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Monday, 10 October 2011

What Happens When Music Enters a House of Worship?


How does copyright deal with musical liturgy? Reaching back to the Middle Ages, the roots of Western music are grounded in liturgical melodies intended to be part and parcel of the liturgy itself. Fast forward to the Baroque Period--Anyone who visits the Old City of Leipzig soon encounters the close connection between Bach and the local churches. Indeed, during his 27-year tenure there (1723-1750), he was responsible for the music in the town's four churches. It is no accident that the local museum in the shadow of a major church for which Bach had respnsibilities. His music straddles the boundary between sacred and secular.

But all of this occurred before the presence of national copyright laws and the nearly total secularization of music. I say "nearly", because the connection between music and liturgy is still alive. I had a reminder this past Saturday during the devotional services that are part of the Jewish Day of Atonement. In particular, there is a certain part of the religious service where congregational chanting makes use of a melody composed some 20 years ago by a revered Israeli composer--Yair Rosenblum. Rosenblum made use of a prayer nearly 1,000 years old called Un'taneh Tokef, here, but he composed a new melody to these ancient devotional words. The result was an instant success and today this melody is played time after time over the popular airways, particularly around this time of year.

But not only is the melody broadcast on radio and television. It turns out that it has also become part of the melody for the prayers chanted within the synagogue itself. And in that lies the question--what should be the copyright treatment of this congregational chanting of Rosenblum's popular liturgical melody?

The copyright purist in me wants to treats such congregational chanting as a public performance. If so, and if we assume that the portion of the melody that is typically chanted constitutes a material reproduction of the melody (qualitative, if not necessarily quantitative), what should be the copyright treatment of this performance? After all, I assume that when this melody is broadcast over the radio, the performing station is liable for payment of this public performance to the local collecting society. However, I also assume that no one seriously contemplates seeking to assess the local synagogue for the congregational chanting of the melody. What accounts for this presumed difference in treatment? I am not certain that I have the answer.

1. Fair use--It does not seem that the congregational chanting constitutes "fair use" within the American meaning of the notion. All we need to do is consider the first element of the test for fair use--whether the use is transformative. There does not appear to be any transformation taking place here. The melody is meant to be sung and that is exactly what is taking place. 
2. Enumerated exception--I am not familiar with any explicit exception that covers this situation in those copyright laws that provide for a system of enumerated exceptions (that said, I would be delighted to be informed otherwise by readers.)

3. Implied licence-- "Implied licence", which is really a form of defence that is recognized under the specific circumstances of an action in which it is pleaded. The argument would be that when a composer such as Rosenblum composes a melody that has potential exploitation in the context of religious services, it is presumed that no enforcement of the right is intended.

4. Separation of church and state--In jurisdictions, such as the US, where there is a constitutional separation of church and state, a claim might be made that enforcement of copyright in a house of worship would run afoul of this right. This appears to be a weak argument, however, since houses of worship are subject to a raft of "secular" laws, and there does not appear to be any reason why copyright should be treated in a special manner.

5. Absence of a means of enforcement--It can be argued that, whatever the validity of the claim for copyright based on public performance, there is simply no means to enforce the right under the circumstances. Indeed, any attempt to do so would be against public policy.

6. No public performance--While local copyright law sometimes has construed "what is a public performance" in a manner different from what might be expected based on the natural meaning of the term, the result is usually in the opposite direction: courts find that there has been a public performance in less than intuitive circumstances (such as piping of music from a radio station to a hotel room in the good old days). I find it difficult to fathom that congregational chanting would not constitute a public performance.
At the end of the day, this Kat remains uncertain about the appropriate legal principle to be applied, although he is certain that the local collecting society will not be initiating an action for remuneration against his local congregation.

22 comments:

Andy J said...

Perhaps not entirely relevant to your example in the US, but PRSforMusic operates the following exemption in the UK:
"6. Music used in divine worship

PRS for Music, at its discretion, does not make a charge for music used at a recognised Service of Divine Worship in consecrated places of worship (of any recognised faith), where no charge is made to attendees for admission."
Source: PRSforMusic website/

TOM ANG said...

