I saw a link yesterday to a January 8 article in Christianity Today about a question that is becoming increasingly significant in the modern media age. The article describes the problem, “Who Owns the Pastor’s Sermons?” That used to be an insignificant issue. It was hard to get a book published or get a radio ministry that produced income. But with the explosion of self-publishing and podcasts and monetized internet options and PayPal, there are a lot of ways for pastors to make a little income from their messages and writings.
But hold on a second, preacher!
You may be taking profits from material that does not belong to you. Copyright law protects the author and grants him rights, but there is a category called “works made for hire.” If an employee (and yes, you are a church employee as a Southern Baptist pastor – or you ought to be by IRS regulation) produces a work as a part of his employment, then the copyright belongs to the employer.
There is an online document from Copyright.gov that you ought to read, called “Works Made for Hire.” The law on the subject seems to be pretty clear. (NOTE: we have two or three lawyers who are regular readers/commenters on this site. I am not a lawyer. I’ve studied this and I THINK I understand it, but if one of our SBC legal team wants to weigh in, feel free!). Here is a statement that makes things pretty clear.
“If a work is made for hire, an employer is considered the author even if an employee actually created the work.“
The document then goes on to give a definition of “work made for hire.”
“a work prepared by an employee in the scope of his or her employment.”
Couldn’t be much more clear, could it? You church hired you to prepare and preach sermons. The copyrights to your sermons belong, by law, TO YOUR CHURCH! If money is made from those sermons, it belongs to the church and not to the pastor. Books prepared from sermons are covered as well. It is likely that if you write (a book, or even a blog) and do so as an extension of your ministry, using your work computer or in the church office, copyright on that material also belongs to the church.
As I understand it, the law is pretty clear and unequivocal on this topic. The copyrights on the sermons you preach belong to your church. Before you rail against the unfairness of it all, this is pretty standard business in other companies. I had friends who developed products for a major aerospace industry in Cedar Rapids. In fact, the copyright was in their name. However, the copyright was owned by the company and the employee got a pittance of a bonus for the work.
This raises some issues, of course.
- What happens if I preach a sermon I prepared before I came to my current church, while employed at another church? Who owns that sermon – Northbrook or Southern Hills (or even Drakes Branch or First Baptist, Tequesta)?
- How do I distinguish between what I write as an employee and what I write as an individual?
- Can a church sue its pastor for royalties from published works (the answer is, I think, yes). I doubt they would, but they could.
The Solution
There is a solution to this problem, of course. If you are going to write and publish, you need an approved and published agreement with your church that specifically grants you the copyright to your messages. Just spell it out!
I did that long ago, since I have been writing (and seeking to publish) for a long time. I had an agreement with my previous church, where I served for nearly 15 years, and I brought that agreement forward to Southern Hills when I came on here. The agreement needs to be fair to both parties.
- It needs to clarify copyright ownership of materials produced as a church employee.
- It needs to clarify some sort of fair use by the church – they’ve already paid for the use of your sermons!
Here is a copy of my agreement as it appears in our Employee Policy Manual at SHBC.
Works for Hire Policy
David Miller shall be granted copyright ownership to all material, in form, content, and creative content, developed by him during his tenure at Southern Hills Baptist Church. The church shall have the right to use the pastor’s image and materials in its ministries without payment of royalties during his tenure. Materials developed for use in the church may be produced and used without royalties even after the pastor’s tenure ends.
This policy makes three specific points.
- I own the copyright to everything I preach, write or prepare. When I go, it goes with me. I can publish it as I please. If God blesses and I ever actually make money on my writings or messages, it is mine to keep.
- The church can use any materials I produce during my tenure without paying me any royalties beyond the compensation package they already give me. If I make royalties on my writings, it won’t be from Southern Hills.
- Any materials that I produce for the use of the church – Sunday sermons, study materials, whatever – can be used by the church in perpetuity for its own ministries.
It seems like a fair bargain to me and neither church has blinked an eye (perhaps they do not believe that I am really going to make any money from publishing – a fair belief at this point) at this agreement. It is in our policy manual, approved by the church.
Conclusion:
Let me be as clear as I can. If you do not have such an agreement with your church, they own your sermons, they own any books produced from your sermons and they own the rights to anything you write as a part of your employment. Just assume, if you do not have an agreement similar to the one I posted above, your church owns the copyrights to everything you preach, write or produce. That’s the law.
I do not think that it is unethical for me to assert my own copyrights over materials I produce. But it must be done by a legal agreement – approved by the church.
If you do not have an agreement with the church defining copyrights, then I would conclude with the following two assertions.
