an infringement is not excused by section 110(3) since it does not constitute either a performance or a display.
This excerpt is from chapter 6 of the Essential Guide to Copyright Law for Churches, available at ChurchLawAndTaxStore.com.
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