Perhaps off-topic but entirely not irrelevant either, is the thought that came to me when reading about this interesting conundrum. I was reminded of the invention of the Daguerreotype. To cut to the chase, the French government thought the invention would be jolly useful to everyone, so they bought the rights of the eponymous inventor and gave it to the world, for the greater good. (In sharp contrast to Fox Talbot, across La Manche, inventor of the Calotype and over-energetic IP litigator - but that's another story). So, my thought is: if Rosenblum's tune is so useful (not merely popular) is there not a case for some central body funding the purchase of the rights in the tune for the greater good? Seems to me this would be a just, honest and practical solution. (Though it doesn't solve the problem.)

Pamela Chestek said...

Under U.S. law, section 110 provides that performance in worship is not an infringement:

"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; . . . .

So you're home free in the U.S., for the music and type of service you described, at least. But answer this - does "of a religious nature" qualify nondramatic literary or musical work" or just "dramaticomusical work"? In other words, does the music have to be "of a religious nature" or can it be some other kind? But isn't the definition of "of a religious nature" that it's performed during a religious service? Having listened to renditions of the Beatles' "When I'm 64" and Bette Midler's "The Rose" in church recently, inquiring Unitarian minds want to know ...

Brassic Bhai said...

Provisions of s. 52 of Indian Copyright Act, 1957 can somewhat be utilised to cover such situations.

(k) - The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non paying audience, or for the benefit of a religious institution.

(z) - The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.



Explanation - For the purpose of this clause, religious ceremony includes a marriage procession and other social festivities associated with a marriage.]

Anonymous said...

Within the mainstream English churches (none of which I belong to, but have an interest as a musician) most hymnals and devotional compositions carry the (express or implied) statement that they are intended to be used freely in service, often accompanying the PRS conditions mentioned above. The distinction between service and any other use is quite clear. The main and clearly-stated condition is that only copies which have been legitimately bought are used. It is strange, perhaps, to note the regular chastisements in the religious music press of those of any and all denominations who regularly photocopy works for service use without paying for them; this is literally taking the bread off the author's table which, if we stop to think about it, is the foundation of all intellectual property protection.

Oddly, it seems to me, at least one work of Benjamin Britten which I have (Prelude and Fugue on a theme of Vittoria) has the stipulation (IIRC, it's not to hand at the moment) that it may only be performed in a respectful and non-derogatory manner. I wonder how that could be enforced...

Anonymous said...

Under Danish Law, it is the duty of the individual places of worship to report to the Danish Musics Copyright organisation, KODA a list of all musical pieces performed, sung or otherwise, during religious services. Based on these lists enumeration is payed to any potential rightholders both for the music and for the lyrics. Hence a popular hymn with modern lyrics can be quite lucrative for composer and text writer.

Francis Davey said...

How about the section 29 "private study" exception. Singing (or listening to) a well composed hymn can be an act of contemplation that would within the term "study". Obviously its private to *each* of the congregation even if they are all doing it together.

That's my unconvincing argument of the day.

Ron said...

it is common practice for English churches to make a charge if a recording is made of the wedding service. I had assumed that at least part of this was to cover the PRS/ MCPS performance/recording licence, but haven't seen this explicitly stated.

Re Tom Ang's post, Fox Talbot only patented his invention in England, giving an early boost to the Scottish photographic industry!

While the French government may have intended to give the rights to the world, I understand that a smart operator managed to get a British patent for the Daguerreotype process by filing his application a few days before details were published in the UK. At that time, local novelty applied, and someone other than the original inventor could validly get a patent for something he had imported from "beyond the seas". I was shown a copy of the British Daguerreotype patent many years ago but don't recall the number.

Anonymous said...

The church I worship at has a licence from CCL - see http://www.ccli.co.uk/. Songwriters are seen as being in a ministry role as much as the vicar in a church and this provides a mechanism for supporting them financially

Dr Michael Factor said...