- You need to get an official (in writing, church-approved) agreement defining copyrights.
- Until you do, the church owns all the copyrights.
I’d love to hear from some of our lawyers. I think I’m on solid ground here, but I have yet to pass the bar.
Dave,
How is such an agreement made? Where is this in writing? Would one do this in a business meeting or what?
I did some research on this, where I came up with the wording. But I just presented it to the church as a part of our policy document governing my employment. We have a lengthy document for each employee defining job description, compensation, expense reimbursement and other conditions of employment. This is part of that.
If I don’t have something like this but I’d like to have something like this how would you suggest doing that?
The document? I’d be glad to show you our document. A treasurer (who misunderstood everything about church finances) accused me of fraud with church money a long time ago. We brought in an “expert” and he said we were not even in gray areas. But after that, we wrote long and detailed documents and spelled out all the policies so that there would be no questions in the future. The guy who helped us with them, a man who traveled the country working with non-profits, made sure we were in full compliance with tax law and IRS regs. I will… Read more »
For instance, policies related to healthcare need to be updated as a result of Obamacare.
News You Can Use!! Some pastors qualify as independent contractors, by the way. According to that same article (and the decision behind it), they retain ownership. One of the key ways to tell what kind of relationship you have is via the receipt of a W2 or a 1099. There are some common law standards for remaining an independent contractor, though, and neither you nor the church should claim that you’re independent unless you meet them. You can read about those at the Independent Contractor or Employee article at the IRS site. I was learning about those rules around age… Read more »
Not sure if you saw CT’s updated post on this and I’m not sure if this was in their original, but I noticed this paragraph may make it a challenge to grant sermon ownership to a pastor from an IRS standpoint. “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… Read more »
Again, I’m not a lawyer. But taking income from writing books based on sermons seems something different than. Private inurement.
I think this is going to have to be litigated at some point. As I understand it, that’s how IRS regs are often developed – IRS audits, makes a ruling, it is litigated, Regs are developed.
With the advent of the social media industry, it is a going to hit the courts at some point.
I would like to know, if I am an employee according to the IRS, why am I paying Social Security like a self employed person.
That is simple. We have a dual status as self-employed for Social Security purposes (I think that is because they can’t tax churches) and as employees for tax purposes. The IRS guidelines are pretty clear – 99.9% of SBC pastors would not qualify as self-employed for tax purposes. Here’s a link to an IRS document that will help in making the determination. http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee By the way, I’ve been both. Early on, my churches were still trying to say I was an independent contractor, not an employee. I finally demanded that they either make me an employee as the law dictated,… Read more »
Because that’s what the law says, we clergy having a dual (employee for income tax but self-employed in regard to Social Security). The history of it has to do with our government not wishing to burden churches with the requirement of deducting, filing, and paying taxes on their ministers as employees. Some churches pay a cash allowance to the minister as an “offset” for his SECA taxes but this is merely a budgetary item that is additional income to the minister on which he pays both income and SECA taxes. You can lower this somewhat by having an accountable reimbursement… Read more »
And, the thing is, people act like independent contractor is so much better. I do not think it is. I’m not sure why pastors want to be independent contractors. As one who has been both, I don’t see the advantage.
Pastors don’t have to pay Social Security taxes, is they opt out. Originally pastors were not even allowed to participate in the Social Security system and then the govt decided to take their money and automatically enrolled them, but allowed them to opt out (if they had appropriate religious convictions). Far too many pastors are paying into Social Security believing they can’t opt out.
Needless to say, if pastors are allowed by Federal Law to opt out, they are not considered employees.
Yes, the opt-out option is there. Most recommend you NOT take that option. And as you said you cannot opt out based on “it’s better for me financially” but only on grounds of conscientious objection to such. It’s a pretty thin argument. I opted out years ago, based on the advice of a well-known Christian financial freedom expert. He presented a rationale and I said, “Yes, that’s what I believe.” I’ve never felt that good about my 4361 – I think my reasons were more financial than they were conscientious. If you opt out, you are expected to provide for… Read more »
Again, pastors are self-employed in terms of SECA – and must pay the whole amount if they are in the system. However, we are employees for tax purposes.
The “we are self-employed for social security, therefore independent contractors for tax purposes” is not a valid argument. Not sure if you are making that, but it is simply NOT valid.
Straight from Guidestone: “Do ministers have to pay Social Security taxes? Ministers for tax purposes must pay SECA taxes on their ministerial earnings unless they have properly followed IRS rules to opt out of Social Security, something few ministers qualify to do. If ministers have opted out of Social Security for their ministerial income, they must pay Social Security taxes on any income earned from secular employment.” and “Few ministers can opt out of Social Security by meeting the strict IRS guidelines required for filing IRS Form 4361, Application for Exemption from Self-Employment Tax for Use by Ministers, Members of… Read more »
Guidestone is a GREAT source for info on such things.
