Church Music and Copyright Law

 I get phone calls and emails all the time from people asking about the legalities of performing or recording music in their churches. Some of the questions are simple and some are quite complex. One of the students in my Music Industry Law class at Trevecca Nazarene University in Nashville, Anna Price, just wrote an excellent primer on the subject of the intersection of the church and Copyright Law and with her permission, I am reprinting her work here. This should be really helpful.


Law and Light


 Copyright Law can seem like a cruel school master at times, watching and listening for any piece of work that might have been first used by another. Though that is a little exaggeration, it can seem like that at times. A person may innocently create something that is all too much like another’s work, and be greatly penalized for it. A person may not know any better and uses another author’s work in a way that violate that author’s right given by law under the Copyright Act. Whether knowingly or innocently infringed, the Copyright Law cannot be ignored.

 Though a tough and sometimes unclear subject, it is in the best interest of the people wanting to use protected intellectual property to know what is permitted and what is not under the Copyright Act, especially in the case of churches. The law is not meant to harm, but meant to protect and encourage authors and their work. The execution may be flawed in some cases, but the intent is good. The use of music and other copyrighted ideas in church can be a tricky subject, but the law does allow churches the freedom to “display” music and other works of authorship in services as well as provide protection for the authors.

 It is important to know what the church cannot do under the Copyright Law. It is also important to realize that even though fair use gives church services some liberty, it does not always protect from copyright infringement. The laws of copyright can feel like a leash on the dog; but it is especially important for the church to be aware of the law and obey it in order to act right under the law, and set an example to her people and the world. “Therefore submit yourselves to every ordinance of man for the Lord’s sake…as to those who are sent by him for the punishment of evildoers and for the praise of those who do good.” 1 Peter 2:13-14

 Some basics the church should understand about the Copyright Act are what the rights of the author(s) are, and what the church may be unwittingly violating. Directly from the Copyright Act Section 106 are the Exclusive Rights as follows:

“(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

 These six rights belong to the author(s)/copyright owner(s) alone. In order to legally use a piece of music or literary work - whether that means printing the lyrics or performing a song or another use - of another for any of the purposes mentioned above, permission is required.

 There is an exception to these protected rights known as the Public Domain that church may be familiar with. It does not mean that every song in the hymnal is free to use, unfortunately. Public Domain actually means that a copyright has expired. The current life of a copyright is the author’s life plus 70 years, after this time period the copyright expires and becomes public domain. This makes things a little easier for churches who sing old hymns because there are many great songs that are now part of the public domain. There is an issue to be aware of in the matter of public domain, however. Though a song may be public domain, there may be recorded performances of the song that are not. This is something to be aware when looking at public domain works.

 The Copyright Act also provides copyright limitations known as “fair use” which may be helpful in providing some allowances. The details of fair use are useful for the church to know. There are four things that a person, but more specifically a church in this matter, needs to look at, and ask if he/it is truly acting under the limited liberty of fair use. The four criteria for fair use are as follows:

“1.) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes, 2.) The nature of the copyrighted work, 3.) The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4.) The effect of the use upon the potential market for, or value of, the copyrighted work.” (Section 107 of the Copyright Act)

 The Copyright Act section 110 part 3 gives more specific guidelines for what fair use looks like in a church service:

 “(3) performance of a nondramatic literary or musical work or of a dramatic- 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.”

There the church has listed what she is allowed to use freely. The Copyright Act has provided leniency to use certain works without permission of the author so long as it falls under the above mentioned guidelines in a place of worship for the purpose of worship or teaching. These provide some protection from copyright infringement, but depend on the circumstances. Fair use does not always protect from copyright infringement. It is better to know for certain that the church is acting properly in regards to the law. If there is any uncertainty about whether or not an act of the church containing copyrighted material is considered fair use under the Copyright Act, then the church should ask a professional lawyer to be sure.

 Something to be aware of is that this provision does not include the ability to show a full movie without permission. Clips might be used as part of the lesson so long as it falls under the category of fair use or has permission, but to be able to show a movie for entertainment or other purposes at church permission is needed.

 Another pressing copyright issue churches should be aware of involves the recording and broadcasting worship services. This is yet another matter that needs attention. The sermon itself is not the issue, unless it copies another’s work, but if the recording of a church service contains copyrighted music the church needs a license. The desire to want to include the music in the service on a recording is understandable, but the church should be aware of the copyrights involved with recording it. Permission is needed from the copyright owner to record a copyrighted song. It may seem like a small matter, but once again it is good for the church to be right with the law in order to maintain an honorable presence in the community.

