Tuesday, April 15, 2008

SINGING IN CHURCH - is it against the Law?

SINGING IN CHURCH

Does your Congregation need a License from CCLI?



A friend of mine has asked me to investigate CCLI for her church. They received a pamphlet from CCLI, which seemed to imply that they would need a Copyright License in order to use music in their church. The CCLI materials and website are somewhat vague, and hence misleading, in my opinion, and tend to panic honest God-fearing Christians. The pamphlet I received says "if you can answer YES to any of these questions, you need a CCLI license!" But as we shall see, this is NOT QUITE THE CASE.

One of the questions was "do you photocopy sheet music or print music in your programs?" My church answered "yes" and assumed they needed a CCLI license. The pamphlet did not go into more detail as to why they would need a license or whether they were exempt. However, the pamphlet did list all the dire consequences that could occur (suits for tens of thousands of dollars!) if they did not.

One of the ladies in the church was convinced they are all going to go to jail or be sued out of existence because they are violating Copyright laws by singing from the hymnals and because the bell choir director made a photocopy of a music sheet. I don't think that is quite the case.

The following is an analysis of some of the issues surrounding these license agreements. Every church's situation is fact-specific, so consult with a Copyright Attorney for information regarding your Church. This information is for educational purposes only.


WORSHIP PERFORMANCE EXCEPTION

To begin with, there are many forms of Copyright, and many forms of infringement. For music, there are at least three forms of Copyright. There is the sheet music itself, which can be divided into the subset of the score and lyrics, both of which are Copyrightable. Note also, that with regard to sheet music, there are also "arrangements" that are Copyrightable, so that a particular arrangement of an old tune may still be Copyright, even if the underlying tune fell out of Copyright. There are also recorded performances, which are Copyrighted. If you are a recording artist, you have rights to the recording, even if you did not write the song or lyrics. Finally, there are performance rights. Even if you do not copy the sheet music, if you perform a song in public, it is a public performance of a work and could be an act of infringement.

A classic example is the "Happy Birthday to You" song, which was still in Copyright, at least as of very recently. Many chain restaurants do not sing this Copyrighted song, as they would have to pay royalties on this "public performance." Hence, when you go to a chain restaurant, they often sing a "Hey, it's your birthday" type of song that they created. With thousands of restaurants and at least 2or 3 birthdays every night in a restaurant of any size, they would have to pay royalties for tens or hundreds of thousands of performances a year.

However, there is no law against singing in Church, however. Copyright law explicitly EXEMPTS worship services from the "performance" clause. So sing whatever you want - old hymns or modern tunes. SINGING is not an infringement of anyone's copyright, provided it is in church and part of a worship service.

A coffee shop or restaurant attached to the church - that's a different story. A commercial enterprise is not covered under the performance exception for worship services. So, if you operate such an establishment, or use your sanctuary for concerts or other performances, you might not be covered under the worship exception – particularly (but not exclusively) if such performances are for-profit.

Making photocopies of the sheet music, on the other hand, is not covered by the worship performance exception.


WHAT IS CCLI? HOW DO THEY WORK?

CCLI offers a "church license" for music in their portfolio. Do you need it? That depends on your specific fact situation. Buying a license you don't need makes no sense at all. But some churches might need it. It depends on what kind of music you are copying.
CCLI does not own the Copyrights. They merely are a clearinghouse for licensing rights, offering a flat-fee yearly package that allows you to copy sheet music from their library (they offer other licenses in other divisions, but the sheet music license is the focus of this article). The idea was to provide "one stop shopping" for churches to comply with Copyright requirments - or at least that is their stated goal.

Before you buy a license, make sure you need one. Music in their sheet music portfolio usually has a notice on it with a CCLI license number, or the "worshiptogether.com" notation. If your congregation is making copies of music with these notations on it, a license might not be a bad idea (or buy additional copies in stead of photocopying them).

The license also allows you to download sheet music from their site. If you use a lot of "new music" (as opposed to the old hymnals) this may be a cost-effective and more timely way that buying individual copies of sheet music.

Note that the license agreement does not include instrumental music, apparently - at least from what I can glean from their "user manual" page. It explicitly excludes bell choir music, so it is of no help to my friend, as we shall see below.

Their library includes 160,000 songs (at the present time), including hymns as well as more modern (Contemporary Christian) music. Traditional hymns and the like (over 75 years old) may be in the public domain. You may not need a license to copy traditional hymns like that.

As noted above, the performance of works in copyright (for example, playing music) as part of an act of worship is specifically exempted from copyright laws. You are not going to get sued because the congregation sang "Kumbaya, My Lord" on Sunday morning. And certainly "Nearer My God, To Thee" and other old-time songs are mostly in the public domain by now, anyway.

