When they’re coming for your copyright…
  • ServiamScores
    Posts: 2,766
    Buckle up, this one is a doozy.

    Let me preface this post by stating my purpose: I would appreciate the wisdom this group can offer on the following situation, and would also appreciate hearing from anyone else who may have encountered or navigated anything similar. This post is not meant to be a rant session. Regardless, I suspect there will be strong responses.
    _______________

    I had a friend of the forum call me this evening after a run-in with a parish administrator. (I have his permission to post about this; we both believe that people will benefit from the discussion, if only to prevent themselves ending up in a similar situation.)

    The short of it is: this administrator is pointedly adamant that the parish owns the copyright / intellectual property of anything that he has composed or arranged while on the job. This is a real whopper of a claim, as far as I’m concerned. This friend of ours naturally bristled and attempted to correct her, however she was so bold as to even say that he’d just as well get a lawyer, if that’s how he felt, because as far as she was concerned, his work belongs to the parish so deal with it. If he wasn’t down to play ball, then perhaps he should be transitioned from being a salaried position to being payed as a “private contractor”. As far as I can tell from a distance, it sure seems like we are dealing with a napoleonic complex, at least in this individual case.

    Leaving aside the very odious dynamic this administrator is trying to push on our fellow musician—the church really knows how to treat her own… (he has also admitted to his own shortcomings in handling this admittedly stressful parlay) this is honestly the first time I’ve ever heard of such a thing in the realm of ecclesiastical music. Mind you, he is not composing with the intention of publishing a special collection in the name of his parish. He’s just writing gebrauchtsmusik necessary for a normal MD job, and putting his own compositional flair into it.

    It should be said that copyright belongs to the creator by default, and even without formal registration. This is inherent to copyright law, at least in the US. But it must also be acknowledged that intellectual property can indeed belong to an employer —at least under certain situations. An engineer working at a firm, for instance, or a researcher at a university, to name but two examples. All well and good… but music typically falls into a different category, and has its own rather Byzantine set of rules and case law dating back decades. Cursory searches on a few government websites didn’t provide any clarity in this particular instance, as many examples referenced don’t pertain to music, but the more stereotypical examples mentioned above.

    It is my understanding that he ultimately has nothing to fear in this regard, and that the church couldn’t actually lay claim to his intellectual property unless those conditions were explicitly set forth in the terms of employment. This is partly what I would like the hive mind to comment on. I have counseled him to go straight to the pastor, ask him to draft a form that explicitly states that he retains his copyrights, and to then approach the administrator once he already has the form in hand. (I personally would not settle for a verbal agreement and a promise that it will all be sorted out by the pastor.)

    I confess, a chill ran down my spine contemplating the possibility that this woman could be correct in her assessment (heartless though it may be), as I have composed hundreds of things at my current post in the last 5 years. This got me to thinking that, irrespective of what may be tacitly understood to be the norm, it may very well be wise to work explicit intellectual property clauses into any future employment agreements (can’t hurt). So: has anyone here every worked such a clause into their own terms of employment?

    What are some appropriate arguments to make in favor of the copyright remaining with this individual rather than the church? The discussions for our colleague are no-where near finished. God forbid: legal counsel could even become involved if the worst-case scenario is to play out. (I will also add the note that comments such as “time to walk away!” will not be constructive; he is happy at this post, and is relatively new to the position and not of the mind to move. Things have been very good up until this incident.)

    A few comments that were offered to me by an esteemed & seasoned collegiate pedagogue:

    1.) Even in the case of commissions, typically the composer retains copyright, or at least the terms of shared copyright are negotiated, but never forfeited unless this is an explicit term of the commission to which the composer has agreed. (*cough*USCCBhymncompetiton*cough)
    2.) What if the individual has already published works with big houses? Would the church hilariously try and revoke any rights they think they have? (Stated alternatively: it is very common for actively ministering musicians to have their works published, and their parishes have no say or recourse in this matter.)
    3.) Does this administrator also lay claim to the contents of the pastor’s prepared sermons? He is, after all, preparing those texts on the clock, as it were.

