Hitting Sour Notes: The Clash over Music Copyright

Publishers fear modern technology has made every church a printing plant.

Few subjects generate more heat in the music industry today than the question of copyright use and abuse. Moreover, few subjects are stickier. The question is one on which nearly all musicians, and many nonmusicians, have an opinion, and sharp disagreements arise because it is debated from opposing sides of the musical fence. Consumers—all of us who use printed or recorded music in any form—tend to view music publishers as growing rich on exorbitant fees they extract from the musical public dependent upon them. Publishers, on the other hand, suspect there is a photocopier or tape deck hidden in every consumer’s hip pocket, cranking out endless illicit and illegal paper and electronic copies of popular songs.

When the controversy takes up residence in the church, it moves beyond mere legality. Suddenly morality, ethics, and even spirituality, become part of the problem. Are Christian music publishers really defrauding the church, hiding behind the language of U.S. copyright law and taking unfair advantage of congregations, choirs, and individual Christian musicians? Or are churches and para-church groups, and the performers within them, the real culprits, creating instant hymnals and music libraries with the aid of overhead projectors, photocopiers, and tape recorders? Someone has rightly characterized the tension between the publishers and congregations as “a struggle between those who want to make a profit and those who want to get something for nothing.”

When CHRISTIANITY TODAY published a short opinion article earlier this year (“God Gave Me a Song: Copyright Restrictions Took It Away,” CT, Feb. 18, p. 86), many readers wrote expressing their views. Some people said, in effect, “Right on!” Author Marcus Bigelow persuasively described a problem he encountered when he wrote to several church music publishers. He had asked their permission to reproduce the words to some popular choruses on overhead projector transparencies for congregational singing. “The responses,” Bigelow wrote, “brought stipulations that, for the most part, were prohibitive. Companies asked us to pay them royalties of from $5 to $20 per song.”

The transparency- and slide-making question is a growing problem within the industry and a perplexing one in many churches. And it is but the tip of a very large iceberg. Further questions surround printing copyrighted words of songs or hymns in church bulletins and orders of service for weddings, on mimeographed or printed songsheets, and even in short quotations in religious papers and magazines.

Duplication of printed music by photocopier or similar means adds another dimension, and it is a process to which tons of octavos (printed choral music), hymn- and chorusbooks, instrumental parts from orchestrations, and sheet music are all regularly—and illegally—subjected.

Copying recordings onto blank tapes is still another part of the problem, as is the illegal duplication of “tracks,” those readily available and expensive tapes that provide recorded instrumental accompaniments for soloists and choirs. Even playing records of copyrighted songs on for-profit Christian radio stations that do not purchase an ASCAP license to do so is part of the larger problem, and the subject of litigation.

Any one of these issues move many music publishers close to the point of rage. A sizable segment of the music-buying public, on the other hand, has grown weary of paying the escalating costs charged by publishers for increasingly sophisticated materials, and feels caught between the proverbial rock and a hard place. Large numbers of Christians do make every effort to be honest, ethical, and legal in their use of copyrighted music, though there are still some who are ignorant of parts of the law and often unwittingly make illegal use of musical materials. Yet, there are others who have concluded they are being “ripped off” by fellow Christians, and they knowingly break the law, having decided they have a right to do so. There are even some religious-music consumers who believe sincerely that any gift from God must be shared with fellow Christians free of charge; therefore, restrictions or prohibitions of any kind, legal or otherwise, cannot be applied. In an attempt to bring the question into sharper focus, and as a follow-up to the earlier article, CT listened to musicians, music publishers, and attorneys familiar with copyright law. What follows is an attempt to clarify some of the specific issues.

The Transparency Argument

Reproducing musical lyrics on transparencies and slides usually boils down to how congregations are to learn newer, and popular, songs that are not printed in even the newest, most comprehensive hymnals. Where people were once taught new songs by rote, today’s technology has by and large changed that practice. Overhead projectors, initially acquired by many churches as a teaching tool, were found capable of serving several purposes, so many congregations began to use them to display the words of new songs. It was probably a natural step in churches whose pastors were already using the overhead in their preaching ministry: the equipment was instantaneously available for other uses. In the beginning, few people worried about copyright infringement. After all, the songs were merely being projected as a convenience and help to the congregation.

