COPYRIGHT & FAIR USE FOR CHURCHES
Hello church leaders! We know how confusing it can be to try and figure out what’s legal and what’s not concerning playing music, videos, and other media in your church environment. Well, we’re here to help!
Before we go any further this is probably the right time to say we are not lawyers and this is not legal advice. But in our research for this post we talked to multiple different lawyers that work within the entertainment and copyright space (some representing professional recording artists and even one on the board of the Grammys). We feel very confident that information and opinions we share below align with current US law. But of course, we recommend talking to your own legal counsel if you have any further questions as courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry.
What is “Fair Use”?
The question often pops up in Facebook groups or other discussions when it comes to playing music or videos in our church environments… “Is it ok if I use this?” We are here to help you answer that question. The legal concept we’re talking about here is, “fair use,” which describes your ability to legally use copyrighted materials without payment or specific permission. Here is an excerpt about Fair Use from copyright.gov
“Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”
Fair Use for Sermon Illustrations
In the United States, works of commentary, criticism, research, teaching, or news reporting may be considered fair use. For our purposes as church leaders, the most common “work” we produce are sermons and teaching lessons. So when considering if we can use copyrighted material fairly, we need to consider how we’re using it. In the opinion of the lawyers we talked to, every single one of them agreed that sermon illustrations fall under “comment”, “teaching”, and even “criticism” depending on how the illustration is presented. So right off the bat, all signs point to sermon illustrations qualifying for potential Fair Use. But, beyond those qualifiers of “comment”, “teaching”, and “criticism” there are 4 more factors to consider:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
So let’s start with #1. According to copyright.gov here’s what to consider about the purpose and character of use… “Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit, educational, and noncommercial uses are fair.” So that’s great news for church leaders, sermon illustrations are all three – just be careful about using copyrighted material if you are selling your sermon videos or audio.
Now let’s look at #2. Any work can qualify to be used under Fair Use, but certain items are looked at more strictly, for instance if the work you’re using is already being sold for educational purposes.
For #3 borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. We recommend only using short clips from movies, songs, videos, or shows – just enough to make your teaching point or add to the commentary or criticism you’re making. You cannot show full length videos or episodes or full songs.
And for #4 uses that harm the copyright owner’s ability to profit from their original work are less likely to be fair uses. That’s also great news for church leaders since what we’re showing as short sermon illustrations usually won’t hurt sales of the original work.
Like we said earlier we aren’t giving legal advice here. But based on all of our conversations with lawyers and the extensive research we’ve done, we believe these are considerations all church leaders in the US can safely follow without breaking the law, and properly following Fair Use guidelines…
- Playing a short excerpt from a YouTube video, TV show, movie, or song as a sermon illustration. Be sure to use the clip as a teaching point, commentary, or criticism. And be sure to keep the clip as short as possible.
What’s Not Allowed:
- Playing a a full movie, song, or episode.
- Playing a full worship song lyric video from YouTube during your worship time without the creator’s permission.
- Playing a copyrighted work as entertainment only. You need to be using it for teaching, commentary, or criticism.
Performing and Broadcasting Music
The pandemic may have increased your ministry’s online presence and caused you to focus more attention to streaming your gatherings and worship experiences. One of the conversations you may have been having as a result of more online exposure is probably related to licensing rights for using copyrighted music. Here are some basic things you should know, a church cannot . . .
- Broadcast (online or otherwise) the performance of a copyrighted song
- Broadcast the lyrics to a copyrighted song
- Record the performance of copyrighted music
- Rebroadcast music or videos created by others without a license from the owner.
The great news is that there are solutions readily available to help you easily get the licenses you need to play the music you want to play, this week!
Most churches use sources such as CCLI, CVLI, CCS, or One License to obtain the licenses needed to perform and/or broadcast copyrighted songs. These services will take care of the legal documents you need to ensure your ministry’s right to play the music you want to play, this week!
You probably already pay a monthly subscription to Spotify or Apple Music and you love it. You’ve discovered great new music and kept yourself motivated on sleepy Monday mornings thanks to this wonderful app. So naturally, you’d like to use an app to share music and set the tone in your ministry setting . . . that’s okay, right?
In short, it is not legal to use a service like Spotify, Apple Music, or Pandora to stream music in your church, even for background music.
If you pay a monthly fee to a company like Spotify, the account you have is designed strictly for personal use and is not intended for a business nor for public consumption. That means your account doesn’t include a “Public Performance License.” You probably didn’t face any consequences for playing that playlist, but that doesn’t mean you’ll be safe from potential future problems should you choose to continue playing music this way.
Believe it or not, the same is true for songs you have purchased and downloaded from iTunes or other sources.
The most common, affordable, and legal solution to this problem is to purchase a business to business music service. Subscriptions start from $16/month for each location and these business to business services will handle all of the licensing paperwork on your behalf. These services will create “stations” or playlists for you that you can use completely legally and never have to second guess if you might find yourself in trouble for playing music in your environment.
In fact, there is a new service associated directly with Spotify called Soundtrack Your Brand. You can check them out here (https://www.soundtrackyourbrand.com/spotify-business) for more information about how you can use their pre-made playlists or import your Spotify playlists and play all of the songs you will have legal access to play. This service also allows comes with an explicit language filter and some very user-friendly scheduling options. Check them out today and start creating your own fun, energetic, and perfectly legal-to-use playlists!
Determining what you can and can’t play in your church environment can be tricky, but if you follow the suggestions above, it should keep you legal and following standard Fair Use guidelines. But of course, if you have any doubts you should talk to your church’s legal counsel. We believe using short clips from YouTube, movies, etc for sermon illustrations fall within Fair Use the overwhelming majority of the time, but playing a full movie or even streaming Spotify on your campus is actually illegal and should be avoided.