    Now, your turn.
    Pax,
    James
    Thanked by 1cesarfranck
  • Kathy
    Posts: 5,500
    I wonder many things about the parish administrator. Is she new? Does she have the backing of anyone else at the parish or diocesan level on this? What's her background?

    I worked with a bm who had been at Enron. Don't get me started.

    She is thinking in standard IP terms, which to my mind do not apply.

    Your friend presumably went above and beyond his job description to compose provide extra music for the parish. It's a gift, not a liability.

    If I were your friend, I would try to wangle out of the administrator whether they are following a diocesan directive or not. If not, if this is a maverick move on her part, then it will be clearer how to proceed.

    Just imagine if instead of BWV we had Thomaskirche Werk.
  • Liam
    Posts: 4,992
    Another perspective: Good luck for a parish affording a lawyer to pursue such an IP claim beyond a cease and desist letter, or finding diocesan counsel to have room on his/her calendar to do that. Btw, there would be a question of who the entity claiming ownership is: the parish or the diocese as corporation sole. (There may be a difference between an entity that can hire people vs an entity that can possess title of ownership; it's not entirely clear to me if those circles are fully congruent.)

    Certainly with *contractors*, any entity wanting to own work created for the entity would need to come to contractual agreement about such work being "work for hire" under US copyright law (that, btw, is not as easy to do in all jurisdictions that preserve more fundamental creator rights).
  • francis
    Posts: 10,703
    It’s tricky. Technically an argument could be made, especially if the work was composed on church premises.

    I have (for decades) avoided composing anything using English translations (ICEL, Grail, etc.) of already copyrighted text, only composing using texts in Latin and hymn texts in the PD.

    I strongly suggest immediately writing an addendum to the present contract explicitly stating that individual owns the music copyright. (I suspect this is Psalmody?)

    Thanked by 1Liam
  • It was explicit in the employee handbook in a previous position that anything done using diocesan/parish resources was the property of the diocese. I simply didn’t use their resources. I’m not aware of it ever being used against a composer, but did see it referenced in terminations when the individual in question wanted to either wipe their files or take a copy of the parish files with them.
    Thanked by 2Liam CHGiffen
  • Liam
    Posts: 4,992
    Marc's approach is one that makes sense (and employee handbooks are the usual method that employers use to specific policies, and employees agree to them by accepting employment and typically have to confirm acknowledgement of receipt of them). I would imagine the administrator referenced in the OP's post would be adamant against any new contractual stipulation to the contrary of what she has already quite firmly stated is her view of the governing facts/law.
  • ServiamScores
    Posts: 2,766
    Mercifully, I've heard from the interested party this morning, and he said that another discussion has been had, and cooler heads have prevailed. That said, he is still going to ask the pastor for a written statement confirming that all copyrights will remain in his own possession.

    My own case is a weird one, because the only thing provided to me by the church was a printer, bookshelf, and the computer (mac mini) itself. The monitors, keyboard (qwerty and musical), speakers, recording equipment, SOFTWARE, and all the rest are my own. Whenever I depart from here, they will be left with a very barren office... (even the physical desk and the two work tables belong to me) Add to that the fact that I literally wouldn't be able to do my job properly if it weren't for the resources that I have personally brought to this job... the amount of software that I've installed (and paid for out of pocket, and which are my own licenses) are worth 3 times the value of the computer itself (I am not exaggerating). Where would I fall in all of this? You can see the difficulty in all of this.

