Works Made for Hire: Who Owns the Sermon?

November 18, 2015

“Copyrights (and Wrongs) for Religious Organizations: Works Made for Hire: Who Owns the Sermon?” is the third article of a three part series of articles on copyright law and religious organizations.

For the laborer is worthy of his hire.

Luke 10:7 KJV

Under the Copyright Act of 1976, a work is protected by copyright from the time it is created in a “fixed” form.  A “work” can be as varied as a written essay, a painting or photograph. It is “fixed” from the moment that the word is written down, the paint applied to the canvas or the photograph taken.  At that same moment the copyright immediately becomes the property of the author who created it.

But what about those situations in which the author has been hired by a third party to create the work? Does the author own the copyright or does the third party who has paid for the creation of the work? If a work is “made for hire,” the employer (who may be an individual or an organization) and not the employee, is considered the author and thus the owner of the copyright.

What is a “Work Made For Hire?”

Section 101 of the Copyright Act defines a “work made for hire” as:

  1. a work prepared by an employee within the scope of his or her employment; or
  2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Simply put, the statute states that it is the relationship between the parties that determines if a work is “made for hire”.  If the work is prepared by an employee within the sphere of employment, it is a work made for hire.  The Copyright Office gives examples of works made for hire in the context of the employment relationship:

  • A software program created within the scope of his or her duties by a staff programmer for Creative Computer Corporation;
  • A newspaper article written by a staff journalist for publication in the newspaper that employs him.
  • A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.
  • A sound recording created by the salaried staff engineers of ABC Record Company.

However, if the same staff programmer, journalist, arranger or engineer writes a novel or paints a painting on his own time and not within the “scope of his or her employment” he, and not his employer, would own the copyright.

These statutory definitions and examples would appear straight forward.  But in real life there are many twists and turns.  How do we know if someone is an employee and if the work created was within the scope of employment? Is a part time employee still an employee for purposes of copyright?  A volunteer would not seem to be an employee but could he be deemed an “employee” for purposes of copyright law?  Most importantly, is a clergy person an employee?  Is the writing of sermons within the scope of employment and if so, does she, or does her church own the copyright to her sermons?

Scope of Employment

The Copyright Act does not expressly define “employee” or “scope of employment,” and following enactment of the Act in 1976, multiple interpretations developed as to how to apply the work made for hire provision.  In 1989, the U.S. Supreme Court clarified the provision by recognizing that Congress intended the terms “employee” and “scope of employment” to be understood in light of the common law of agency. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740-743 (U.S. 1989).

To determine whether a hired party is considered an employee under the common law of agency, the Supreme Court looks to the Restatement (Second) of Agency § 220 (1958) and considers “the hiring party’s right to control the manner and means by which the product is accomplished” along with the following factors, no one of which is determinative:

 . . . the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party..

These factors are not necessarily of equal significance and should be weighed relative to their importance in an individual case. However, certain factors will be relevant in nearly every situation and should be given more weight because they are highly probative of the true nature of the employment relationship.  Those factors are:

(1) the hiring party’s right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects to the hired party.

Nine years ago, the application of these factors resulted in a determination that dances created after 1978 by Choreographer Martha Graham were prepared by an employee within the scope of employment such that Graham’s employer, ant not her estate, owned the copyright. Martha Graham Sch. and Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, 224 F. Supp. 2d 567 (S.D.N.Y. 2002), aff’d 380 F.3d 624 (2d Cir. 2004).  The first factor – the right of control — weighed in favor of the employer because even though the board of directors never exercised its power to control the creation of the dances, it still possessed the right to do so.  Graham’s significant artistic talent and skill did not preclude the employee relationship that creates a work for hire; it simply explained why her employer chose not to exercise its right of control over her work. In fact, a work can still be made for hire even if the artist has “complete artistic freedom.” See Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995).

Graham received a regular salary, benefits, reimbursement of expenses, and had taxes withheld from her salary. She created her dances on employer premises with employer resources, and creating dances was a regular activity of the employer.  Thus, the dances were deemed works for hire.

Whether a rabbi, minister, priest, or imam is an employee acting within the scope of employment in writing and delivering sermons is analogous to the Martha Graham case.  Though they may be part of the governing structure of their synagogue, church, or mosque, they generally must report up within some hierarchical structure. Even if the sermons are written away from church premises, they are delivered at the church, and offering sermons is certainly a part of the regular “business” of the church.

In addition to balancing the factors discussed above, a work made for hire is created within the scope of employment “only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the [employer].” See Avtec Sys. v. Peiffer, 21 F.3d 568, 571-72 (4th Cir. 1994).  If the first element is met, courts generally do not grant authorship right to employees based solely on the fact that the employee created the work at home or during off-hours.  And, to satisfy the third element, the employee must be “at least ‘appreciably motivated’ by a desire to further the employer’s goals.” Id. See also Restatement (Second) of Agency § 236 (employee work falls beyond scope of employment if “done with no intention” to serve master).  In other words, the motivation to further the employer’s goals need not be the sole motivation.

As an example, applying these elements to a copyright dispute between an employer and employee over a computer software program, the employee owned the copyright because computer programming was not the kind of work he was employed to perform and he did not conduct the work on the employer’s time or to further the employer’s goals. Roeslin v. District of Columbia, 921 F. Supp. 793 (D.D.C. 1995).  Rather, the employee was hired as a labor economist and his supervisor did not know of his programming skills upon hiring, he spent 3,000 hours at home outside of working hours conducting the work on a computer he purchased with personal funds, and even though the work benefited his employer, the employee’s chief motivation was to create new job opportunities for himself.

Applying the elements of the scope of employment test, writing and delivering sermons arguably satisfies all three required elements and falls within a pastor’s scope of employment.  First, sermons are the kind of work a pastor is employed to perform during worship services as the leader of the church.  Even if the sermon is based on personal spiritual experiences, delivering sermons is a part of a pastor’s employment relationship with the church.  Second, even if much of the pastor’s work in creating the sermon is done off of church premises or without church resources, the sermons are delivered at the church.  Furthermore, because the first element is met, courts generally do not vest copyright based solely on the fact that the employee created the work at home. Third, in writing and conducting sermons, a pastor is motivated by a desire to further church goals and that motivation needs only to be partial.

Religious Leaders Should Address Copyright Issues at the Time of Employment

It likely would come as a surprise to most pastors that the copyright in their sermons is owned by their employer/church.  As the owner of the copyright, the church and not the clergy person has the exclusive right to control the publication, broadcast reproduction of the sermon. This can become a contentious issue if the pastor leaves the church or if the pastor’s heirs believe that they, and not the church, are the owners of their parent’s work.  A subsequent agreement between the church and the clergy person to transfer the copyright may violate certain tax rules.  A better approach is to address the copyright ownership issue at the time of employment and to develop a copyright policy that covers all employees as part of the employee handbook.

David Posteraro is the Chancellor and former Warden of Trinity Cathedral Cleveland and a member of the Board of Directors of the Consortium of Endowed Episcopal Parishes. He is a partner at KJK specializing in intellectual property law.