 Thankfully, in October of 1988, a new Performance Royalty Organization was launched with this very purpose of helping churches with copyright matters. This company is called Christian Copyright Licensing International, but more commonly referred to as CCLI. This is what CCLI’s mission statement says they exist for,

 “To encourage the spirit of worship to churches, organizations, and Christians individually, so that they may enhance their worship expression spontaneously, conveniently, affordably and legally.” (www.ccli.com).

 CCLI exists to help bridge the gap between the sometimes confusing world of copyright law and churches. CCLI helps provide churches with the resources and legal services they need to ensure smooth operation of worship services. Christian Copyright Licensing International provides licenses for copyrights, rehearsals, streaming & podcast, and videos. They also provide sheet music. They have resources of movie clips for use in lessons. They have different licenses, and they will explain what can be covered by the license and what cannot. Since 1988, CCLI now helps over 200,000 churches with copyright law, giving them the knowledge and ability to act legally and honorably more easily.

 The details that CCLI requires under the Church Copyright License reports be made for all copy uses every 6 months, but they encourage weekly reports be made to make the task simpler. They require the song titles being used, as well as the writers, copyright notices, and the church’s CCLI licensing number. In order to print the lyrics in a bulletin or project the lyrics on a screen, CCLI requires those four things to be listed at least once at the bottom of the page. All of these things help pay the authors their due, and give the church secure, legal resources to draw from.

 CCLI is not the only company available to help churches with these legal issues and provide licenses for copyrighted materials, but they are probably the best. As mentioned before, CCLI now helps over two hundred thousand churches.

 Much has been said about copyrights here, but churches may also want to know what kinds of costs are involved in violating the Copyright Act. There are statutory damages that will need to be paid to the copyright owner, which are thousands of dollars. There are also the court and attorney costs that will need to be afraid in the case of violation. These risks may be something churches want to be aware of. Not only will a case of infringement cost thousands of dollars that a church probably does not have, but it will cost respect.

 It is not very often that churches are actually sued for infringement, but the risk is growing and becoming more possible. Technology and knowledge have increased, and even the ways to access and use new technology have become better and easier in some ways. Ignorance will not be an option for long. Fair use may give a semblance of protection, but churches need to be careful. It is in the best interest of churches to be prepared and act responsibly in this day and age.

 All of these details about copyright law can become overwhelming - especially for a church that does not know any better. That is why CCLI exists. It is also why it is important for churches to be smart, to be aware. Churches need to be educated about and prepared for the realities and legalities of copyright law. Not only is there a huge risk involved if copyright owners should try to sue for infringement, but more importantly for the churches is the risk of their reputation.

 Church is more than a meeting place on Sundays. She is the representation of Christ on earth. She carries a great hope for the world. She is a light, and a city on a hill. She is God’s people. It is clear in Romans 13 that God wants His people to be an example, to obey the law. “Owe no one anything except to love one another, for he who loves another has fulfilled the law.” Romans 13:8 Even in as small or big a matter as copyright law the church can set the example. Be aware. Be educated. Be legal. Be safe. Be strong.

 List of sources: The Bible Websites: http://www.copyright.gov/fls/fl102.html http://www.churchmarketingsucks.com/2009/02/fair-use-and-your-church-part-1/ http://enrichmentjournal.ag.org/201002/201002_042_Copyright.cfm www.ccli.com http://www.copyrightsolver.com/mythsolvers http://www.christianitytoday.com/cbg/1999/mayjun/9y3038.html http://www.brotherhoodmutual.com/index.cfm/resources/ministry-safety/article/copyright-laws-and-fair-use/

The Miller Music Case: Correct but not Fair

Sometimes copyright law is correct but not fair. The U.S. Court of Appeals for the Sixth Circuit issued its ruling in the closely watched copyright case Roger Miller Music, Inc. v. Sony/ATV Publishing last week. The opinion, which I am sure comes as a tremendous disappointment to the Miller family clarifies an important question in copyright law; that is what happens when an author of a pre 1978 copyright dies before the renewal right in the copyright as vested.

The holding in this case is not abstract – it relies on a straightforward reading of 17 USC Sec. 304(a)(2)(B)(i). However the court's opinion does disturb what might have been a long-held belief about the Copyright Act’s application to pre 1978 copyrights and their renewal terms.

The great Roger Miller had a long-term professional relationship with Tree Music, the predecessor to Sony/ATV. Among the songs that are at issue in this case were those registered for copyright in 1964 including "King of the Road" and "Dang Me". The renewal terms for these works commenced January 1, 1993. Miller died on October 25, 1992. The facts of this case show that Sony applied to register the renewal copyrights in 1992 before Miller's death. The aforementioned section of the Copyright Act provides that if an application to register the renewal copyright is filed in the renewal year, the renewal copyright shall vest, upon the beginning of such further term, in any person who is entitled under Paragraph 1(c) to the renewal and extension of the copyright at the time the application is made".