Hi Neil,

I discussed this specific issue with Professors Jeremy Phillips, David Nimmer and Nahum Rakover over supper after a conference I coordinated last June on Intellectual Property in Jewish Law.

In many synagogues over the High Holidays, the Cantor is recompensed for his efforts and donations are made to reserve seats, so I would be inclined to view the service as a public performance.

To compound the Problem, at Jewish weddings, Bar Mitzvas and the like, the Grace After Meals is generally preceded by Psalm 126 to a tune written by Yossele Rosenblat that only recently entered the public domain if one considers years since his passing. For years, wedding bands and singers have been including this in their repertoires in this public paid performance.

May suggestion was that in the New Israel Copyright Law of 2008, a specfic fair use clause should have been included to cover both worship and communal singing, since in Israel, communal singing is a popular cultural activity amongst the secular public, and just about any song written since the establishment of the State, or new melody for a Biblical verse is copyright.

Incidentally, the family of the late Rabbi Shlomo Carlebach who was perhaps the most prolific composer of Jewish spiritual music of the recent era, have specifically related to this issue on thier website, granting a license for live performances.

Regarding Uletane Tokef, the issue isn't merely whether Rosenblum would enforce his rights in the courts, but whether there is something akin to theft adhering to public worship on the Holiest of days.

Ruth Soetendorp said...

11th – 12th century rabbis accepted that the prohibition against stealing and robbing applied also to creations of the intellect e.g. in the popular habit of song theft that also affected Jews. The poet Jonathan Chazak wrote a sabbath song. He was in an inn where a ‘song thief’ sang it. The first letters of each line spelt Jonathan. The wandering singer was passing it off as his own, and ‘thereby gaining much credit’. A dispute arose and Jonathan challenged the thief to explain the acrostic. The thief was embarrassed when Jonathan added the last stanza, which included the lines:
"Let no one move my boundary,
For in the path of song my lot has fallen;
Be wary and do not abuse
The crown of song
With which He favoured me.”
A subtle dig?

Anonymous said...

Of course that only covers music (a) which the copyright owner has given PRS the right to license and (b) is restricted to the rights that PRS has the right to license. I don't know what other collecting societies do.

One may think it odd that using music in an act of worship is not an act exempted from copyright. On the other hand, there is nothing to stop a composer who wants his music widely used in worship from expressly licensing it on those terms. Logically, it is hard to see why someone who has no interest in the religion for which they compose but who creates powerful work should have it expropriated for free. And as the old saying has it, the devil has all the best tunes.

Anonymous said...

In Germany, the collecting society GEMA charges an annual fee for performances in churches or religious societies depending on the size of congregation. For congregations averaging 50-99 people, the fee is €165 per year, (plus VAT at 7%).

rodrigo borges carneiro said...

Dear Neil,

I suppose that if the service is at night the church or congregation has to pay the public utility company for the power and the same in respect to other materials, products and services used and thus I personally see no reason at all to not let the composer collect public performance fees.

If the composer is religious and feel that this would be against his faith or it would not make practical sense for him as the music would not be famous if he started to charge for the congregation performance during religious service (which would latter not let him collect for tv and radio public performance) he can just inform public performance societies that he is withdrawing his right to collect under this situation (this would be theoretically possible in Brazil at least)

The congregation has always the choice to perform music in public domain or to just perform music of composers who would VOLUNTARILY agree to withdraw.

I may burn in hell for saying this but denying payment to the author is against my sense of justice.

Having said that, it appears that I am too radical and others see that this is a clear case deserving an exception.

Therefore, to the best of my knowledge, in the US copyright act there is a express exception for public performance of works in religious services, the religious services exemption codified in 17 U.S.C. §110

17 U.S.C. §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 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...”

A similar exception exists in International convention under the name of “The minor exceptions doctrine” which derives from reports of the revision conferences to the Berne Convention. These reports indicate that besides the explicit provisions codified in the Convention there were “implied exceptions” or "minor reservations".

