Is the recording of an audience singing in public copyrighted?
<p><strong>A church records their service on audio</strong>. The service, open to the public but behind the closed doors of their building, is performed before a live audience who voluntarily attend. The church then sends out a copy of the recording to paying subscribers around the world.</p>
<p>The recording includes announcements, speeches, prayers, musical and theatrical entertainment, and a sermon all of which I would assume are copyrighted by the church entity since it is their employees and volunteers who made and produced it. Likely everyone who contributed gave consent to record their work, except perhaps members of the audience who were distinctly asked to pray out loud for the group's benefit.</p>
<p><strong>Also included is the singing of gospel songs by the audience</strong>. The audience is prompted and led by a song leader who is possibly accompanied by a piano player on some or all of the songs. Assume the piano player is a paid employee.</p>
<p>My question is: <strong>Is the singing by the audience copyrighted as part of the larger or complete work?</strong></p>
<p>Probably in the same category: Are the prayers solicited from the audience also copyrighted?</p>
<p>The question seems unclear in this regard: It is highly unlikely that the church asked any member of the audience for their permission to record their singing much less to distribute it. Assume they did not. No audience member signed a waiver granting the church copyright permission over their vocals, foot-stomping, or hand-clapping.</p>
<p>To further muddy the waters, some of the songs sung by the audience may be copyrighted while others are in the public domain. I assume the audience's singing is about common for a diverse group - so not necessarily &quot;original&quot; or &quot;creative&quot;.</p>

<h2>There is copyright in the recording (probably)</h2>
<p>The person who first fixed the material in a tangible form owns the copyright. Presumably, whatever legal entity the church is, as it was made by a volunteer as a work-for-hire. That is because they were the ones who fixed it in tangible form. This is why journalists own the copyright in interviews they make with subjects.</p>
<p>The copyright in the performance is a separate copyright from any that might exist in the composition. If the recording violates the composer’s copyright (e.g. the church did not pay the required statutory royalties to perform the songs), then there is no copyright in the recording, and the composer can sue the church for making it. There is no copyright in works that violate another's copyright.</p>
<h2>Making an audio recording without permission is a crime</h2>
<p>This is totally unrelated to copyright, but in most jurisdictions, you need the speaker’s permission before recording their voice. If the recording is obvious (e.g. a microphone in your face or a big sign saying services will be recorded), then permission can be implied - by knowingly speaking while you are aware you are being recorded, you have consented to the recording.</p>

<p>Assume first that the composition is still protected by copyright. Only the author can authorize public performance of the work. Everybody is an infringer if they don't have a license to perform the work. Now assume that the music director secured a performance license. Then you look at the terms of the license to see whether it is allowed to record the performance; and if it is allowed, it is allowed without restriction, or only for non-commercial purposes. If the composition is not protected by copyright anymore, then it can be recorded. The person who creates the recording (putting it in fixed form) hold the copyright to that particular work (the recording).
Copyright law relies on the undefined concept of &quot;author&quot;, which <a href="https://www.ce9.uscourts.gov/jury-instructions/node/264" rel="nofollow noreferrer">as the courts say</a> is a &quot;question of fact&quot;. An author originates or &quot;masterminds&quot; the original work, controlling the whole work’s creation and causing it to come into being, which is not the case with a member of the choir. More likely, the music director and sound engineer create and hold copyright in a joint work.</p>
<p>We might assume that some of the sermon was written down in advance, which is to say that it has a fixed form, but that's far from assured; at any rate, the preacher can also conspire with the engineer and music director to create a joint work, where the engineer's contribution is putting the work into fixed form.</p>
<p>So the transitory singing of the choir is not protected by copyright (it literally can't be copied), but the recording of a choir and sermon is protected by copyright, and the copyright is owned by the people who originated or masterminded the recording. Probably not the choir.</p>

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