“Pastors who choose to opt out of Social Security also lose access to other important benefits, including potential disability payments for themselves and payments to their surviving spouse or dependents in the event of their death.” And, who believes it will be there? God’s word calls us to be good stewards and if young pastors aren’t buying their own disability and life insurance policies, they are putting their families at risk. Guidestone is simply wrong that not many pastors can opt out. It blows my mind that Guidestone is in bed with the govt. All it takes is for one… Read more »
Nate, you might reconsider. “The system is broken” is not what the conscientious objection exception is all about.
Here is an article you might want to read.
http://thegospelcoalition.org/blogs/justintaylor/2010/03/15/a-letter-to-dave-ramsey-on-unwittingly-advising-pastors-to-break-the-law/
And, from Dr. Moore.
http://www.russellmoore.com/2010/02/15/is-it-okay-for-me-to-opt-out-of-social-security-my-response/
It’s not just an “opt-out.” It has to be a definable religious objection to having church money pay for government insurance. I took that objection back when I was a bi-vo pastor and prayed through it, searched through it, and came to the conclusion that I didn’t think the church could or should put their responsibility to care for those who serve on the government like that. There wasn’t much financial interest for me at the time–I was a low-paid bi-vo guy, still paying employee-based SSA, and expected to continue doing so. My objection was strictly on religious income. I’m… Read more »
I hear you Dave and I have read Dr. Moore’s statement on that. I personally think he is completely wrong. I agree with Dave Ramsey and I don’t think the Gospel Coalition is accurately stating the situation. I don’t think the govt. should be involved in ministry (mine or anybody’s) and I don’t want or need their assistance, therefore they shouldn’t tax me. (that is a legitimate objection) I understand this is a personal issue for pastors. My concern is that both options are not being given the same amount of energy (Dr. Moore’s “prison” example, for instance is complete… Read more »
Interesting…and your best article here. I admit to being wrong on this, having presumed that if anything belongs to the pastor it is his sermons. As you advise, having an agreement with the church would settle this. My understanding is that very few *pastors* may consider themselves to be independent contractors (although evangelists and others may) which is why we have the dual status and receive W-2s. This raises the question about our denominational employees who publish and whose publications are then sold by their employer. Who profits? This was a problem at NAMB pre-Ezell. Most of us need only… Read more »
Some of the other aspects worth noting in this: Who owns the computer you use? Who supplied the chisel/stone, for you who are a little late in the tech department? Where were you when you did the work? Were you in a parsonage, which you have tax-free because you are expected to work from there, or in your own home? It shouldn’t matter that much, but it does. Especially if you do get into making zillions, like Dave’s book will do someday, and the IRS comes knocking. There’s an additional aspect that I think needs a legal mind in the… Read more »
Since there is no money to be made as a blogger here at SBC Voices, I’m not sure it really matters. But if someone monetizes their blog, it becomes an issue. We got in trouble once here, because someone sent me a blog post they had put up elsewhere and asked me if I’d cross post. Many of our contributors publish first at their personal site then here, and we cross-link. But this site was a big-name site and claimed ownership of the post. They were pretty upset when the post appeared here (even with the author’s permission). They demanded… Read more »
So how would all these rules apply to a bivocational pastor who does not receive a salary from the church – even if he’s the only “employee”? Also, what about lay elders who preach occasionally and their sermons are even on the church podcast? Who owns those sermons?
-Bob Browning
If you are an occasional preacher, you are likely not an employee – no issue.
If you are bivo, that would likely make things more interesting.
I know of a couple folks that are bivo that fall in this category. I think a lot of our church planters might fall into this category because they may be supporting their own salary through a separate missions organization or through secular employment and therefore aren’t drawing a salary from the church – but it would seem strange to say that the senior pastor is not somehow legally tied to the church. This is a topic I’d really like to see someone address in the comments or in a future post. It’s definitely an area for potential stumbling blocks… Read more »
My suggestions would be twofold.
1) Talk to a lawyer. (that’s expensive, of course). Or…
2) Talk to Guidestone. They are pretty good on stuff like this.
Well, since you didn’t have such a document when you were at Drakes Branch, we will be expecting our royalties check if you are ever published.
I will make sure I never use any material from my sermons there in books.
So…if the church owns the sermons, wouldn’t that also make illegal the practice of sending a copy of your sermon to another church’s pastor search committee without the permission of the church where the sermon was preached?
