Who Owns a Pastor's Sermons?
Most clergy are shocked when they learn the answer.

Most clergy would be shocked to learn that their sermons are works made for hire that are owned by their employing church, and that their sermons cannot be used in any other churches with which they are later employed without the permission of the church with which they were employed when the sermons were created. This can become a contentious issue in the case of clergy whose sermons are recorded and sold publicly by the church.

Are Sermons Works Made for Hire?

Are a minister's sermons works made for hire that are owned by the employing church? To the extent that sermons are written in a church office, during regular working hours, using church secretaries and equipment, it is possible if not likely that they are works made for hire since they are created by an employee within the scope of employment.

The argument could be made that sermons are works for hire even if composed by ministers at home, during "non-office" hours, since they comprise one of the most important functions that they perform on behalf of their employing church and congregation.

What this means for you and your church:

  • The church owns the copyright in the sermons, unless the parties have expressly agreed otherwise in a signed writing that meets the requirements of section 201(b).
  • Any written agreement between a church and a minister that transfers copyright ownership in works for hire to the minister may constitute inurement of church assets to the personal benefit of the minister in violation of section 501( c )(3) of the tax code. This jeopardizes the church's tax-exempt status.
  • The church has the exclusive right to copy and distribute the minister's sermons. To illustrate, if a minister's sermons are recorded and distributed publicly, and the minister resigns his or her position and accepts a position at another church, he or she does not have any legal rights with respect to the sermons preached at the previous church. Any further public distribution of the sermons could be done only by the previous church, and not the minister.
  • The minister would not have the legal authority to publish a book based on the sermons that he or she has preached at the church, since the church is the copyright owner of the sermons (as works for hire). As a result, only the church can create, publish, and distribute publications based on the sermons.
  • If the church receives royalties on the sales of the works for hire, this may generate unrelated business income tax.
  • If the church receives royalties on the sales of works for hire, this may violate the "operational test" under section 501( c )(3) of the tax code (which requires that public charities be operated exclusively for exempt purposes), thereby jeopardizing the church's tax-exempt status.
  • If the church receives royalties from the publication and sale of a work for hire, and remits them back to the employee-author, this may constitute prohibited inurement that will jeopardize the church's tax-exempt status.

Doing Outside Work at Home

Do you have a writer or composer on staff at your church? If so, it is possible that this person is doing some writing or composing on church premises, using church equipment, during office hours. One way to avoid the problems associated with work made for hire status is to encourage staff members to do all their writing and composing at home. Tell staff members that (1) if they do any writing or composing at church during office hours, their works may be works made for hire; and (2) the church owns the copyright in such works. By urging staff members to do all their personal writing and composing at home, the church also will avoid the difficult question of whether works that are written partly at home and partly at the office are works made for hire.

However, it is likely that pastors' sermons will be considered works made for hire, whenever and wherever they are composed, since sermons are the most important function that a pastor performs.

The best way to eliminate confusion over who owns the right to a work is by creating an appropriate copyright policy. Such a policy should be drafted by an attorney with experience in handling intellectual property issues. This can be included in a church's employee handbook and should be communicated clearly to clergy and staff, ideally during the hiring process.

For more help on church matters, visit ChurchLawAndTax.com.For more help on preaching, visit PreachingToday.com.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations

Comments

Displaying 1–9 of 9 comments

Matt

November 08, 2012  9:24am

Con–Please specifically highlight the content you believe Rich cites that is outdated. Thanks. Matt

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Con

May 19, 2012  3:49pm

I agree with Larry, most churches are tiny, and the pastor/minister is typically considered an independent contractor (primarily). Considering that the author does NOT cite the most updated version of the Copyright act, I wonder if this information is truly up to date. The bulletin from the Copyright.gov on work for hire http://www.copyright.gov/circs/circ09.pdf Outlines many factors that a pastor would need to meet to have her sermons be work-for-hire. Including the caveat that the employer is in the business of providing that type of content. The business of the church is not to create sermons. It is to enable the congregation to spread the Word of the Love of God.

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Matt

September 30, 2011  1:01pm

Friends, Rich's comments are reinforced by an article written by attorney Frank Sommerville (one of our Editorial Advisors): http://www.wkpz.com/files/DDF/Who%20Owns%20that%20Sermon%20%20Article%20Church%20Report%20%20(0408941).pdf This may provide you with the additional clarification/information you seek. Best, Matt

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Bob Kolterman

September 27, 2011  1:28pm

Aern't most ministers independent contractors? And therefore their work product, idea once tranitioned to a meaningful expression of written or spoken word those tangible expressions are now their copyrightable work. Counldn't you make the same argument that a visitng minister/spokeperson who preapres a sermon and delivers it owns the copyright rather than the church who hired that person for the seminar, et. seq. There are also independent contractors. Even without an explicit contract clause that grants the church the copyright, I doubt it would be enforceable regardless where the minsiter develops his sermon, although a paid "Employee" staff memebers has a differnet. I do understand the need to clarify a minister's contract and probaly lean toward granting them the copyright rather than the church. After all fair use and minor changes in a sermon will result in a new tangible expression copyrightable by the minister at the moment that expression takes tangible form

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Larry Kinser

September 27, 2011  10:17am

Is this based on actual case-law via a law-suit settlement, or is it based on presumption from the practice of similar qauestions within business?

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Mark Adams

September 27, 2011  10:07am

If you do not read your messages verbatim from notes, you will probably not preach the exact same message twice. So again, I pose the question how different would the message have to be? If you preach a message a dozen times on John 3, there are probably going to be numerous similarities. Is it going to get to the point where a pastor can not preach on the same passage in two different churches without fear of copyright infringement?

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Mark Adams

September 27, 2011  9:58am

Does this mean that a pastor is not to preach the same sermon or use the same sermon notes at a different church than where he was pastoring when the work was first done, or does it refer just to recorded messages? If it refers to the former, how different does the message have to be from the original in order not to infringe on copyright laws? If it is 10% different is it a different message? After all, the Bible does not change, so preaching on the same passage or topic will probably have similarities.

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Tad Nugent,

September 19, 2011  4:27pm

Are most churches doing this?

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Brad Hill

September 19, 2011  9:19am

Hi Richard, this is an excellent overview with some new information I had not read before. Thanks for the great information!

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