    For my part, I intended to leave a thumb drive behind with PDFs and a license for the parish to continue using anything that I wrote [for the parish] in the course of my duties here, even though I don't relinquish any copyright. That seems fair enough, I think. Although like the gentleman who caused me to start this thread, I plan on having some written form signed by my pastor too...
  • MAR
    Posts: 18
    If that pastor does not provide the written statement, that person should talk to a legal professional.
    Thanked by 1mmeladirectress
  • CharlesW
    Posts: 11,951
    What compositions? I left them on a table in the choir room and they disappeared.
  • TCJ
    Posts: 975
    I use my personal computer for all compositions and I don't compose anything specifically for the parish. It just so happens that the parish somehow gets its hands on copies of my music and uses them with my permission.
  • Richard MixRichard Mix
    Posts: 2,775
    Does anyone here have a job description that explicitly includes composing appropriate music?
    Thanked by 1tomjaw
  • CharlesW
    Posts: 11,951
    I never did have such a job description. The materials I put together, I kept close at hand. I would pass out copies for the choir to use and take them up afterwards. I didn't leave anything on church property or use church computers to produce or store any music.
    Thanked by 2tomjaw hilluminar
  • ServiamScores
    Posts: 2,766
    or store any music.
    that’s another interesting question. All of my files are in iCloud, and the person whose incident prompted this thread was using his own Microsoft cloud account, rather than a church one. This is all so interesting. I will definitely leave music in my wake, and I’m ok with that. But I have never intended to leave copyright / IP in my wake.
    Thanked by 1tomjaw
  • In most countries, anything done on the employers time belongs to the employer, less your employment contract says otherwise: Theres nothing special about music. American law may be different.

    Using your own equipment for a salaried job is extremely foolish: it blurs boundaries and opens up questions like this for far more than just musicians. It also puts uou at risk of losing your computer etc if there's ever an employment investigation.
  • ServiamScores
    Posts: 2,766
    Using your own equipment for a salaried job is extremely foolish
    sometimes it's your only option...

    I worked my current position for months before I even had a basic, limp-along computer. There was no budget for the software I needed to use, let alone any of the other peripherals (such as a midi keyboard) to even permit me to use the software properly.

    I think partly what makes this discussion so interesting and worth having is the blurred boundary between intention when it comes to producing music. If you are a parish secretary and you are tasked with developing a policy manual, or working on theological presentations to develop a diocesan curriculum, these projects have the tacit intention of producing something that belongs to the diocese. I'm not convinced that musicians composing or arranging on the job do so with the same conception. Composing music is intimately personal, even if it is to be used for the Mass in a formulaic fashion. It is an artistic expression, on the whole. Developing a curriculum or a policy manual is not. Also, there could be room for legitimate disagreement about what would happen if, for instance, you were tasked with developing a hymnal for your parish/diocese, or you were asked to compose a complete cycle of psalms with the express intention of it being proliferated around the diocese. In such cases, I think there is a stronger argument to be made that you are doing this composing or arranging for the express benefit of the diocese. But if you're a generic parish music minister, doing arrangements in the course of duty (as all organists and choir masters have since forever and ever, amen.) I'm just not convinced that you would thereby forfeit any natural copyright protections just because you did it in the line of work.

    I also have to seriously question why a diocese would want to commandeer an individual's compositional pursuits in service of the church.
  • MarkB
    Posts: 1,033
    Teachers routinely compose lesson plans, activities, quizzes, PowerPoint presentations, and assignments for their classes. Are those the intellectual property of the school or district that employs them?

    When I was a teacher, every teacher created his own content to some degree. It wasn't required of them, but they did it because they deemed that what they created would be of value to their students and enable them to do their job better. Did the PowerPoint presentations I created for lectures become the property of the school such that when I went to a different school I had to ask my former school for permission to use or modify them? I don't think so. I've never heard of any school enforcing or imposing such a thing.

    No teaching contract I was ever under stated that materials created by the teacher and used in the classroom became the intellectual property of the school.

    I think it's rather straightforward that a parish music director is not being paid to compose music for the parish unless that is specifically listed as a job requirement: "Director will compose X pieces of music per year for the parish at the request of the pastor as works for hire." Without that proviso, any composing or arranging that a parish music director does is outside the scope of his job description: "Play X Masses every weekend, keep office hours at X days and times, etc."

    Any composing and arranging performed by a music director are optional, supplemental, and auxiliary to the job parameters in almost every case. They support the performance of the job, but they are not part of the job.

    I purchased digital keyboards, which I sometimes use at weddings. Because I use them on parish grounds during parish weddings that I am required by my job to provide music for, do they become parish property? No: they are acquisitions on my personal time with my own money that I happen to use in support of my job as a parish music director because I have determined that they enhance the service that I provide.

    Composing and arranging are analogous: they are on my own time, with my own resources, but they happen to enhance the job that I do as a music director.