Today, consumers and publishers have one of their bitterest disagreements over what the copyright law actually says about those transparencies. In fact, the Copyright Revision Act of 1976, in effect since January 1, 1978, may have muddied the waters on this score, although it was designed to clarify and update the older statute. Portions of Section 110, “Limitations on exclusive rights: Exemption of certain performances and displays,” are usually invoked when the subject is discussed:

Notwithstanding the provisions of section 106. the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or place devoted to instruction, unless … the display of individual images is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made; …

(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.…

Attorney Thomas E. Smith of the Chicago firm of Lee, Smith & Jager told CT that while section 106 of the statute states that the copyright owner has the exclusive right to make copies of the copyrighted work, section 110 (including the portion quoted above) sets forth certain limitations on the exclusive rights, and in essence gives exemptions. He reads (3) above as one activity “which is not an infringement of the copyright” when “the performance, or display, is in the course of services.’ ”

“In my view,” says Smith, “the making of a transparency could reasonably be considered to be part of the display or projection process.”

Similar beliefs were expressed in letters received at CT, including one from a reader who obtained two separate legal opinions concerning the making of one transparency of each of 50 songs for projection at sing-alongs where no admission is charged. The two lawyers agreed that “there is not a violation of copyright laws” according to the paragraphs quoted from section 110.

At this point, one can almost hear the music publishers shouting, “Stop! That’s not true!” The question, they say, is what is meant by “lawfully made” copy. They contend it gives only the owner of the copyright—in most cases the publisher—the right to make a copy, or to give permission (with or without a fee) for someone else to make one.

In attorney Smith’s opinion, however, it is reasonable to interpret section 110 (3) as exempting both performance and display of religious music “in the course of services at a religious assembly even if in producing that display, a transparency has to be made.” That reading is far from definitive. Smith is quick to point out that he is unaware of any decisions “with respect to this precise point,” and that his own opinion is based upon the legislative history of the current copyright law. (It should be obvious that the exemption would not apply if the transparency were used to make other copies, or given or sold to someone else.)

If, on the other hand, the publishers are correct, they are right to insist that only they as the copyright owners can grant permission for transparencies to be made. (It might be pointed out that there are opaque-type projectors that allow images to be shown directly from the original source, though, as Smith observes, “this would not seem to be a satisfactory mode of display for large gatherings in a religious service.”)

But debating the legal question is not enough. Even if Smith’s interpretation is someday found in a court decision to be correct, does it really mean the publishers are practicing fraud when they insist on granting permission? Are they in truth charging fees to which they may have no right? And does it give churches a broad license to do what they please in the matter? We need to look at some other factors.

The Costs And Ethics Game

For another perspective, CT turned to Donald P. Hustad, currently professor of church music at Southern Baptist Theological Seminary in Louisville, Kentucky, and senior music editor for Hope Publishing Company—a dean among American church musicians. Hustad points out that copyright law has applied to hymn publishing since the early nineteenth century. Hymnals contain a large amount of copyrighted material, some controlled by the publisher and some for which he paid royalties to other publishers. When churches buy hymnals, they are paying for permission to use the copyrighted material contained in them. “Why should they not do the same for songs that appear later and are not a part of their hymnal?” Hustad asks.

Kristine Van Driest, a CT reader in Adams, Wisconsin, responded to the earlier article and expressed the opinion that charges of from $5 to $20 per transparency are quite reasonable: “For a congregation of 200, that is only 4 to 20 cents per person. If the song isn’t worth this much, perhaps it shouldn’t be used for worship at all.”

About those charges, Hal Spencer, president of Manna Music in Burbank. California, and a past president of the Church Music Publishers Association, told me his relatively small company now employs one person full-time just to handle the multitude of permission requests; sometimes a single request can require as much as an hour of that person’s time. The administrative costs represented in the flat fee charged just about break even, he says.

But beyond that, there is the consideration of royalties owed to the songwriter or composer. The transparency, or any other type of copy, is actually substituting for the printed form of the song, which is copyrighted. It is that form on which the compensation or royalty for the words, the music, and often the musical arrangement is based.

A fairer way to set transparency fees, Spencer thinks, would be to prorate them according to the size of the congregation requesting permission to make the copy, and the number of hymnbooks they would normally purchase.

There are some ethical considerations that churches need to face. For example, many newer congregations are less tied to a traditional type of service, having discovered that singing is more spirited and services move at a quickened pace when worshipers are not turning pages and don’t have their heads buried in a book. Some have nearly eliminated the use of hymnals, though they may not be trying deliberately to cheat publishers—who are quick to point out that the sales of hymnals are down. (There are other factors, of course; summer church camps, for example, rarely buy new songbooks anymore.)

But what are we to think about churches that have stopped using hymnals and instead project the words of every hymn or song they sing—yet refuse to obtain permission or pay a fee for the privilege of using a mode that merely substitutes for books they would have purchased in an earlier day? Furthermore, that question does not even address the problem of what happens to the integrity of the music when congregations are given only the words to read. One wonders how many transmutations of “He Is Lord” or “Jesus in the Morning” are being sung, for instance.

