A church group would like to use certain copyrighted music during a religious education camp. Being savvy enough to know that there is a federal copyright law, the church leaders procure the advice of an attorney on the legal issues surrounding the music program. The attorney does the research and tells the church the following advice. Normally, copyright law protects both the performance and reproduction of musical works. The songwriter has a copyright to an original piece of music. Anyone who performs or records that song must obtain a license from the songwriter. Once the artist obtains a license from the songwriter and records the performance, the artist has a separate copyright to the recording with respect to the sound recording itself. Every time that the recording is played on the radio, a license or permission must be obtained from the songwriter, but not the recording artist.
However, federal copyright law has made an exemption to these rules for religious musical performances and displays.1 Under 17 U.S.C. §110(3), performances of “a nondramatic literary or musical work” or “dramatico-musical works of a religious nature” that take place “in the course of services at a place of worship” are exempted from the copyright protections that are normally provided by law.2 The exemption applies to dramatico-musical works “of a religious nature.”
THE RIGHT TO PERFORM MUSIC AT RELIGIOUS EVENTS
For our purposes, the critical issue is whether music performed at a church camp event takes place “in the course of services at a place of worship.”3 This requirement was intended to exclude performances that- although they are occurring occur at a place of worship- are for social, educational, fund raising, or entertainment purposes, rather than as a part of the religious ritual.4 Unfortunately, federal courts provide almost no guidance in interpreting what qualifies as a “religious service.” But one case has interpreted the difference between a religious service and a musical performance that has religious content. In that case, the court held that a religious service could be defined by its substance, as quoted below:
“Local Talent Night” was advertised locally as a “Night of Christian Worship.” During ‘Local Talent Night,’ [the minister] said two or three prayers, and Bible passages were recited. Individuals were invited to accept Jesus Christ as their “Lord and Saviour.” [The minister] specifically said a prayer noting that “[God] would get glory for what happened that night, and that [they] were there to honor him.” [The minister] also took 3-5 minutes at the end of the service to “share the gospel,” during which he told those present that “Jesus proclaimed himself to be God’s only son, and that he did come and he lived a perfect life.” There also was a ‘time of invitation” that evening, during which three or four individuals from the audience came forward and asked for prayer. Those present sang “songs of worship,” the lyrics of which were placed on overhead transparencies. Passages of scripture also were recited. Faith Fellowship took up a collection at the event and raised between $150 and $200. 5
This worship service was deceptively called “Local Talent Night” in order to convince public school authorities to allow such a substantively religious event on school property, where the school district had a policy of allowing concerts with a religious theme but not religious services. Thus, a gospel concert could constitute a “service” when there is certain amount of audience participation, songs of worship, prayer, recitations of scripture, and an explicitly religious purpose behind the concert, such as “to honor God.”6 For the church group’s purposes, the definition of a worship service should probably be construed to include rituals with such elements, e.g. audience participation, songs of worship, prayer, recitations of scripture, and an explicitly religious purpose. However, this limited interpretation of a “service” is not conclusive, since courts have not definitively dealt with the issue of what constitutes a worship service in the context of copyright law.
