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A church records their service on audio. The service, open to the public but behind the closed doors of their building, is performed before a live audience who voluntarily attend. The church then sends out a copy of the recording to paying subscribers around the world.

The recording includes announcements, speeches, prayers, musical and theatrical entertainment, and a sermon all of which I would assume are copyrighted by the church entity since it is their employees and volunteers who made and produced it. Likely everyone who contributed gave consent to record their work, except perhaps members of the audience who were distinctly asked to pray out loud for the group's benefit.

Also included is the singing of gospel songs by the audience. The audience is prompted and led by a song leader who is possibly accompanied by a piano player on some or all of the songs. Assume the piano player is a paid employee.

My question is: Is the singing by the audience copyrighted as part of the larger or complete work?

Probably in the same category: Are the prayers solicited from the audience also copyrighted?

The question seems unclear in this regard: It is highly unlikely that the church asked any member of the audience for their permission to record their singing much less to distribute it. Assume they did not. No audience member signed a waiver granting the church copyright permission over their vocals, foot-stomping, or hand-clapping.

To further muddy the waters, some of the songs sung by the audience may be copyrighted while others are in the public domain. I assume the audience's singing is about common for a diverse group - so not necessarily "original" or "creative".

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    The normal terms for the people attending a church service are "congregation" rather than "audience" and "congregants" (or "members of the congregation") rather than "members of the audience."
    – phoog
    Aug 1 at 21:10
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    @phoog: never heard of "congregants." Sounds like "miscreants!"
    – posit
    Aug 1 at 21:12
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    If there is some legal distinction between a congregation and an audience in this case I would like to know what it is.
    – posit
    Aug 1 at 21:19
  • A congregation is a group of members who are participants in a service, vs random, non members of an audience, simply observing an event.
    – Michael Hall
    Aug 2 at 3:34
  • @Mike - The church entity has no membership. It has some employees and volunteers working for them. The audience is autonomous, like-minded or interested people gathering together of their own volition. The Copyright Act uses the word "assembly" for religious service exemption. People assembled together to witness and enjoy something are frequently called an audience. Some of them will show absolutely no signs of "participating". You've just introduced new words (random, non-member, participants) that make no legal distinction at all, as far as I can tell.
    – posit
    Aug 3 at 5:38

2 Answers 2

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Assume first that the composition is still protected by copyright. Only the author can authorize public performance of the work. Everybody is an infringer if they don't have a license to perform the work. Now assume that the music director secured a performance license. Then you look at the terms of the license to see whether it is allowed to record the performance; and if it is allowed, it is allowed without restriction, or only for non-commercial purposes. If the composition is not protected by copyright anymore, then it can be recorded. The person who creates the recording (putting it in fixed form) hold the copyright to that particular work (the recording). Copyright law relies on the undefined concept of "author", which as the courts say is a "question of fact". An author originates or "masterminds" the original work, controlling the whole work’s creation and causing it to come into being, which is not the case with a member of the choir. More likely, the music director and sound engineer create and hold copyright in a joint work.

We might assume that some of the sermon was written down in advance, which is to say that it has a fixed form, but that's far from assured; at any rate, the preacher can also conspire with the engineer and music director to create a joint work, where the engineer's contribution is putting the work into fixed form.

So the transitory singing of the choir is not protected by copyright (it literally can't be copied), but the recording of a choir and sermon is protected by copyright, and the copyright is owned by the people who originated or masterminded the recording. Probably not the choir.

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  • The question does not pertain to the choir, but the audience. I assume the choir's performance is part of the church entity's work, part of the "musical and theatrical entertainment" aspect. The audience's singing is not a product of music production and sound engineering. It is independent people, the audience, making joyful noise in a somewhat concerted effort. Nothing professional about it.
    – posit
    Aug 2 at 0:17
  • Also, how determine you that the audience is "publicly performing?" They just singing for the joy of it, and because there is a coordinated, well-understood tradition of doing it together. The song leader is there swinging his arms and hands to assist in coordination.
    – posit
    Aug 2 at 0:42
  • Off-topic: I also doubt the church entity holds copyright to their performers' work without express permission granted, assignment via written contract. I don't see how the entity "masterminded" anyone in the choir's performance, and certainly it didn't have absolute control over it. Otherwise there would be no sneezing or coughing, ever.
    – posit
    Aug 2 at 0:55
  • Additionally, how does "masterminding" a recording of people singing grant a copyright? An audience member recorded the exact same thing. He had a note pinned to his lapel that said "recording in progress", and he held his mic out for all to see. It would be difficult to detect any differences in the two recordings. In fact, the audience member's recording may be of superior quality since he was in the midst of the sound. Does he now also have a copyright? Are there now two copyrights to essentially the same thing?
    – posit
    Aug 3 at 1:31
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    @posit the people singing the song are by definition performing it, whether they do it for joy or otherwise. Whether the performance is public depends on a few factors, but a performance in a church service that is open to the public is generally a public performance. "singing from a songbook by people in a church gathering to bless themselves and one another is not copyright infringement": that doesn't mean that a recording of the singing is also not infringement.
    – phoog
    Aug 3 at 15:33
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There is copyright in the recording (probably)

The person who first fixed the material in a tangible form owns the copyright. Presumably, whatever legal entity the church is, as it was made by a volunteer as a work-for-hire. That is because they were the ones who fixed it in tangible form. This is why journalists own the copyright in interviews they make with subjects.

The copyright in the performance is a separate copyright from any that might exist in the composition. If the recording violates the composer’s copyright (e.g. the church did not pay the required statutory royalties to perform the songs), then there is no copyright in the recording, and the composer can sue the church for making it. There is no copyright in works that violate another's copyright.

Making an audio recording without permission is a crime

This is totally unrelated to copyright, but in most jurisdictions, you need the speaker’s permission before recording their voice. If the recording is obvious (e.g. a microphone in your face or a big sign saying services will be recorded), then permission can be implied - by knowingly speaking while you are aware you are being recorded, you have consented to the recording.

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  • Are you stating that the church entity owns the copyright to the recording of the audience's non-choreographed making of a joyful noise or public prayer? The church did not perform or produce the songs in question, they merely recorded independent, autonomous people gathered together in their building who sang the songs or prayed.
    – posit
    Aug 2 at 0:24
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    I also doubt your premise that "permission can be implied" just because a sign says recording in progress. Please quote statute and jurisdiction. I've never actually seen such a sign, but I'm sure they exist in places. What a damper they would put on enthusiasm! Except for those who fancy themselves a part of some theatrical production.
    – posit
    Aug 2 at 0:37
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    Oh my goodness. Of course there are additional burdens. The work must be unique, original, "creative" as they say. Otherwise every word, sentence, and saying would be immediately copyrighted in the US. That's just a start. "Go ahead, make my day" is not copyrightable. I haven't infringed someone's protected right to that statement.
    – posit
    Aug 3 at 13:43
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    "Each is a joint author" - that's ridiculous. No-collaboration joint-authors. Might as well say "The owner of the copyright...owns the copyright." I have my doubts about your credibility.
    – posit
    Aug 3 at 13:47
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    "a microphone in your face": lots of churches use amplification. The presence of a microphone in such a church does not imply that the audio is being recorded.
    – phoog
    Aug 3 at 15:28

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