The final of the three articles I chose from the January-February issue of Christianity Today is "Who Owns the Pastor's Sermon?" which dives into the thorny issue of intellectual property rights. If a church hires a pastor to preach sermons, do those sermons become church property, or does the preacher retain the copyrights? Right now, the law favors the churches, which is why more pastors are seeking legal help to craft clear agreements. Even though the focus of the article is entirely on pastors and sermons, church musicians, who frequently create intellectual property during the execution of their jobs, should take heed as well.
The law firm of Yates & Yates, which represents many Christian preacher-authors, has a standard agreement, which "recognizes that the pastor, as the creator, owns the intellectual property rights and has the right to determine copyright ownership. ... [T]he pastor grants the church a royalty-free license to use his written or recorded material."
It's the only arrangement that makes sense, said Yates. ... Preachers should own their sermons. If pastors don't own their sermons, that would essentially rob them of their livelihood. ... Pastors wouldn't be able to preach the same sermon in more than one place. And they wouldn't be able to take their sermon notes with them when they moved to a new church, which is "ridiculous," said Yates.
However, the legal situation is more complicated than this.
Frank Sommerville, a Dallas-based attorney who specializes in nonprofit law ... says that under the Copyright Act of 1976, a pastor's sermons qualify as "work for hire." That means the copyrights and intellectual property rights actually belong to their employer.
"It's not the answer that pastors expect," said Sommerville. "They've always taken the position that God gave them the sermon as part of their ministry. It never crossed their minds that there would be a law that would govern their sermons."
Sommerville's view is essentially this: A church hires a pastor to write and preach sermons. Since that's part of their job description, the sermon qualifies as work for hire and therefore belongs to the church.
Under this interpretation, churches could find themselves with tax problems if they give pastors the intellectual property rights.
The IRS bans "private inurement"—charitable assets resulting in personal gain (as when a pastor receives royalties for books to which the church holds the intellectual rights). ... "The problem is that intellectual property rights lawyers usually give churches the same answers that they give businesses," [Sommerville] said. "And they never talk about the tax implication."
A for-profit company can give away intellectual property rights if it wants, said Sommerville. But a church or other nonprofit can't, because of the IRS restrictions on private inurement. He points to several recent private letters from the IRS, which denied charitable status to several religious nonprofits that wanted to publish books by their founders and let the founders keep the copyrights and the proceeds.
Sommerville said that each church and pastor should determine who owns what when the pastor is hired. "This is not a problem that gets easier to solve if you ignore it," he said. "The longer you wait, the more expensive it gets."
Yates is still not convinced that a pastor's sermon must be a work for hire under copyright law. ... Work for hire under copyright law applies only to what is created "within the course and scope of employment."... In Yates's opinion, pastors are called to study and preach the Word, not to create intellectual property rights for a church to exploit. "Just because you are hired doesn't make everything you do work for hire," he said. "I don't know of any church that hired a pastor to create intellectual property for the church's benefit." ... The church "hired you to lead and shepherd the flock. So why should the church own the intellectual property rights to what the pastor creates?"
Some churches have policies that assign rights depending on when the work was created.
Brentwood Baptist is one of a number of congregations with a formal intellectual property policy for staff. It's pretty straightforward: Anything that staff members create as part of their job duties—like the pastor's sermons—belongs to the church as work for hire. Anything that staff members create during their spare time, using their own resources, belongs to them.
The rights to anything that's created using substantial church resources—like books or songs—are transferred from the staff member to the church, under an agreement signed by both parties.
To my surprise, the article does not address what I see as the glaringly obvious problem with this approach: what is a pastor's "spare time"? In this era of blurred lines between "work time" and "personal time"—when employees are accessible at almost all times via their mobile phones, and are as likely to do company business outside of their official work hours as within them—such a policy seems archaic. This problem is a hundredfold greater when the "product" in question is a creative endeavour. What pastor, what musician, what artist, what author—what scientist, even— creates his work at a desk, in an office, between the hours of nine and five? The creative process isn't something one turns on and off according to the clock. It also happens in the shower, while falling asleep at night, on long walks, and during breakfast. There is only one word for the idea that a church, or any other corporation, owns 100% of one's time: slavery.
