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December 2005
Understanding Copyright Issues
By Rush Hicks
Copyright issues have always presented many prospective grey areas. Churches who perform, record and distribute music for ministry purposes seem to ask the same types of questions when it comes to understanding what is legal and what isn't. Rush Hicks, a musical attorney in Nashville TN offers his perspective on this important issue.
Law History
Congress passed the first U.S. Copyright law in 1790, based in part upon the experience of the English after the invention of the printing press. Technology was the driving force behind copyright law two hundred years ago and it’s still the driving force behind changes in copyright law today. In just the past two decades, the U.S. Copyright Act has been amended nearly a dozen times.
Copyright law is intended to protect creators of works from unauthorized users with the goal of encouraging more creation. Congress, as well as this country’s founding fathers, believed that without incentives for people to create new works, the creative output would slow dramatically. But, unfortunately, many people believe they have the right to use someone else’s copyrighted work without compensating them and technology has given them the tools to do so.
Our country has an enormous vested interest in the creation of new and original works since our leading worldwide export is intellectual property such as movies, TV, music, books and computer software. Congress is looking at new ways of combating piracy through legislation and the U.S. Justice Department has formed a task force to prosecute infringers and hopefully reduce copyright infringement.
The most recent overhaul of U.S. copyright law occurred in 1976. The 1976 Copyright Act, the effective date of which is January 1, 1978, developed a system that did not require, but encouraged copyright registration and granted the copyright owner the exclusive rights to reproduce and distribute the work, create arrangements, publicly display and publicly perform the work. An original work was considered protected from the moment it was fixed in a tangible medium of expression and the term of protection for a copyrighted work was fifty (50) years after the death of the last surviving composer. Congress has since extended the term to seventy (70) years to more closely follow the term of European copyrights.
As an example, a composer puts notes and lyrics on a lead sheet or even utilizes a computer software program such as “Garage Band” or “ProTools” to create a new work. The Copyright Act provides that copyright owners have the right to pursue legal claims against third party infringers and recover lost profits, attorney’s fees and court costs.
Securing Permission
What does all of this mean? Essentially, a user (Church music director, musician, singer, choir) must secure permission in the form of a license to perform someone else’s copyrighted works. This includes making copies, printing bulletins containing lyrics, making transparencies or slides and projecting them in the Church, recording services containing music and making videos of worship services or special musical presentations. There are some exemptions and a license is not required if the work is in the public domain, but for the most part, a user must contact the owner of the copyright (usually a music publisher) and request permission to use the work.
When performing a copyrighted work in a worship setting, Congress granted a religious services exemption from the performance of that work. Normally, a user must secure a public performance license from ASCAP, BMI and SESAC to perform copyrighted works but not in a religious service. That applies to live as well as recorded performances. The music publisher authorizes the performing rights societies to collect license revenue for the public performance of works on radio, television, live venues, colleges, clubs, etc. Thus, a church youth group that sponsors a coffeehouse may need to secure such a license unless the performance fits within the exemption.
Transparencies and Printed Lyrics
There is also a public display requirement to utilize copyrighted work in transparencies, printed lyrics and on video screens. Christian Copyright Licensing International (“CCLI.com”) provides the church a license for public display of copyrighted works. The CCLI license is intended to cover congregational singing and does not authorize the right to photocopy or duplicate choral sheet music, musicals, handbell music or instrumental works. You can find information on the website of the Church Music Publisher’s Association (“www.cmpamusic.org”;), including a pamphlet detailing the permitted uses of copyrighted material by a church musician and addresses of the individual publishing companies should you need to contact them.
The U.S. Copyright Office website provides more extensive information explaining the various provisions of the Copyright Act (“www.loc.gov”;) in addition to assisting you in locating copyright owners.
Some users claim their use of copyrighted works is exempt due to the concept of fair use, but note that “fair use” is not generally applicable to Churches. Fair use allows users of copyrighted works to avoid securing permission if the work is used for purposes of criticism, comment, news reporting, research and parodies.
Distributing Music
If a Church records its services and then manufactures compact discs and DVDs of the performance, the Church must request a mechanical license from the music publisher and/or its agent such as The Harry Fox Agency. The Copyright Act grants a compulsory license to the user of the musical composition after the music publisher authorizes a first recording and release of the song. Thereafter, anyone can record the work by paying the statutory royalty rate to the music publisher. The current rate is 8.5 cents per song per CD manufactured. That does not, however, authorize in some cases the use of the lyrics printed on the CD cover.
When using a prerecorded instrumental track to make a recording to distribute to Church members, two separate licenses are necessary. One license is required to use the musical composition and the second license is from the owner of the accompaniment track, usually a record company. In dealing with videos, in addition to the statutory royalty rate, the user must secure a synchronization license from the music publisher. That is a negotiated rate between the parties.
The Law of Today
Major overhauls of the U.S. Copyright Act took place in 1909 and 1976. Beginning in 1992, the 1976 Act has been amended an average of every other year due to the increased pace of technological development, i.e., the internet, MP3, digital downloads, satellite radio, etc.
As a result of the rapid rise of peer to peer networks, illegal copying of compact discs has risen dramatically and forced the major record companies, through the RIAA (Recording Industry Association of America) and the music publishers through the NMPA (National Music Publishers Association), to initiate a series of infringement lawsuits against flagrant violators of U.S. Copyright law. Violators of copyright laws may be subject to serious financial penalties, including reimbursement of the copyright owner’s attorney’s fees.
Other countries have begun a crackdown on illegal downloading as well since our intellectual property reaches throughout the world. Without copyright protection, it’s clear that there would be less music created which hurts everyone in the Church. Congress is considering additional enforcement measures to curb illegal copying of music and movies in an effort to keep the music industry from collapsing. Most people believe the evil record companies are the only beneficiaries of these measures, but you must also consider the livelihood of their employees, the music publishers, recording artists, bands, songwriters, artist managers, recording studios, etc.
The music industry has taken a tremendous hit during the past five years and the public, including Church musicians and music ministers, must recognize that a healthy music industry only strengthens the Church.
Many resources exist which can help clear the blurred lines of legality surrounding copyright issues for worship venues. The important thing is to do your research. Make sure that your church isn't infringing on the law, especially in these sensitive times. By doing your homework, you will be able to focus on the delivery of the Message rather than on potential legal issues.
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