Editor's Note: Since the following story appeared in the January/February print issue of CT, we've received questions from readers asking what they or their pastors should do about their sermons. We've also consulted with our in-house legal expert, who has written volumes (literally) on the nature of copyright law as it pertains to churches. He stands by our reporting as accurate, but warns that churches and pastors are wading into legally unprecedented territory. "Line up 10 legal experts, and they will give you 10 slightly different answers to the question, 'Who owns the pastor's sermon?'" he said. Thus, readers should take the following report as an accurate assessment on a legally thorny issue, not direct legal advice. The story has also been updated to reflect nuances from a source. —Katelyn Beaty, managing editor, CT magazine
In the late 1970s, Sealy Yates was sitting in his California law office when Chuck Swindoll paid him a visit. Swindoll was then a relatively unknown pastor at First Evangelical Free Church in nearby Fullerton. He had run into some legal trouble and wanted Yates's advice. At issue: Who owned Swindoll's sermons—Swindoll or First Evangelical?
A few years earlier, Swindoll had allowed a friend to launch a radio program called New Standard for Living, which broadcast his sermons. The program had done well, and now Swindoll wanted to take a leadership role in the radio ministry. But his friend balked, and their dispute seemed headed for court. Swindoll wanted to avoid a lawsuit, and Yates asked if he could mediate the dispute.
Yates said, "I asked Chuck, 'Who owns your sermons?' His response was, 'I don't know.' " Yates eventually helped the two parties settle the dispute, resulting in two separate radio ministries. He helped Swindoll launch Insight for Living, his popular broadcast ministry. After some legal research, Yates also crafted an agreement between Swindoll and the church by which they agreed that Swindoll owned the copyrights and all intellectual property rights to his sermons. (There was a similar agreement crafted between Swindoll and Insight for Living.)
A copyright is the exclusive right to make copies, license, and otherwise exploit a literary, musical, or artistic work, whether printed, audio, video, or electronic. Intellectual property is whatever results from the original creative thought. For example, a sermon series may be copyrighted as such—a series of sermons. If the pastor owns that copyright, he or she can then take content from that sermon series and create a book, for example.
Yates represents dozens of high-profile Christian authors, including Swindoll, David Platt, Mark Driscoll, and David Jeremiah. His firm's standard agreement recognizes that the pastor, as the creator, owns the intellectual property rights and has the right to determine copyright ownership. Who owns the pastor's sermon depends on the agreement between the pastor and his church. Under Yates's agreement, the 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, a partner in Yates & Yates, a law firm that doubles as a literary agent for its clients. Preachers should own their sermons. If pastors don't own their sermons, that would essentially rob them of their livelihood, said Yates. 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.
Other well-known pastors have run into similar legal gray areas. In 2012, Robert Schuller and his family sued the Crystal Cathedral, claiming copyright infringement. They said the church had sold recordings of Schuller's sermons and kept the money for itself. The suit claimed that Schuller owned the copyrights to the sermons. He and his family asked for $5 million in damages for copyright infringement and breach of contract.
A judge eventually awarded Schuller about $600,000, but ruled that the church owned the rights to broadcasts of the Hour of Power television show that featured his sermons.
Copyright Law Favors Churches
Disputes over the copyrights of pastors' sermons aren't likely to go away, said Frank Sommerville, a Dallas-based attorney who specializes in nonprofit law. That's partly because of the money at stake, and partly because current copyright law is stacked against pastors.
Sommerville 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.
Sommerville said that churches could run into Internal Revenue Service (IRS) headaches if they give pastors the intellectual property rights to their sermons. That's because intellectual property rights are considered charitable assets and thus have to be used for charitable purposes. 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).
Sommerville said that sometimes churches get bad advice. "The problem is that intellectual property rights lawyers usually give churches the same answers that they give businesses," he 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.
That led Sommerville to advise pastors to let their churches keep the copyright to their sermons. He admits that answer is not likely to please many ministers. But it's the simplest way to deal with the issue, especially since most ministers' sermons aren't worth a lot of money.
Things get more complicated when a pastor turns a sermon into a bestseller and earns a fortune in royalties.
Steven Furtick, pastor of Elevation Church in Charlotte, North Carolina, recently came under fire after a local television station reported on his plans to build an 8,400-square-foot house costing $1.7 million. Furtick is reportedly paying for the house using his book advances. That raised questions about who exactly owns the rights to the sermons and the book, since some of his books are based on his sermons and the church has reportedly run ads to promote them. (Elevation Church's executive pastor did not return phone calls requesting comment.)