    Really, I don't think the scenario described in the original post is at all common. Likely an outlier. Still, interesting to discuss and be aware of.

    The way things are going in Catholic Church parish work, with the low salaries and likelihood of parish closures and mergers in the coming decade, pastors will be lucky to find musicians capable of playing already-published music competently and who are knowledgeable about the Church's liturgical norms. We're not exactly in a growth industry in which the intellectual property being produced by lowly organ jockeys are proprietary, corporate trade secrets that will increase profitability and enhance shareholder value.
  • Chaswjd
    Posts: 263
    Under the U.S. copyright law, the copyright of a work made for hire, that is " a work prepared by an employee within the scope of his or her employment," belongs to the employer. 17 U.S.C. sec. 101. Thus, if you are a choir director and you write something for your choir to sing, the copyright probably belongs to your employer. Some here have said that a composition was done on his or her "own time." But if you are a salaried employee, how do you distinguish between "your time" and "work time?" The best approach is to get a provision in your contract which delineates what happens copyright-wise if you compose and original work.

    To answer the second and third questions of the original post:

    Question 2 raises the specter of a challenge by a parish to the marketing of a work for hire by a publishing company. If an employee sells a work for hire to a publishing company, the employer could make a claim to the copyrighted materials. On a practical note, this is unlikely to happen. Does a parish in the U.S. really want to alienate OCP or GIA?

    Question 3 raises the specter of a parish attempting to assert copyright over the homilies of one of its priests. Actually, the parish would own the copyright and could assert it. On a practical level most parishes are unlikely to do so. The value of the copyright on most homilies I have heard, approaches zero. If I had to sit through one twice, I, like, Samuel Clemens, would be tempted to take money out of the collection plate.
  • Using your own equipment for a salaried job is extremely foolish


    I will second ServiamScores in saying that this is, in many situations, the only option. I have worked for several parishes as an organist, director of music, etc. and I did not have access to an office or a work computer at any of said positions. Based on my subjective experience, I'd say it's more common for planning/composing/etc. to be done at home on a personal computer as opposed to during office hours on a parish device.
  • MarkB
    Posts: 1,033
    But if you are a salaried employee, how do you distinguish between "your time" and "work time?"


    "Work time" is what's necessary to do the job.

    "Your time" is anything outside "work time", including work that contributes to the job but isn't necessary, i.e., is voluntarily undertaken.

    If we were dealing in highly valuable and advanced scientific or technological intellectual properties, it would be wise to have an employment contract written by a labor lawyer that explicitly stated terms of ownership of intellectual properties created while employed.

    Liturgical music? I don't think most pastors or dioceses care. Most probably don't even know when a piece has been written or arranged by their director. It's all "just music" to most of them.

    But if anyone expects to write a liturgical song that will explode in popularity like "Rich Men North of Richmond" has, it might be wise to talk to a labor lawyer before releasing it or else quit your job before releasing it.
  • ServiamScores
    Posts: 2,766
    Under the U.S. copyright law, the copyright of a work made for hire, that is " a work prepared by an employee within the scope of his or her employment," belongs to the employer.
    BUT! Does composing during office hours count as “made for hire”? I believe “made for hire” is technical language indicating contractual agreement to produce goods.

    What practical difference is there if you spend 30 minutes whipping up a psalm arrangement, or those same 30 minutes combing the OCP, GIA, ILP and CCW archives to find something appropriate and to your liking? Is the former somehow a “waste” or an abuse of time, but the latter isn’t?

    Does a parish in the U.S. really want to alienate OCP or GIA?
    Our does, lol.
    Thanked by 1MarkB
  • Don9of11Don9of11
    Posts: 690
    I'm not a legal eagle but it depends on the contract he signed, if he signed a contract. If he used anything from the parish in terms of property, such as the organ to compose music, the parish might have a legitimate claim. In most companies, if you develop, invent, design or create some new manufacturing method it belongs to the company, even if you didn't sign a contract. It's like using your image in a company brochure, the company is obligated to pay you for the right to use your image in their brochure This happened to me many years ago and they paid me a whole dollar.
  • CharlesW
    Posts: 11,951
    I suspect most parishes and dioceses would not find it economical to sue a musician over a work he had composed for liturgy. Small potatoes, maybe onions.
    Thanked by 1tomjaw
  • In the public school district where I teach, we are told that anything we produce for lessons or instruction on our schools' computers becomes the "property" of the district. I also wrote major grants for district and they were used by district officials. At a workshop on state level, I was quite surprised to see forms and extracts from grants used not only by the state' department of education and some of their private consultants who had been hired by the state. Your situation with copyrights is very interesting and I have no idea how your situation could be resolved.
  • It would indeed not be economical to sue (unless your composition became wildly popular).

