The following blog post is reprinted with the kind permission of the editor of The Journal of the Association of Anglican Musicians (March 2017, vol. 26 no. 3).
Title 17, Copyright Law of the United States
Chapter 1, Section 110.
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 dramaticomusical 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 are a large number of issues that organists and choir directors run into when using music. Copyright law protects composers and lyricists so that they might receive compensation for their work. Copyright law protects both the written materials and performance of those materials.
Here are some dos and don’ts that may be helpful:
- One cannot use copyrighted materials without purchasing the appropriate number of copies or receiving permission from the copyright holder to reproduce the material.
- Choral music and handbell music cannot be reproduced unless you purchase the number of copies that you need from a publisher (or copyright holder) and you do not use both the reproduced copies and purchased copies. That is, the original copy sits on the shelf while the markup copy is used for rehearsals and performance and then the markup copies are destroyed after the performance. This would fall within the Fair Use doctrine because it is not harming the right of the owner of the copyright to get compensation for the works. (Alternatively, one can get written permission from the copyright holder to reproduce copies of the work.)
- Performances of “a nondramatic literary or music work” or “a dramaticomusical work of a religious nature” are permitted “in the course of services at a place of worship or other religious assembly” and do not infringe on copyright law. Remember this is the performance issue, not the possession of copyrighted printed music. Performance of copyrighted music not during a service—i.e. during parties and fundraisers, or recording of copyrighted music during an exempted performance—is not included in this exception. There are more issues about performances, including exceptions, if not performed during a religious service at a place of worship. These are more complex and need to be reviewed. For more information on fair use and performance exemptions see, for example, David Posteraro’s November 2, 2015 article on the website of the law firm of Kohrman, Jackson & Krantz.
- There is a great deal of older music that is in the “public domain.” These works are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable, and they are not subject to copyright law except where there has been material added that is copyrighted in a particular publication. Use and performance of original transcriptions is no longer subject to copyright protections or copies you make of such works. Digital copies are copyright protected, and such collections must grant permission for you to use and duplicate them. This is frequently the case on internet sites where the use or performance is not charged. For instance www.8notes.com has a “free music” section where a piece by Saint-Saëns is available and copyrighted with the note: “This file may be printed and performed freely, but should not be digitally copied, shared or reproduced without permission.”
- If you compose music or literary works, you may want to refer to an article in the Association of Anglican Musicians Journal concerning works for hire and issues involving works composed during work hours and at the site of your employment, using employer supplied materials (computers, instruments, etc). See “Church Employees and the ‘Work Made for Hire’ Doctrine,” by William Saviers, The Journal of the Association of Anglican Musicians, January 2010 (vol. 19 no. 1), page 3.
- And finally, there are services that, for a yearly fee and reporting, permit churches to make copies of hymns for congregational use from a large number of copyright holders who then get reimbursed by the service. OneLicense and Christian Copyright Licensing International are such services and can be helpful when introducing new hymns if one does not want to purchase the larger collection in which such hymns are published, or if one does not want to purchase permanent rights to copy. Also, there is a trend with publishers who, for an annual fee, permit downloading and reproduction of anthems for choir use. St. James Press is one of these publishers, along with some works downloadable from Church Publishing Company.
Editor’s Note: If church musicians have any questions about this topic, or are unsure if a piece of music can be legally reproduced, checking with an attorney is never wrong. This is a moral issue as well as a legal one.
William Saviers is an attorney based in West Virginia. He serves as Chancellor for the Association of Anglican Musicians, consulting the organization on corporation, employment, and intellectual property law. Saviers graduated in 1968 from Ohio University with a B.A., summa cum laude, Phi Beta Kappa, and was part of the Ohio Fellows program. He was a member of the Honors College and spent his junior year abroad studying at the Otto Suhr Institute for Political Science at the Free University of Berlin. After serving two years in Vietnam, he graduated from the University of Virginia Law School in 1974, and began his career in corporate law, working in the energy sector. During the course of his career, Saviers devoted time to church music in various settings, and became a member of the Association of Anglican Musicians. He was appointed Chancellor of the Association in 1997, a position he continues to hold. He also serves as a member of the Professional Concerns and Development Committee. He has written several articles for the Journal of the Association of Anglican Musicians and The Living Church on legal issues facing lay employees in the Episcopal Church and has helped revise and update the AAM publication Conflict and Closure, which is now titled Servant Leadership for Musicians: A Vocational Handbook for Ministry. Saviers has served in various capacities as a volunteer with Shepherd Wellness, Hospice, United Way, and since his retirement in 2004, has been working with Legal Aid of West Virginia as a pro-bono volunteer.