As differing versions of shelter-in-place/stay-at-home orders have gone into effect across the world, churches have found themselves unable to worship together in person. Fortunately, we live in the Information Age where technology has made virtual gatherings accessible to churches of all sizes and locations. Many churches pre-record or live-stream services on social media pages, their own church websites and other online platforms. On Easter weekend alone, an evangelism movement called PULSE and Life.Church’s Open Network platform reported over 200,000 confessions of faith in Christ that were made over the internet without in-person contact. One church I spoke with which has around 100 members and averages 40-50 in weekly attendance for in-person worship had over 500 devices streaming their service one Sunday last month. Harvest Christian Fellowship, a California-based megachurch with 15,000 members spread across five different campuses, reported that over 230,000 devices streamed its service on March 15 (the first Sunday the church ceased in-person services).
While online worship is not without limitations, many churches believe that the ability to engage with a modern culture through virtual worship services and Bible studies cannot be ignored. Even as restrictions on in-person gatherings are loosening in states like Texas, thousands of churches are deciding “if” and “how” to continue online engagement even after they reopen the doors to their buildings. As church leaders consider what the future of online engagement looks like for their respective churches, it is important to take into account concerns involving privacy and intellectual property rights.
Currently, many churches are live-streaming and pre-recording broadcasts with a relatively empty worship center. At the time of the recording or livestream there may only be a pastor, worship leader or team and a technology leader or team in the room. Some may be recording or live-streaming from home without use of a church building at all. However, as churches return to in-person gatherings, those churches that continue to record and live-stream worship services should be cognizant of privacy concerns of members of the congregation. When people appear in public, they forfeit many of their privacy rights.
However, even when attending a worship service that is open to the public, individuals may still have certain reasonable expectations of privacy. An altar call is one example of when someone may retain a reasonable expectation of privacy despite being in public.
As a society, we are particularly protective of the privacy rights of children. As a result, privacy concerns are heightened whenever a minor is involved. Churches that record or livestream should consider taking the following actions to alleviate privacy concerns of church members.
Copyright is a form of intellectual property that allows the creator of a creative work the exclusive right to reproduce, display, redistribute, and make derivatives of the creative work (“reproduce”) and control expression of the idea the work communicates. Copyrights automatically vest in the creator of the content and do not have to be registered in order for the creator to own exclusive right to reproduce the work. However, the creator of the creative work may sell or give the copyrights to another person or business. We refer to the act of someone other than the creator reproducing the creative work without the creator’s permission as copyright infringement. As the creator of the work, churches (or sometimes the church’s pastor under an intellectual property agreement) already own the copyrights to sermons, announcements, prayers, and other similar components of the worship services. As a result, church copyright issues mainly involve the reproduction of music, lyrics, videos, and images.
Understanding Public Domain: Some of the creative works a church may want to use as part of a worship service may not belong to someone else. Some creative works are not copyrightable to begin with, or the copyright for some music, lyrics, videos and images may have expired. Determining the expiration of copyright can be complicated, but generally the copyrights have expired for any creative work created before 1923. Additionally, copyright protection for all works created after Jan. 1, 1978, generally last for the life of the creator plus an additional 70 years. For creative works created between 1923 and 1978, copyright expiration depends on several different factors. “The Old Rugged Cross,” “Holy, Holy, Holy,” “Just as I Am” and “Joy to the World” are examples of the hundreds of hymns created before 1923 that are not subject to copyright protection. The music and lyrics for these hymns may be reproduced by churches without risking infringement of intellectual property rights.
Understanding Licenses: A license is permission by the owner of intellectual property rights to reproduce the creative work. A common source for churches to obtain a music and lyrics license is Christian Copyright Licensing International (CCLI). Similarly, Church Video Licensing International (CVLI) provides a similar source of licensing for videos. Shutterstock is an example of a photograph license where a monthly subscription allows the user permission to use thousands of stock photos. One License and Christian Copyright Solutions (CCS) are other popular choices of church licensing companies.
Spotify and Netflix are examples of personal music and video licensing. Subscriptions to these services allow for an individual to play a song or movie in their home or on a personal device. It is important to note that these licenses are less expensive because they do not cover reproduction in group settings. For example, playing a Netflix movie for a youth group event on the church “big screen” would risk copyright infringement with a personal Netflix subscription. Similarly, the license included with the purchase of a DVD is for personal use and not for public viewing. A CVLI license, however, may include permission to show a movie on Netflix or DVD to a group in a public viewing. Licenses are not without limitations. Here are three important things for churches to remember as they continue online engagement through the reproduction of copyrighted content:
The broader and more inclusive the license is, the more expensive it will be to obtain. Churches will need to evaluate their wants and needs regarding online engagement and balance them with the cost of the license that type of engagement will require. In addition to any licensing agreement, social media websites (Facebook, YouTube, etc.) often have their own rules and requirements for live and recorded broadcasts and churches should familiarize themselves with the terms and conditions of these sites prior to utilizing them.
Understanding Fair Use: Fair use is one of the most misunderstood concepts in copyright law. The mere availability of a video on YouTube or of a photo through a Google search does not give a church the right to download, copy, rebroadcast or record the creative work. Nor is a creative work automatically considered fair use simply because it is used by a church or in an educational setting. The determination of whether the use of a copyrighted work constitutes fair use involves the following four factors: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use upon the potential market.
Determining fair use and, in some instances, public domain can be complex. Obtaining a license is a much safer way for a church to avoid infringing on the copyrights of an intellectual property owner. If a church has questions about a public domain, licenses or fair use, it should contact an attorney that has experience with copyright law (experience assisting churches is preferable).
Avoiding copyright infringement is both a moral and ethical obligation, but it is also a legal obligation. Social media sites like YouTube and Facebook are cracking down on infringing content. At a minimum, infringing content will be muted or removed. This could cause great frustration to a church that spent a great deal of effort in recording a broadcast or has its live-stream shutdown mid-worship service. If the creator of the content finds out about the infringement, however, the consequences could be even greater. A creator that discovers a church using his or her creative work without permission may send a cease-and-desist letter or a demand letter. If the demand is not met, a lawsuit could result, even if the infringing content has since been removed. Sometimes there is a delay between when the infringement occurs and when it is discovered. However, computer programs scour the internet looking for infringing uses and often alert the copyright holder’s attorney automatically when a violation is discovered.
In the past, this may have been a topic that some church leaders would prefer to ignore. However, in my personal experience, there has been an increase of demand letters and lawsuits against churches for copyright infringement. If a church has infringing content online, now is the time to remove it. For example, a copyrighted photo on a church website which includes a photo that is attached to a bulletin, discussion guide, sermon notes, etc. (these are increasingly being uploaded to church websites so church members can stay engaged with the content) should be removed immediately.
Attorney John Litzler directs the church law division of Christian Unity Ministries in San Antonio. He also serves as a BGCT legal consultant to assist Texas Baptist churches in understanding various legal issues.
Disclaimer: This article provides general information and a general understanding of the law and does not constitute specific legal advice. By utilizing the Texas Baptist website, you understand that there is no attorney/client relationship between you/your church and the author or between you/your church and the Baptist General Convention of Texas. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state with the specifics of your situation.