Or would that not matter if you don’t sell it to them?
Yeah, these laws only apply when money is at stake.
Is a job “promotion” not money at stake?
That gets convoluted, doesn’t it? And probably why Paul does not really give any loopholes about suing each other–better we handle it by just doing our best to do what’s right and forgive what’s wrong, rather than jot and tittle ourselves in front of the state.
So how would all this apply to a professor who uses notes from class lectures to make a book? Do his class lectures belong to him or to the school? Or are professors consider independent contractors? Otherwise it seems the material they produce for class would belong to the school since that is what they are hired to do.
Thought-provoking conversation. I always presumed that Adrian Rogers held the copyright to all of my sermons.
Again, comment of the day to Dr. Barber.
If I ever have a sermon worthy of copyrighting, I’ll be sure and follow these guidelines.
Yeah, that’s the rub in all of this. It matters to me because I am attempting to publish several books I’ve been working on. Actually, most of them were in the works before I moved here, but I have preached the content here at one point or another.
But, yes, to this point, no one has been fighting over the money generated from any of my sermons.
I’d love to hear from some of our lawyers.
I haven’t had a chance to read through all of the comments yet, so there may already be a great discussion from some of the other attorneys, but I did want to comment just to say that I’ve read the post, I think it’s a fascinating issue, and I’ll hopefully have some time tomorrow to think through these issues.
Thank you, counselor.
Here are some general thoughts: I know this may sound like a bit of a cop-out, but I think a recently-added preface to the CT article hits the nail on the head: “[C]hurches 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?’” Ultimately, there isn’t an objective, straight-forward answer to these issues. I would argue that, with the current state of IRS regulations, copyright ownership is leaning heavily in favor of churches, but it is by no means a… Read more »
In follow-up, I think these issues create another, potentially more thorny, issue: In this modern information age, churches and pastors can quickly and easily disseminate (and potentially profit from) intellectual property. Both this post and the CT article focused solely on the issue of preachers and their sermons—whether employees, contractors, bi-vocational, or even lay individuals. But there is a lot more intellectual property being creating in the context of a church, especially in well-staffed megachurches. Music ministers are writing music, composing arrangements, etc. Tech crews are developing software and systems for projection, recording, broadcast, etc. Lay persons are giving their… Read more »
Would it make sense for IP produced for a church (sermons, music, etc.) to be released under a Creative Commons License? Or would that only cause different headaches?
Releasing content under a creative commons license isn’t a bad idea, just to show a church isn’t profiting from content, but I unfortunately don’t think it really solves a lot of the problems that could come in the future. The issue is that the church may not have the right to distribute certain content at all because it has no right to the IP. The rub isn’t so much what the church is doing, since the church is non-profit and (theoretically) shouldn’t be profiting from any of its content. However, when churches and independent-but-intertwined ministries start blurring the lines, then… Read more »
One final clarification, too:
It’s important to remember, when dealing with copyright issues, that a copyright to certain material doesn’t just prevent the unauthorized profit from that material but rather the unauthorized use and distribution of that material, whether for profit or not. Just because a church is a non-profit organization and just because the church is releasing the content without profit doesn’t sidestep the issue of copyright.
I just wanted to make that clear, since, reading over my previous comment, I may have given an impression to the contrary.
See, folks, sometimes lawyers actually CAN help.
Good stuff, Zach.
There you go, Dave, sullying our bad reputation.
Don’t worry, we’ll do a post of all lawyer jokes at some point.
By the way, as per our agreement, send the bill to Doug.
“Don’t worry, we’ll do a post of all lawyer jokes at some point.”
Q: How do you know probate lawyers are Calvinists?
A: They never offer free wills.
Heyo! I’ll be here all week, folks.
Uh-oh.
We’ve got an Arminian Lawyer at the Arkansas Baptist Foundation. He does free wills for ministers.
Call the Brute Squad.
I thought you were the brute squad.
Dave’s the Brute Squad.
I am not left-handed.
I do not mean to pry, but you don’t by any chance happen to have six fingers on your right hand?
Do you always begin conversations this way?
We’ll never survive…
You’re only saying that because no one ever has.
What about preaching a sermon at a conference or a revival meeting where you use a sermon that belongs to your church?
http://www.christianitytoday.com/edstetzer/2014/february/morning-roundup-2614.html
“Morning Roundup 2/6/14
Joni Eareckson Tada and the Oscars; Who Owns the Pastor’s Sermons?; Creation Debate”
Because of the headline, I thought Stetzer had linked to your post when I clicked on it. Sorry, Dave. No such luck.