The only issue is PHOTOCOPYING sheet music, or projecting copies on an overhead projector or the like.


SO, DO I NEED A LICENSE?

As noted above, this material is for educational purposes only. You should consult with an Attorney regarding your Church's specific needs. But let's take the example of my friend's Church. They are a small congregation, with only about 25 members. They have a part-time bell choir, and no singing choir since the death of the choir director. They sing mostly songs out of the Church Hymnal (which they have many copies of) and also pass around two hymns that are photocopied each week.

The CCLI materials and website are somewhat misleading, in my opinion, and tend to panic honest God-fearing Christians. The pamphlet I received says "if you can answer YES to any of these questions, you need a CCLI license!" NOT QUITE THE CASE!

One of the questions was "do you photocopy sheet music or print music in your programs?" My church answered "yes" and assumed they needed a CCLI license.

However, there are some CAVEATS that the CCLI pamphlet glosses over:

(a) You do not need a CCLI license to copy public domain pieces (generally anything over 75 years).

(b) You do not need a CCLI license if you have permission to copy the work.

(c) You do not need a CCLI license to copy materials not in their library (but you may need someone else's license).

(d) CCLI is not the only licensing agency out there, they are just the most convenient and the most aggressively marketed.

(e) CCLI covers only limited categories of music - for example, bell choir sheet music is not covered.

They want about $100 a year for a license for my friend's church, which for their tiny congregation is a lot of money. $100 also buys a LOT of sheet music. If you just buy legal copies of the sheet music (as opposed to photocopying it) you are not infringing any copyright on the sheet music, at least from a copying perspective. $100 buys a lot of sheet music, as I said.

The main issue is making copies of sheet music and passing them around or printing songs in the church bulletin. If it is PUBLIC DOMAIN this is not an issue. If it is used with PERMISSION (surprisingly easy to get, with a phone call) this is not an issue. If it is NOT IN THE CCLI catalog, a CCLI license is not a protection.

In my friend's church's case (25 members) there is a song reprinted on each Sunday's program. I called the copyright owner directly and they were thrilled we were using it and granted permission, asking us only to attribute the song and add a copyright notice and "used with permission". So that is clearly not an issue for my friend's church.

The only other item they copy is an old (1880) hymn out of an old (1900) hymnal, so that is public domain. You can copy that until the cows come home. Thus, the only items they were copying did not require a CCLI license, as they were used with permission, or were public domain.

The rest of the music they use is out of the hymnals and they have more than one copy for each parishioner. The Hymnal copyright page authorizes the church to make copies for use in services (e.g., for sheet music for the piano). So that is covered, too.

They have part-time bell choir, but two bell choir organizations that the director belongs to handle licensing for their sheet music, and much of it is sold with the caveat "Choir director may make up to 4 copies". So we are covered there as well. CCLI does not license Bell Choir music, anyway.

I did find some dusty copies of sheet music that the late choir director had copied for the choir. However, these had the explicit notation that they were NOT COVERED BY CCLI and as a result, a CCLI license would not be any use in bringing the church into compliance for such music.

So, for my friend's church, no, we do not need a license from CCLI at the present time. If things change, then maybe they should look into it.


BUT ISN'T THIS FAIR USE ANYWAY?

I am not sure if photocopying sheet music for church would be considered "fair use". The fair use portion of the Copyright Statute sets forth grounds a Judge may consider for your defense at trial. So it is somewhat a gray area. If you are performing for profit, making copies of contemporary Christian music (where the copyright is still valid) then you are probably infringing by copying the sheet music and it may be also be an infringing performance as well.

On the other hand, if you are singing an 18th century hymn than you photocopied out of a 1902 Hymnal, it is highly unlikely you are infringing anyone's copyright.

As for photocopying from the hymnals, check with the publisher. The hymnal my church uses allows the pastor to make a reasonable number copies of the hymns for use in services. So that clearly is not an issue for my friend's church.

But the "fair use" portion of the Copyright Statute is only a defense. It is a shield, not a sword, and there is no guarantee that it will protect someone from an infringement suit.


THIS FEELS LIKE A SHAKEDOWN OR RIP OFF TO ME. IS IT?
CCLI is doing nothing illegal, as far as I can tell. The service they offer is legitimate, and similar to services offered by other licensing agencies (BMI, ASCAP). They are perhaps a bit over-aggressive in stating the need for the licenses, though. If I sell you a product you have no use for, but lead you to believe you desperately need it, have I done anything illegal? Perhaps not. But that does not make it right in a Christian sense.

