In a conversation with a top gospel musician, she lamented to me the reason why most Kenyan gospel artistes, including herself, have abandoned gospel for the secular industry.
Simply put, the return on investments is discouraging, if not embarrassing. One might have a popular song receiving airplay in most worship areas, events and functions.
They happily believe it will result in handsome royalties through licensing fees. Only to be told that since the songs were played in church or worship events, they are not subject to pay licensing fees or obtain permission from the owner of the work.
There is a huge misconception that the law treats matters to do with religion differently than worldly matters. This is far from the truth, just as heaven is from hell. With regards to copyrights and gospel music, the laws that apply to secular music equally apply to gospel music.
Copyrights in gospel works
Copyright protects gospel music in the same way it protects other genres of music. No one genre is afforded more protection than the other. Willy Paul’s song Sitolia, which is labelled a gospel song, is afforded the same protection by copyrights just as his song Nikune, which is not considered to be in the realm of gospel.
Regardless of the genre in the musical work, copyright protects the rights of the legal owner of the copyright and provides them with recourse in law against an unauthorised user, who infringes on their copyright.
Copyright ownership provides the owner with the right to obtain royalties and licensing fees from their work. Thus, just like any other copyrightable musical work, anyone who owns copyright in a musical or audiovisual work that is considered gospel has the right to demand that unauthorised users obtain permission or licences before using their works.
Performing gospel songs
Do worship venues need licences to perform copyrighted works? Yes and no. Due to their status, worship institutions like churches enjoy some legal benefits, like not having some of their activities subject to taxation.
Some of these benefits spill over into copyright matters. Generally, churches do not need a performance licence to perform or play copyrighted music during a worship service. In some legal jurisdictions, this exemption has been clearly stated in their copyright laws, but Kenya is not among them.
Under the US Copyright Law (section 110[3]), performance of a non-dramatic music work or of a dramatic music work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly, is an exemption to copyright infringement. It is imperative to note that this exemption specifically applies only “during or in the course of a worship service”.
Broadcasting
However, broadcasting of such performance either through the television or the radio falls outside the protection of the exemption. Although there have been no cases addressing the same locally, in the 2006 case of Simpleville Music vs Mizell, a district court in Alabama concluded that the religious exemption does not apply to broadcasts.
The exemption does not allow the broadcasting of copyrighted songs, performed during church services, without authorisation, since such broadcasts are not "at a place of worship". Equally, digital broadcasts on social media networks, which have become the norm since the Covid-19 pandemic, would not be protected by this exemption.
Hymns
With regards to hymns, most of them are in the public domain and are not subject to copyright protection. Such hymns as Go, tell it on the mountain, whose original lyrics, melody and arrangement were published around 1865, are in the public domain in their country of origin (USA), as a result of Title 17 of the US Code, which states that all works published prior to 1923 are in the public domain.
This means they are capable of being used, broadcast and performed without any licensing or authorisation needed. Under section 45 of the Kenya Copyright Act, a work is in the public domain if its term of protection has ended, if its authors have renounced their rights or if it’s a foreign work, which does not enjoy protection in Kenya. Thus, a copyrighted work that is in the public domain may be used by anyone in any worship venue without any licensing.
Conclusion
Religion and worship are a vital part of the African fabric. In their pursuit to “save souls for the Kingdom”, worship institutions should ensure they adhere to copyright laws and obtain permission and licences where needed.
Equally, our copyright laws need to create efficient royalty collection processes as well as specifically address some of these issues, which fall between the cracks and leave creatives within the gospel industry with no means of earning decent royalties.
To quote an incredibly famous individual, “Give therefore to Caesar the things that are the Caesar’s, and to God the things that are God’s.”
Written by Allan Tuli, an advocate of the High Court of Kenya based in Boston, Massachusetts, specialising in Intellectual Property Law and Data Privacy