Since the performance must also occur “at a place of worship or other religious assembly,” the religious exemption easily applies to churches and synagogues, as well as other traditional places of worship.7 However, as long as services are being conducted before a religious gathering, the performance right exemption applies even if they are conducted in places such as auditoriums, outdoor theaters, etc.8
To be exempted from copyright protection, a performance 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.9 However, some performances of these kinds could be covered by the not-for-profit exemption. The not-for-profit exemption applies if the performance involves no profit motive and none of the organizers, promoters, or performers is paid a fee or other compensation. The performance must also meet one of the following two alternative conditions to be exempt: either no direct or indirect admission charge is made, or the net proceeds are “used exclusively for educational, religious, or charitable purposes and not for private financial gain.”10 Under the second of these conditions, a performance meeting the other conditions would be exempt even if an admission fee is charged, as long as any amounts left “after deducting the reasonable costs of producing the performance” are used solely for bona fide educational, religious, or charitable purposes.11 In cases arising under this second condition, where there is an admission charge, the copyright owner is given an opportunity to object to the performance; otherwise, owners could be compelled to make involuntary donations to the fund-raising activities of causes to which they are opposed.12 This alternative exemption allows copyright owners to prevent public performances of their works by serving notice of objection on the promoters or organizers of the event,13 with the reasons for objecting to the admission charge, at least seven days in advance of the performance.14 The notice of objection must take a written form and must be signed by the copyright owner or his duly authorized agent.15 Even though the statute does not explicitly require the performing party to give notice to the copyright holder, the courts would likely imply this requirement.16
In summary, the copyright law sets forth a limitation to an author’s exclusive rights of public performance. Performances of music of a religious nature rendered during the course of religious services at a place of worship or at a religious gathering are exempt. But all of the elements contained in that statement must be satisfied. For example, it is not enough for a performance to occur at a church, unless the performance is rendered during the course of a religious service.17 Functions that take place at a church for social, educational, fund raising, or entertainment purposes are not part of the religious ritual.18 Therefore, these activities do not receive the religious exemption under the copyright law, but performances might be exempt under another provision of the copyright law, if they are not-for-profit or have been cleared by the copyright holder without objection.19 Finally, the exemption to the performance right does not apply to any religious broadcast, even when the broadcast originates at the place of worship.20
THE RIGHT TO RECORD A RELIGIOUS WORK
A copyright holder normally has the exclusive right to print, publish, and copy a copyrighted work.21 As a result, the copyright holder can prevent churches from copying or publishing her copyrighted works, even if the churches only intend to use the copies or publications at not-for-profit religious services.22 If a church distributes copies of a copyrighted song to its members, this action amounts to a reproduction of that work and can only be done with the express permission of the copyright owner.23 The right to perform music at not-for-profit religious services assumes that the musical work is performed from memory or from legal copies. Neither the religious exemption nor the non-profit performance exemption will protect illegal copying or publishing.24
THE EPHEMERAL RIGHT TO COPY RELIGIOUS MUSIC FOR BROADCAST
A governmental body or nonprofit organization such as a church may make a single copy or phonorecord of a particular transmission program or sound recording embodying a performance of non-dramatic musical work of a religious nature. This copy is exempt from copyright protection as long as three conditions are met:25
1. The nonprofit organization may not charge money for the making or distribution of the copy.
2. The copy is not used for any performance other than a single transmission to the public. The single transmission must be made by a transmitting organization (e.g. a television station) that is licensed by the copyright holder.
3. Only one copy may be preserved for archival purposes. All other copies must be destroyed within one year from the earliest date of transmission to the public.
Basically, this provision allows a non-profit organization to make a single copy of a performance of religious music and distribute it at no charge, so long as the copy is never publicly performed except pursuant to a license and is destroyed within a year.26 This so-called “ephemeral recording right” allows a broadcaster to make a temporary tape of a copyrighted religious work for convenience in broadcasting the work, when the broadcast has been licensed with the permission of the copyright holder. If the ELCA wants to make a single copy of a sound recording, it may do so in order to use the copy for a licensed transmission.
THE “FAIR USE” DOCTRINE
Music and other literary or artistic material may be quoted for commentary, criticism, scholarship, news reporting, teaching, research, or review without invoking copyright protections. Such reproduction of the work is called “fair use.”27 However, this right does not extend far enough to allow for the complete performance or reproduction of the work. In all other respects, “fair use” doctrine applies to religious music in the same manner as it applies to other non-religious music and is subject to copyright protection.
INTERNATIONAL COPYRIGHT LAW CONCERNS
The international copyright protections developed under the Berne Convention merit some mention. Similar to U.S. law, the Berne Convention grants an exclusive right of performance to the author of a musical work. This right is subject to a religious services exemption that is closely analogous to the U.S. exemption. In fact, this exemption is “one of the most widely adopted of public performance exemptions in the laws of the Berne Union countries.”28 The music and authors from these Berne Union countries would be covered under the aforementioned religious service use exemption.