According to Spencer, some churches now have fully automated systems to show projected texts. When the song-leader pushes the right buttons on the pulpit, the hymn or song is instantly projected from a number-keyed projector. He predicts it will not be long before a projection system is installed for the choir, showing words and parts on the conductor’s stand, thus dispensing with printed pages altogether and giving the choir director the nearest thing to eye contact with every singer.

Modern technology is wonderful—but can we justify using it to engage in questionable ethics or break laws and, worse, to break faith with fellow Christians who are in business? “Submit yourselves to the Lord’s sake to every authority instituted among men,” says Peter (1 Peter 2:13, NIV), and that surely includes copyright statutes.

Reprinted, Recycled Songs

Some churches that have not gone the transparency/slide route have found another way to zero in on just the songs they want to sing: they print them. Words, with or without the music, are appearing increasingly in the Sunday bulletin. And an alarming number of churches are creating “home-made” hymnals by using the photocopier or offset press to compile books or booklets of songs from a variety of published sources. They end up with what Spencer describes as something no publisher could possibly provide; a “perfect hymnal”—one that is custom made for a single congregation.

Don Hustad also commented on this, saying he recently picked up a Xeroxed hymn booklet in a wealthy, “liberal” church in a suburban Ohio city, one that regularly sings from the Pilgrim Hymnal. He reported that the pamphlet contained 41 gospel songs, folk hymns, and new popular forms, 31 of them under copyright protection. “There was not one notice of permission in that book,” said Hustad, “not even one acknowledgement that the material was copyrighted,” adding, “I have difficulty believing that no one in that congregation understands that this is larceny.”

There is a reason why music publishers are concerned almost to the point of paranoia over the copyright problem. Under the pre-1976 law, a copyrighted song printed and distributed without the proper notice risked being placed immediately into public domain, for if the publisher learned of the existence of the copy he was considered a “party” to the undocumented use. Though the new law went a long way toward addressing the problem, giving copyright holders five years to correct the situation, publishers are understandably nervous whenever the words to a copyrighted song appear somewhere without that notice.

The problem, says Spencer, is that “this is an easy law to break, and what is easiest to break is broken first.” Hustad thinks the public seems to feel that a new, tough restriction has been placed on their liberty, when in actuality the questions never arose until every office had the equipment that made it a printing plant.

Paul Wohlgemuth, coordinator of church music at Oral Roberts University. once wrote in CT that it is “mystifying that such illegal practices are so blithely tolerated while at the same time churches are very scrupulous about paying for utilities, Sunday school materials, and the pastor’s services” (CT, June 27, 1980). Indeed. But no one wants to sit in a dark building, forgo curriculum aids, or lose a minister. The musicians and the publishers can’t attach a church’s assets or cut off services for nonpayment: their product is already out there in the marketplace. In reality, they cannot stop a choir director from buying one copy of a new anthem and then making a dozen or more additional copies on the church office copy machine. (Ironically, that process often costs more than it would to buy the music. The seven or eight cents or more a sheet that it costs to make each copy is usually “hidden” in other office expenses, so the culprit mistakenly believes the music is costing him little or nothing. According to an article in the June 1983 newsletter of the Music Publishers Association, “Ultimately, this means that composers are forced to write only in those areas which are least subject to photocopying. Publishers are forced to put more and more music out of print. Print runs are continually reduced because of falling sales due to photocopying, and as a result, the cost of printed music continues to rise.”

Neither have publishers any control over someone who borrows a piece of music, or a record, to make a personal “free” copy. To be sure, it is convenient. But it is also wrong: it deprives the publisher/copyright owner, and often the songwriter or orchestrator, of his principal source of revenue.

Hustad says he has a hard time believing it is impossible to find a contemporary “mini-hymnal” that would contain most of the songs a church wants to sing. He acknowledges it takes time to check them all, but that “there are scores from which to choose.” A really creative church could look for friends or members to write new music for that group’s specific needs and use, he adds. “Then they could print them exactly as they want—and even join the company of those who have music to copyright and sell!”

One congregation that is doing just that is Church By the Way in Van Nuys, California. Pastor Jack Hayford, an accomplished hymn writer (“Majesty”), prints his songs in the bulletin for congregational use. He also similarly used music written by Jim and Carol Owens during the period they were members of Hayford’s congregation.

Most publishers are willing to bend and seek the best ways to accommodate the churches. Few, if any, charge a church that wants to print the words to a song in a bulletin or similar “throwaway” sheet; they do insist that the quotation carry the correct copyright information, and usually want copies for their file. Hayford feels publishers are mistaken if they fear music won’t be purchased if the lyrics are printed in bulletins.

Publishers are usually also willing to work out an arrangement whereby out-of-print music can be duplicated. Policies differ, and a fee may or may not be charged if a choir director is given permission to reproduce a piece he or she can no longer purchase. Many publishers will allow the music to be duplicated as long as it carries a specified copyright and permission line and is done with an understanding that the copies will be destroyed if the music is reprinted later.