    But that's not really the point.

    As an employee, you should always be mindful that your employer owns what you create on their dime - and if you want a different arrangement, get that included in your contract.
    Thanked by 1cesarfranck
  • SalieriSalieri
    Posts: 3,177
    This is a wonderful incentive to cease composing liturgical music for the [Roman Catholic] Church.

    Is it any wonder that the musical life of the Church has barely risen beyond the level of decomposing manure in the past several decades? You sow what you reap.
  • ServiamScores
    Posts: 2,766
    Rather cynical take, but I can understand how a seasoned musician could emerge from the battlefield with scars and a gruff opinion of the state of current affairs.

    Ultimately, we have even MORE of a responsibility to right the barque before she capsizes completely. I’ll bail musical water as hard as I can… but I sure hope the church doesn’t try and take my bucket from me.
  • francis
    Posts: 10,703
    @salieri

    This is a wonderful incentive to cease composing liturgical music for the [Roman Catholic] Church.


    Join me in composing in Latin and do a leapfrog over the temporary confusion.

    @serviamscores

    Lol
  • MarkB
    Posts: 1,033
    If it's a work for hire, it's the intellectual property of your employer, regardless of what language the text is in. Even though Latin texts are ordinarily in the public domain, original music using public domain Latin texts is protected by copyright law, and the copyright belongs to the composer or the employer, depending on the contract or policies governing employment.
  • If you want an alternative arrangement, get it included in your contract up-front.
    Thanked by 1cesarfranck
  • ServiamScores
    Posts: 2,766
    Mercifully, I've just checked my diocesan policy manual, and it contains nothing about eminent domain intellectual property grabs. I think this leaves me the requisite wiggle room to deal with this at a parish level, rather than involving diocesan legal. I suspect it would be much more difficult for people whose diocesan policy explicitly states that they own any intellectual property, and you want to go against that. At least in my case, mercifully there appears to be no (explicit) contradiction.

    If you want an alternative arrangement, get it included in your contract up-front.
    Really, this is the very reason I asked the person to whom this situation pertained if I could start a thread on it, because this is a great learning opportunity for all of us, since there are so many composers and arrangers on this forum.
    Thanked by 1cesarfranck
  • SalieriSalieri
    Posts: 3,177
    This is just yet another example of the hypocrisy in the Church: I'd be more inclined to take Bergoglio's "going to the peripheries" to be more than politically-correct boilerplate blah-blah if the Church would actually treat its own employees as human beings created in the image and likeness of the Creator rather than dog doo on the sole of the ecclesiastical shoe. Charity begins at home, Your Excellencies.
  • francis
    Posts: 10,703
    Mark

    About the legalities of English vrs Latin.

    You had to read between the lines to catch my drift. It’s the Novus ordo crowd who are interested in pursuing intellectual property. I had to be very careful about that over the decades. In general this is not true with the TLM crowd. They’re not coming after your comps or any of your intellectual property.
  • ghmus7
    Posts: 1,473
    Seems simple...the composer applies for copyright in the usual fashion. It used to be you mailed your score go lib on congress or to yourself and keps the package with postmark. With document in hand case closed.
  • ghmus7
    Posts: 1,473
    However, I was in a situation where I composed hundreds of psalms and liturgical works for weekday masses, because said items did not exist. When I was terminated from that position because of covid, I wiped the institutions' computer and took all my compositions with me, making sure they could not use anything of mine.
    Thanked by 3CharlesW tomjaw francis
  • francis
    Posts: 10,703
    I have wiped computers numerous times. However, anything that I composed, was only on my personal computer using sib.