Keeping it Legal – Churches and Copyright
“Honest, officer, I didn’t know I was infringing.”
Religious institutions are in the business of making connections: internal connections within individuals to build their own integrity, or external connections between congregants for building community. Those connections can be emotional, intellectual, spiritual, or some combination of the three.
Some of the tools we use to accomplish this include the artful use of word, song, and image. Sometimes the words, songs, and images are our own, and sometimes they were created by, and therefore the property of, someone else. Are we allowed to use the income-generating property of someone else, as in the case of a popular song or the image of a celebrity or cartoon character? If some individual or business is relying the income from their media creations for their livelihood, you can easily understand why they might react negatively to someone, even a church, using these creations without compensating the creator/owners. Even if little or no income is being generated by these words, songs, or images, the owner still might feel violated when their work is used without permission, perhaps in a way they never intended.
But wait a minute – do religious institutions really need to be concerned about this? Don’t they get a pass on some of these legalities, for all they good work they do? The answer is not a simple yes or no. There are conditions under which religious institutions do get a pass. But those conditions are limited, and it’s important to know them. There are also common situations when a religious institution can clearly cross a line into illegal behavior, and could easily be unaware that they are doing so. An understanding of copyright is key to figuring this out.
Copyright. Copyright is a simple enough concept – the right to copy. Copying can take many forms, so it might not always be obvious when copying occurs. Making a photocopy of a piece of art or a creating a sound file of a recording of music is easily recognizable as copying, but displaying a photo or video, or including someone else’s words in a talk, might slip “under the radar” of our awareness of copying. Nevertheless, such use can infringe on the intellectual property rights of others.
When someone creates a musical composition, a piece of art, or a work of literature, they are automatically covered by copyright law. They can strengthen that legal protection by registering their work with the Copyright office of the US government. Copyright law gives the creators what is known as a “bundle of rights.” Those are (links redirect to Cornell Law School legal definitions):
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- 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;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- 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
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
This protection is in place to protect and encourage creative work, by allowing creators to profit from their work without fear of it being stolen in some manner. But there are also limits to copyright, to keep things in a healthy balance. Copyright doesn’t last forever, for instance. The works of Mozart or Stephen Foster are in the public domain, free from copyright. The term “fair use” is applied when, for example, copyrighted materials are being discussed in a scholastic setting or in a review or news report, again without compensation. So, it cuts both ways, protections for the creator, but with limitations so that the public can still exercise inquiry and free speech. And the free exercise of religion.
The religious exemption. The doctrine of the separation of church and state is foundational in the US constitution. In keeping with that, copyright laws carve out an exemption for the use of copyrighted materials in religious services. The law itself is actually pretty short and to the point: “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. For anyone wanting to read the entire law for themselves, it is U.S. Code Title 17, Chapter 1, Section 110, Limitations on exclusive rights: Exemption of certain performances and displays.
The law’s verbiage contains some words and phrases that have specific meanings and implications for us:
- “nondramatic literary or musical work” – the term “nondramatic” refers to works that didn’t originate in theater, film, etc. gov defines a dramatic work as being “a screenplay, play or other script; a pantomime; or a choreographic work.” So, no readings from a movie script or dances from a Broadway show. But pretty much anything else, like a popular song, or a reading from the book of the month, is fine, go ahead with it.
- “dramatico-musical work of a religious nature” means that a play, even a musical play, may be performed without infringing copyright, so long as the work is religious in nature.
- “display of a work” allows for the use of images, whether of copyrighted works of art, or of images related to copyrighted literary or musical works, such as an album cover or a poster.
- “in the course of services” This is the real kicker. This exemption from copyright is for regular services, nothing else. For most religious institutions, services are held on Sunday mornings (acknowledging Saturdays for Jews and Adventists, et. al.) and perhaps Wednesday evenings. In addition to timing, the character of “services” is different and separate from other activities which might typically be found in a religious center, such as classes, workshops, fundraising events, concerts, plays, etc. While the classes and workshops could possibly fall under “fair use” provisions for the use of copyrighted materials in their studies, other events falling outside of regular services are definitely not covered by either fair use or the religious exemption. Also, “in the course of services” has not been held to include broadcast or streaming of those services, but only the in-person, regularly scheduled meetings of a minister or priest with their congregation, to explore religious teachings and concepts. Under those circumstances, however, copyright law gives way to religious freedom.
Next time: more about Facebook live, YouTube, and streaming.
Al Yankee
About the author: Al Yankee is a well-established New Thought songwriter and performer from southern California, with 3 albums of spiritual material to his credit. Al lectures on Music Business at Chaffey College and Mt. San Jacinto College and owns Legacy Artists, an event production company founded in 1994. He is the founder of the New Thought Music Festival and the Science and Spirituality lecture series.