The result, as the court said, is that "Roger Miller was entitled to the renewal copyright because he was living at the time an application for registration was made. Sony was in turn entitled as Miller's assignee and thus took ownership at the time the renewal vested on January 1, 1993.

This is the correct reading of the statute of course and on a purely philosophical level, it appears to be the correct result. However it seems to expose one of the vagaries of the Copyright Act and the commonly held belief that if an author died before the commencement of the renewal term, the rights went to his heirs automatically. The entire concept of the renewal term, which existed from the time of the Statute of Anne until the Copyright Act of 1976, was intended to give authors the proverbial "second bite at the apple" and to correct deals made when the author had an uneven bargaining position. The fact that publishers began to abuse this system by requiring authors to assign both the initial term and the renewal term of the copyright appears to have been an un intended consequence with was only remedied by the 1976's Act introduction of the 35 year termination of assignment provision and the introduction of the unitary term of copyright. However for authors who assigned works up to the end of 1977 the bizarre operation of the whole renewal concept remains murky and unfortunate. It seems unforgiving to require the operation of a renewal term to depend on something like the author's time of death and to have even that trumped by a publisher filing an application for renewal just seems inequitable.

new article in Billboard on termination of copyright grants

I have a small piece in the Legal Matters section of the July 30, 2011 issue of Billboard entitled "Confusion Emerges Over the right to terminate U.S. Copyright Grants". It's fairly arcane but could be beneficial to those who assigned copyrights after 1978 pursuant to agreements dated before January 1, 1978.
Unfortunately, there does not seem to be an internet link to the article but left me know if you're interested in reading the article.

The Myth of The Poor Man's Copyright

For the past 15 years, I have taught copyright law at a local college. Every year, without fail, I wind up in an argument with a student over the legitimacy of a so-called “Poor Man’s Copyright.” Folks, the Poor Man’s Copyright does not exist.

However, the myth is so pervasive that many of my students have told me that they were been advised by other professors of the important merits of this method.

Basically, the strategy is this: you take whatever work you have created that you want to protect (song, novel, epic poem, etc.) and mail it to yourself (sometimes the myth suggests certified or registered mail but I am not sure of the distinction for this purpose). The belief is that this somehow proves you created the work. In actuality, this proves that you mailed yourself a package.

The problem lies in a fundamental misunderstanding of copyright law. Our law provides that one’s copyright exists in an expressive work as soon as it is “fixed in a medium of tangible expression” (i.e., this is what creates the actual “copyright.”) The second step is registration of the copyright. Registration is not required to sustain a copyright. It is advisable, though, for purposes of proof AND it is a prerequisite to any sort of copyright infringement litigation. For those purposes, there are no short-cuts or alternatives to copyright registration; one must follow the procedures laid out in the Copyright Act.

I am not sure what the historical background of the Poor Man’s Copyright is. A quick Google search reveals that it is a system recommended to this day in several European countries where there is no central copyright registration authority. It also may date back to the days before the Copyright Act of 1976, when there were legal concepts like “common law copyrights” and other anomalies.

I suppose there is nothing wrong with mailing yourself a package, but please do not rely on that action as any sort of substitute for proper registration.

Songwriters and Bankruptcy

Back in June, Gary Roth, Head of Business Affairs at BMI, posted an article on the organization’s website explaining the potential ramifications of bankruptcy on songwriters and composers. This information is timely, especially in a state like Tennessee where we have the highest bankruptcy rates in the nation.

Many people do not realize that not only their copyright, but also their royalty income (i.e., public performance royalties, mechanical royalties, synchronization royalties, performance royalties, etc.) are considered “property” for bankruptcy purposes, just like any other piece of property, tangible or intangible. When a debtor files a Chapter 7 bankruptcy seeking liquidation of his debt, this property is subject to collection by the U.S. Bankruptcy Trustee, whose job is to try and use these assets to pay creditors. These assets can be sold by the Trustee, by auction or otherwise, to satisfy debts.

This is a very real probability.

I have represented both songwriters contemplating bankruptcy and publishers and other investors who have purchased these rights from the Trustee. In many cases I have learned that the songwriters were never even made aware that they could lose their copyrights and their rights to royalty income in bankruptcy. Either their bankruptcy attorneys never told them, or the writers never volunteered the information to their bankruptcy attorneys. Either way, they lost the rights to income from some significant copyrights and in some cases, the copyrights themselves.

One should always consider the risks of losing their rights to royalty income from their songs before filing a petition in bankruptcy.