Prices, Profits And Royalties

The music publishers are not without fault, of course. They, along with any entrepreneur, look for ways to make their business more profitable. One choir director friend told me he will no longer purchase choir music—octavos—that is bound in colored covers with elaborate artwork. Publishers may insist they charge only for the actual pages of music, and that may be true. But if they believe a bright, beautifully designed cover screams “buy me” to a harried choir director thumbing through piles of new music, they will make sure it is included whether it is needed or not. And the cost has to be absorbed somewhere, whether it is actually part of a per-page charge or not. I have a feeling most choir directors really only care about what is inside the cover. Their criteria for selection are usually based more on such things as the level of difficulty of the music, the theological soundness of the text and its appropriateness to their particular ministry, and the singability—not on graphic design and colored ink. And what happens when every cover is brightly designed? It just could be that then it is the plain, black-and-white piece that stands out.

It is also true that several large music publishing empires are awesome. Though the cost of their products may be tied to such things as escalating prices of paper and other materials, increasing royalties in inflationary times, and the high cost of recording, printing, and necessary overhead—including salaries—one does wonder why, for example, publishers will insist on marketing a children’s cantata only in a $3.95 book that contains a full score when the music calls for the children to sing just a melody line. A small church with a meager budget for music doesn’t deserve to have to pay premium prices for what it doesn’t need. There is such a thing as overkill. Also, as noted in an interview with Norman Johnson in the last issue of CT (Refiner’s Fire, p. 79), we are living in an era when contemporary songwriters try to write both words and music—“too often merely to control royalty fees.” The public’s perception of the music industry as merely big business is not entirely without basis.

Also, publishers need to be more sensitive to the people they serve. Another CT reader, Joseph Nicholson of Springfield, Missouri, complained that his own experience when corresponding with publishers concerning copyright “revealed an astonishing level of insensitivity, imperception, and inefficiency. Personal letters were answered with form cards; letters were sent ‘stamped’ with the signature of the company official.” Time pressures, insufficient staff, and related problems could explain some of that, but not Nicholson’s final complaint that “specific questions and requests were left unanswered.”

Still, as Don Hustad says, there is a mistaken notion going around that the music industry is filled with wealthy hymn/song writers and publishers, who are fleecing the church unfairly. He says, “Most songwriters (there may be exceptions in evangelical circles) receive modest returns from their creativity, and I see a lot of publishers in financial difficulty. It is the ability to publish and sell copyrighted material that is the lifeblood of the music publisher. If other companies can publish his material for their own profit, or if a church can duplicate it to bypass purchasing the music, he will soon be out of business and there will be no new music to worry about. And what of the hymn writers who do not perform or make recordings? Are those persons—like Margaret Clarkson, author of many hymns, including ‘We Come, O Christ, to Thee’ and ‘So Send I You’—to have no compensation for their work?”

Some publishers are trying to find new, creative ways to meet the problems. After Marcus Bigelow’s article appeared in CT last February, Word Music, one of the larger publishers, went to work on producing an Electric Hymnal. It enables anyone to purchase a multimedia kit that contains three printed copies of a song, a legally made transparency and set of slides, and an accompaniment tape. Not everyone will appreciate or need the accompaniment tape, and $12.95 per song for each kit may seem a bit steep to those unaccustomed to thinking in terms of prorating costs according to the number in the congregation or hymnals purchased. Other publishers are planing their own versions, though some are waiting to see how well Word’s idea—and the transparencies—sells. The Electric Hymnal already contains 17 titles with 8 more on the way, including 5 Christmas songs. It is one creative approach, and the kind of thing the industry will increasingly have to consider.

Perhaps the most unfortunate part of the problem is that there is so much misunderstanding. Publishers need to learn what the church public’s “hot” buttons are, face the fact that modern technology has ushered in a new day in terms of the way things are used, and try to meet genuine needs quickly and without excessive commercial “hype.” But church leaders, and their music directors and congregations, need to make sure they are behaving Christianly toward the people who make the music available. More self-policing is mandatory, for the odd borrowed copy of printed or recorded music run through any kind of duplicator finally hurts everyone. We consumers will face continually increasing costs until we learn that in the price we pay we are only making up for our larceny, which has been robbing writers and publishers for years while we have substituted something illegitimate for something legitimate—no matter how one interprets copyright laws. And, after all, as Christians whose chief end should be one and the same—the glory of God—that, plus ethical conduct, not mere legality, ought to motivate our actions and our behavior toward one another. When that attitude cuts both ways, we will have come a long way toward mutual understanding and cooperation.

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