In a September 14th opinion, Simpleville Music v. Mizell, 2006 WL 2642106, a district judge in Alabama addressed a rarely encountered part of the Copyright Act, Section 110(3). This provision exempts the public 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."
The suit was brought by ASCAP against the owner of radio stations operating without a license from ASCAP, known affectionately as a PRO ("Performing Rights Organization"). One of the defendant's arguments against liability was that he could broadcast some of the songs because the songs had been performed during church services. The court rejected the argument, rightly noting that the exemption applies only to performances that occur at the place of worship; it does not extend to broadcasts of those performances. The legislative history states that the exemption does "not extend to religious broadcasts or other transmissions to the public at large, even when the transmissions were sent from a place of worship." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 84 (1976).
The scope of the Section 110(3) exemption was the subject of debate during its drafting. The 1964 revision bills would have more broadly exempted the performance of nondramatic literary works and musical works in the course of religious services at a place of worship or other religious assembly.The 1965 revision bills further expanded the exemption to include dramatico‑musical works. At the same time, the Copyright Office noted concerns that the term “dramatico‑musical work” would encompass secular works if performed in the course of religious services. Since this was not Congress’s intention, the Office suggested that the term be amended to read “dramatico‑musical works of a religious nature.” This amendment was made in the House Committee on the Judiciary’s version of the bill reported on October 12, 1966. The amendment was explained as follows in the Committee’s report:
The purpose . . . is to exempt certain performances of sacred music that might be regarded as “dramatic” in nature, such as oratorios, cantatas, musical settings of the mass, choral services, and the like. The exemption is not intended to cover performances of secular operas, musical plays, motion pictures, and the like, even if they have an underlying religious or philosophical theme and take place “in the course of [religious] services.”
The phrase “in the course of services” is intended to exclude performances at places of worship that are for social, educational, fundraising, or other entertainment purposes, and, as the Alabama court held, broadcasts.