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."
What's a Pastor to Do?
When it comes to intellectual property rights, pastors and churches have three basic options:
1. A pastor can set up a separate nonprofit ministry, which holds the copyright to his sermons. The nonprofit ministry can then handle the proceeds from royalties, speaking engagements, and broadcast appearances outside the church.
2. The pastor does all the writing—for sermons and for books—on personal time, using his or her own computer and software. In that case, pastors would have to reimburse their churches for sermon copies made by staff or using church equipment, reproducing the sermon on audio, and so forth. The church and pastor would also sign a written contract that assigns all the intellectual property rights to the pastor.
3. The pastor can assign all the rights to the church. The second approach involved too many headaches for Mike Glenn, pastor of Brentwood Baptist Church, a megachurch just south of Nashville. So when Glenn finished his recent book, The Gospel of Yes, he assigned all the copyrights to the church. "In a way it was a relief to say to the church, 'This is yours,' " said Glenn.
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.
"Preaching is the main part of my job, so the sermons belong to the church," said Glenn. "At some time, the church might decide to give me the rights. But they belong to the church."
LifeChurch.tv, an Edmond, Oklahoma–based multisite congregation, has a similar intellectual property policy. The church gives away all of it resources, including sermon videos, children's curricula, and its YouVersion Bible app. So it was essential for them to have a clear intellectual property policy, said Bobby Gruenewald, innovation leader at LifeChurch.tv. "If we are going to give away content for free, we couldn't be in a situation where we are paying royalties."
The church also holds copyrights to all of the sermons by LifeChurch.tv pastor Craig Groeschel, who has written several books. But he wrote them on his own time, then adapted them for sermon series.
Gruenewald said that the leaders at LifeChurch.tv consulted with outside counsel before crafting their policy. Staff learn about the policy when they are hired, and the church provides ongoing training so everyone knows the rules.
"We want to be sure that we are doing the right thing for our staff," he said. "We don't want to create any false expectations."
Perhaps the church's most valuable intellectual property is its YouVersion Bible app, which has been downloaded for free more than 100 million times. YouVersion was originally Gruenewald's idea, but he doesn't hold any intellectual property rights to it.
"I get asked all the time: 'Do you wish you still owned the rights to YouVersion?'" he said. "I don't have any regrets at all."
From Contract to Sermon to Book
At least one Christian publisher asks pastors trying to get their sermons published to prove they own the sermons.
"If a pastor is employed by a church, we would consider that pastor's sermons works for hire. The rights to those sermons are owned by the particular church where the works were created, unless the pastor and church had a written agreement to the contrary," said Marilyn Gordon, director of rights and contracts for Baker Publishing Group. "If a pastor wants to publish his sermons, we would require documentation on the ownership of the sermons."
But what if a pastor preaches from notes, rather than from a full manuscript, and then only loosely ties the book to the sermon or sermons? What if the pastor preaches regularly at a church but isn't considered an employee—often the case in small, rural churches?
Gordon said that Baker determines sermon ownership on a case-by-case basis.
Paige Mills, an intellectual property lawyer and a member of the Nashville law firm Bass, Berry, and Sims PLC, advises churches to work out their policy ahead of time. They should have a written agreement with their pastor, one that covers sermons and books based on sermons.
"It's a fine line to walk," she said. "Obviously most pastors don't make a huge salary—and if they can supplement their salary by writing, the church may be fine with that and give them the rights. The main thing is thinking about it ahead of time and figuring out what they want to do."
Yates is still not convinced that a pastor's sermon must be a work for hire under copyright law. The issue is, what are the terms of the pastor's employment agreement? Work for hire under copyright law applies only to what is created "within the course and scope of employment." Employees and employers are free to determine the course and scope of an employee's 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." (A magazine, for example, hires writers to create intellectual property.) 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?"
In any case, the details are best addressed during the hiring process. "I always ask [the pastor], what is your agreement?" Yates said. "It is incredibly important for churches and pastors to clearly define their agreement as it relates to the intellectual property created by the pastor in context of his ministry within the church, ideally at the inception of their relationship."
Bob Smietana is a religion reporter and coauthor of Good Intentions: Nine Hot-Button Issues Viewed through the Eyes of Faith (Moody).
For more on copyright law and churches, see attorney and Church Law & Tax senior editor Richard Hammar's Essential Guide to Copyright Law for Churches.
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