Copyright law grants an exemption to churches and religious groups when they hold performances of copyrighted music in the course of worship services, regardless of their location. Thus, performances at the church group’s religious education programs are exempt if they are in the course of a worship service or worship event. Also, any music performed outside of the regularly scheduled worship services would qualify for the not-for-profit exemption and would not necessarily require the permission of the copyright holder, as long as the performance is not-for-profit and no admission fee is charged. In short, as long as the church group is acting within the boundaries of worship, then the use is exempt.
1 Protection for displays is not relevant to this memorandum.
2 See 17 U.S.C. §110 stating, “Notwithstanding the provisions of section 106, the following are not infringements of copyright:... (3) 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 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, etc. The religious exemption does not cover performances of secular operas, musical plays, motion pictures, etc., even if they have an underlying religious or philosophical theme and take place “in the course of [religious] services.”
4 This would possibly include events such as lock-ins, women’s coffees, and bridge tournaments.
5 Liberty Christian Ctr. v. Board of Educ. of Watertown, 8 F.Supp.2d 176 (N.D. N.Y. 1998)(holding that the Church is entitled to summary judgment on § 1983 free speech and equal protection claims against school board, which refused its request to use cafeteria during non-school hours for “worship service,” where same space has been used in past for gospel concerts and Christian talent shows, because distinction board has drawn here is between events involving substantially similar elements-prayer, worship, and religious music).
6 Id. at 184.
7 Notes of House Committee on the Judiciary, H. Rep. No. 94-1496 (1976), reprinted in 17 U.S.C.A. §110 (1996).
10 See 17 U.S.C. §110(4).
13 Melville B. Nimmer and David Nimmer, 2
Nimmer On Copyright
§8.15[E][b] n. 113 (1999). The Code does not explicitly specify upon whom the notice must be served, but the Copyright Office Regulations provide for service of the notice on “the person responsible for the performance.” 37 C.F.R. § 201.13(a)(2).
14 See 17 U.S.C. §110(4).
15 See 17 U.S.C. §110(4)(B)(i).
16 See Melville B. Nimmer and David Nimmer, 2 Nimmer On Copyright §8.15[E][b] (1999).
17 Melville B. Nimmer and David Nimmer, 2 Nimmer On Copyright §8.15[D] (1999).
19 Note that the copyright holder would still need to acquiesce to the performance under 17 U.S.C. §110(4).
20 17 U.S.C. §110; See also Al Kohn and Bob Kohn, Kohn on Music Licensing 869 (1996).
21 As eluded to previously, also protected is the right to perform a work publicly for profit. 17 U.S.C. § 1.
23 See Macmillan v. King, 223 F.2d 862, 867 (D.C. D.Mass. 1914); Tiffany Productions, Inc. v. Dewing, 50 F.2d 911, 914 (D.C. Md. 1931); F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 199 U.S.P.Q. 85 (N.D. Ill. 1978).
24 See Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962); F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 199 U.S.P.Q. at 85.
25 17 U.S.C. §112(c)
26 See also Jay Dratler, Jr., Distilling the Withches’ Brew of Fair Use in Copyright Law, 43 U. Miami L. Rev. 233, 240 (1996); Jessica Litman, The Herbert Tenzer Memorial Conference: Copyright in the Twenty-First Century: The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 54(1994).
27 See 17 U.S.C. § 107.
28 See Final Report of Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 Colum.-VLA J.L. & Arts 513, 527 (1986) (concluding that religious services exemption also qualifies as a type of “minor reservation” within language of Brussels and Stockholm Conference declarations).
Sean M. McCumber is an associate attorney at Sullivan Taylor & Gumina, with a practice concentration in family law, adoptions, and juvenile law. He graduated magna cum laude from Illinois State University in 1995 with a B.A. in Criminal Justice Sciences. He earned his J.D. magna cum laude from the University of Illinois College of Law in 1998. Sean is an active member of the DuPage County and Illinois State Bar Associations, where he focuses on improving the representation of children in our legal system.