The dispute before a WTO panel of the European Union and the USA concerning some limitations of the United States Copyright Act which covered certain public communications and transmissions of copyright works provides an interesting overview of the minor exceptions doctrine in Berne and Trips:


http://homepages.law.asu.edu/~dkarjala/InternationalIP/WTO-USSec110(5)PanRep.html


The scope of this minor exceptions doctrine is still controversial but one the examples mentioned in the reports of the Berne Convention revisions is exactly public performance of religious ceremonies.

For a detailed discussion se International Copyrith and Neighboring Rights, The Berne Convention and Beyond. Second Edition. Sam Ricketson and Jance C. Ginsburg, Oxford Press. vol.I, pgs. 830/835. Of particular interest is this passage of the above publication:

"In each case, it is the obligation of every state to ensure that its existing exceptions are actually of de mininis case. Morevover, the charactherization of a use of de minimis may need to be re-examined in light of evolving practices and technology"


Now that the sale of copies of records has declined drastically one can make the case that public performance rights is more important then never to the composer and that public performance in religious services should no longer be considered de mininis.



Please note that the draft of the bill for the revision of the currently copyright law in Brazil incorporates this limitation for public performance of music during religious services.

Best regards,

Neil Wilkof said...

I have found the scope and variety of the treatment of this issue across various jurisdictions, as described in the Comments, to be totally fascinating.

Neil

Dr Michael Factor said...

One more thing, Neil,

The popular (regular Friday night) Ashkenazaic tune for 'Yigdal' - the hymn based on Maimonides 13 Articles of Faith was composed by Myer Leon who a Cantor in the Great Synagogue of Londonn on weekends and an Opera singer, Michael Leoni, in Covent Gardens.

The Methodist Thomas Olivers heard and liked the tune and adapted the tune for the English hymn The God of Abraham Praise.

History does not record (or at least I don't know) if Leon(i) was bothered or not. In the other direction, Lubavich Hassidim seem to have purloined Napoleonic March as their own.

I would be inclined to put these tunes in the public domain.

-Ruth, can you reference your interesting anecdote re Yonatan Hazak? Could be useful

Anonymous said...

At the risk of being boring, I (Anonynous 6:44AM) am now back home and looked at the express declaration which is in all of our books from OUP:

"Permission to perform the works in this anthology in public (except in the course of divine worship) should normally be obtained from the PRS ...

Permission to make a recording must be obtained in advance from the Mechanical Copyright Protection Society MCPS ..."

And, sprinkled throughout the books, "Photocopying of this copyright material is ILLEGAL."

This is typical of English usage across the Christian denominations which is, I'm afraid, the limit of my experience. The worship exception would appear to be by convention rather than by law, but it is sufficiently precise, I think.

Kevin Outterson said...

Copyright applies, but may not be enforced as it would against a bar or restaurant. Some Christian songwriters join the Christian Copyright Licensing International (ccli.com) for collection of royalties for songs sung in services.

Anonymous said...

In Canada, section 32.2(3) states:
"(3) No religious organization or institution, educational institution and no charitable or fraternal organization shall be held liable to pay any compensation for doing any of the following acts in furtherance of a religious, educational or charitable object:
(a) the live performance in public of a musical work;
(b) the performance in public of a sound recording embodying a musical work or a performer’s performance of a musical work; or
(c) the performance in public of a communication signal carrying
(i) the live performance in public of a musical work, or
(ii) a sound recording embodying a musical work or a performer’s performance of a musical work."

Anonymous said...

In fact, Section 21 of the Finnish Copyright Act specifically allows for public performance of a published work in connection with a religious ceremony. Without really having any deeper knowledge of the matter, I would suspect that this may be the case in at least some Scandinavian countries as well...

Anonymous said...

If there is a performance, surely there is an audience. So if the music is sung by the whole congregation (as in the church I belong to) there is no performance.

James Horgan.

Ex Bass Player said...

In the UK a fee has to be paid [MCPS/PRS] in order to perform music at a funeral.

What of the performers on ALL music usage, the musicians, given there is a Phonographic Performance Right [PPR] segment within the MCPS license which surely must encompass the Neighbouring Right?

Ex Bass Player

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