The CCLI website sort of puts the "fear of God" (or at least Copyright law) into you, with all sorts of predictions of dire consequences, such as $150,000 lawsuits and jail time. I am not sure this is appropriate for a Christian organization to use such scare tactics. They are scaring these little old ladies to death! They also imply (in my opinion) that their license is a panacea for church music copyright issues, when the license is clearly limited, at least according to the "handbook" on the site. (I asked them to send me a copy of the license agreement, as it is not available on the website, only the "handbook").

Christians, being honest people, are easy to take advantage of.

I searched on the Internet and found some information critical of CCLI. Some folks wonder where all the money goes as they do not appear to publish annual statements, etc. Who is profiting from these licenses? It is a question worth asking. I do not have these answers.

Also, as a Christian organization, I am more than a little disappointed that their literature suggests that people get licenses without explaining the need fully (but listing lots of scary, but unlikely consequences if they don't). Is this truly a Christian way to act?


HAS ANY CHURCH BEEN SUED FOR COPYRIGHT INFRINGEMENT? WILL I BE SUED BY CCLI IF I DO NOT TAKE A LICENSE?

I have not been able to find any example of any SMALL church being sued for copying music scores. There was one BIG case, as explained to me by the people at CCLI:

"CCLI has never sued anyone over copyright infringements [sic]. The authors and publishers would be the only ones with the right to do that. We actually were started by a local church's music director (Howard Rachinski) when the Catholic publishers sued their churches for copyright infringements [sic]. . . . . . The case that started this was in the 1980's, when the Arch-Diocese of Chicago was sued by a Catholic publishing house for copying words into their programs. I don't have the case name. They ended up settling out of court for $190,000.00, but by then, the story had made it into the national spotlight." (e-mail from CCLI, April 2008, emphasis added).
The Catholic church is a "deep pocket" which makes such a suit worthwhile. But then again, $190,000 is chump change in a Copyright lawsuit, which can cost anywhere from $10,000 to $100,000 a MONTH in legal expenses. These folks did not "win" much in their lawsuit, after expenses. Do you think an individual copyright owner is going to spend $50,000 to $100,000 suing your church? Do you really think a jury will return a verdict in their favor? Those are interesting questions to ask. I am not supplying the answers, only asking the questions.

Why is this "suddenly" an issue today? Well, more and more people have photocopiers and it is much easier to make copies. Also, we are much more aware of IP issues in the last two decades, with the boom in the IP business. Perhaps we are TOO aware of IP these days. Some would say things have gone too far...

But, it is true that nearly every time you photocopy a page from a book or magazine, you are illegally copying something (unless it is 75 years old or you have permission). Yes, you might allege "fair use" as a defense, but that is only a defense to a charge of infringement. We all commit de minimis acts of infringement every day without thinking about it.

But let's face it, hardly anyone gets caught for sending Aunt Hattie a magazine article photocopied (please don't say "Xeroxed", OK?) out of Retirement Living magazine. That does not mean it is legal, only that it is nearly impossible to get caught.

I drove by a cop yesterday, doing 50 mph in a 45 zone. He did not pull me over. That does NOT mean the speed limit has been raised to 50 now. Same thing for Copyrights. Don't confuse not getting caught with something being legal.

But, on the other hand, no one is going to bother going after a small congregation for making a few copies here and there. Illegal? Yes. So is speeding in the church bus. But I've been passed by a few church busses in my day.

If you are a pastor of a MegaChurch and are making 3,000 photocopies every Sunday for services, well, that is another thing entirely. That is not some small act of infringement. Moreover, you are a big target, and all it takes is one disgruntled member to call the copyright owner and turn you in.


CONCLUSION

So, do what you think is best. Obeying the law is a good idea. CCLI is one approach, but not the only approach. Make sure what they offer is what you need, or you are just buying a false sense of security. On the other hand, if you are singing an 18th century hymn than you photocopied out of a 1902 Hymnal, it is highly unlikely you are infringing anyone's copyright.

But let me commend you-all for being honest and concerned about it. Let's face it, the odds of being "caught" are slim, and I have yet to find an instance of someone suing a small church for copyright infringement. Yet.

But make sure their license really does cover your needs or that you really need it. Otherwise, you are buying false security, or just plain wasting money. It seems to me that they are trying to stampede churches into signing up for these licenses, when in fact many may not need them. Their website could be a lot clearer on this point.

Consult an Attorney for fact-specific advice related to your church or organization. Remember that commercial enterprises (restaurants, coffee shops, etc.) are a whole different ballgame. And just because you sign a CCLI license does not mean you are covered for ALL music - only the music covered in their library. You might still get a nice visit from the folks at ASCAP and BMI, who also have libraries of licensed music.