Who Owns the Pastor’s Sermons? Part 3

This post was originally published on April 5, 2011, and has been one of our most visited.  It is the third in a three-part series we are republishing over the next several days, which will end with a new installment (Part 4) in our Who Owns the Pastor’s Sermons? series.

In response to this post, another attorney posted his response here, outlining why he disagreed with my legal analysis.  His thoughts and comments are in line with the advice that many of our clients have received from other attorneys, and are not incorrect insofar as their legal analysis goes.  However, the questions you begin from always color your legal analysis.  For purposes of clarity, and for those who care about the nitty gritty details, I wanted to provide a more detailed response to the issues raised in Mr. Parker’s comment.

Mr. Parker rightly concluded that the California case that I referenced in my post was Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. Ct. App. 1969).  However, neither in my post nor in my advice to my client did I rely on the ruling in that case to determine whether it was the church or the pastor in any particular situation who owns the intellectual property contained in the pastor’s sermons.  I was then, and am now, well familiar with the changes in copyright law that resulted with the passage by Congress of the 1976 Copyright Act, and the “work made for hire” doctrine (before and after the passage of that Act).

As suggested above, in order to apply the proper legal analysis, you have to ask the right question.  The application of the “work made for hire” doctrine depends on the agreement between an employer and employee as to his or her job description, wherein the “course and scope” of the employee’s “employment” is defined.  Thus, the purpose of citing Williams v. Weisser was for the reasoning of the Court as to who, between the university and the professor, should own the professor’s teaching notes or lectures.  Their reasoning was that it did not make sense for a person to have to leave behind a body of creative work when he moved to a new employer.  In my opinion, this rationale (coupled with the copyright law’s presumption that a creator should own his/her creation) should apply to any similar situation.  While it is certainly true that the course and scope of employment can be defined to include the creation of intellectual property, which would necessitate the employer owning such intellectual property, it is not necessary.  In my mind, the question is, what should the relationship between pastor and church be?  You cannot simply assume an all encompassing employer/employee relationship and then analyze the legal issues from there. You must first ask how the employer and employee should relate to each other, and then address the issues accordingly.

What I wanted to convey in my earlier post is that the pastor should make certain that he retains ownership of his intellectual property contained in his sermons, following the same basic logic the court did in Williams v. Weisser.  In addition, I would argue that when a church hires a pastor to study and teach the congregation, it does not hire that pastor to “create or produce intellectual property” that will be owned and controlled by the church.  Rather, a church hires a pastor to teach and minister to its members and those who are within the sphere of influence of the church.  In fact, the compensation paid by most churches to their pastors could not be seen as adequate to also be acquiring the right to own and control all that comes out of the pastor’s mind (resulting in the intellectual property).  A conclusion that the church owns everything the pastor creates in exchange for the kind of compensation that is paid to the pastor by the church would be patently unfair. These consequences can be avoided if the pastor and the church carefully document (in writing) their agreement that the church is not hiring the pastor to create intellectual property to be owned by the church, but that the pastor retains such ownership.  I would add that if the church believes that it should own the pastor’s intellectual property created by him as he prepares and delivers sermon messages, then the church should pay a fair compensation for the acquisition of any such intellectual property.

While the Copyright Act and corresponding case law dictate an employer owns intellectual property created in the course and scope of an employee’s employment, the employer and employee are always free to define in writing the actual course and scope of employment. We would argue that the course and scope of a pastor’s employment should not include creating intellectual property to be owned by the church.