Over the past several months, as differing versions of shelter-in-place/stay-at-home orders went into effect across the world, churches found themselves unable to gather together for in-person worship services. Fortunately, this is the Information Age and a time where technology has made virtual gatherings accessible to churches of all sizes and locations. Many churches have begun prerecording or live streaming 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).
Streaming and broadcasting recorded worship services online is not without limitations. Even so, many churches believe that the ability to engage with a modern culture through virtual worship services and Bible studies shouldn’t 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 the 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 take into account concerns involving privacy and intellectual property rights.
Currently, many churches are livestreaming and prerecording 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 livestreaming from home without use of a church building at all. However, as churches return to in-person gatherings, thosechurches that continue to record and livestream worship services should be cognizant of privacy concerns by 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 alter 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.
- Obtain informed consent. While it may be impractical to obtain written consent in every situation, there are some situations where written consent is reasonable. The key is “informed” consent. Consider placing signs at the entrance to the worship center that notify attendees that the service is being recorded. Remind worship leaders, (choir, instrumentalists, etc.) that they are being broadcasted. Church leaders often meet with individuals prior to a baby dedication or baptism. This meeting is a good time to remind those individuals that the church normally records or livestreams the service and obtain their permission before doing so.
- If livestreaming or recording services is new for your church, make an effort to be extra communicative about that fact the first couple of weeks. Pastors and staff should consider making the announcement at a convenient time throughout the service “if you’re joining us from home/on social media…” at the beginning of the service, during a greeting time, or during announcements. Consider the effect that knowledge of being on camera might have with the worship experience and balance those concerns with the desire to allow those not physically in the building to participate in the worship service.
- Realize not everyone can or wants to consent. For example, for safety reasons, foster children are not allowed to be depicted on social media. The church needs to be aware that a foster parent cannot consent to a foster child being part of a children’s choir or children’s sermon if it involves the child’s face being broadcast on social media. Another example is a victim of domestic abusewho may not want a current or former significant other to know his or her location. Churches should consider contingencies for these situations including not broadcasting the portion of the worship service where children are on camera and/or providing a known section of seating that will never be on camera even if the cameras are panning the congregants during worship.
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 while the copyright for some music, lyrics, videos, and images may have expired. Determining the expiration of copyright can be complicated, but generallythe 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 a 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’s 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 only 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 this for churches to remember as they continue online engagement through the reproduction of copyrighted content:
- Licenses do not include permission to use all music, lyrics, videos, and images. While most video and music licenses have an extensive database of titles, the database still may not cover all of the songs or movies a church would like to display. A church should check to make certain their license covers a song or video it wants to use before reproducing it. It should also carefully read
- Not all licenses allow for “streaming”. There is a difference between a standard license that allows the church to recreate music and lyrics and a streaming license. Under a standard license, churches can display song lyrics on a projector screen. However, a streaming license is required to perform the song on a social media platform like Facebook Live or YouTube. Even within streaming licenses there can be different categories (and costs). For example, a streaming license that allows for the recording to stay up after the worship service is concluded will be more expensive than a streaming license where the reproduced work is removed from the website at the conclusion of the worship service.
- The cost of a license for a church (whether a one-time event or a subscription) often increases with the size of the congregation or audience. This is true of other licenses as well. This is why an individual pays less to watch a movie or sporting event at home than a movie theater or sports bar pays to offer the same viewing to hundreds of people. As previously mentioned, the institution of stay-at-home orders has caused online engagement with churches across the world to explode. While a church may have only averaged 100 attendees for in person worship services in January and February, that same church may have over 500 viewers for online worship with a live streamed or recorded broadcast. Churches reaching a larger number of people is wonderful news, but as the audience grows, so does the cost of a license. Churches will need to continue to monitor the size of their online audience after returning to in-person gatherings to determine if a license for a larger audience is needed.
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: 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 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 livestream 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, including 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, before the infringement is discovered by the copyright owner.
Disclaimer: This article in intended to provide general information only and does not constitute specific legal advice. There is no attorney/client relationship between you/your organization and the author. Intellectual property is a highly specialized of the law and the author does not practice in the area of intellectual property rights. This article should not be used as a substitute for competent legal advice from a licensed professional attorney with experience and knowledge in your state with the specifics of your situation.
John Litzler directs the Church Law division of Christian Unity Ministries in San Antonio. He is a graduate of the University of Texas and Baylor Law school. He is a member of the SSHS class of 2004.