In the process of collecting items for my digital exhibit on the Judson Memorial Church I’ve come across an interesting copyright dilemma that I want to share with all of you. Hopefully my experience will help those in similar situations, and (with enough blog promotion) perhaps even future students of digital history!
Diverse in their missions, histories and congregations, Greenwich’s religious institutions stand as testaments to the transformations and invariabilities of the Village. As I know from first hand experience working with the Judson Memorial Church archives, churches play a crucial role in the many histories of Greenwich, and their records offer incredibly rich fodder for students of the Village. But as we all know (or are quickly learning), creating a digital exhibit is not simply about determining a thought-provoking topic, unearthing valuable archival items to digitize, or structuring all of these disparate elements into a cohesive display. A crucial component of any digital or physical exhibit is navigating the slippery (some might say slimy) realm of copyright laws.
I’m sure that by this point we’ve all experienced the joys and frustrations of securing permissions for the more elusive items in our own exhibits. In my work on Judson, I’ve stumbled upon a particularly confusing copyright issue just begging for a constructive debate. While digging through the boxes of the Judson archives, I discovered the Rev. Howard Moody’s startling sermon “Humanizing the Hooker” (see my earlier blog post if you’re interested in discovering more about this dynamic community leader). Interested in scanning this document for use in my own digital exhibit, I contacted the Judson Memorial Church and received institutional permission. But as I prepared to mount the document to Omeka, I was filled with doubt. As creator of the document, does Moody himself own the rights? Should I proceed with the permissions granted by the institution, or should I contact Moody’s estate? After all, if the creator in question were a professor and the document a lecture, my publication would undoubtedly require permission from the professor herself. How is a sermon, then, any different than a lecture? How does a clergyman differ from a professor? Who owns the rights to Moody’s sermons?
Although by and large copyright law recognizes the creator of a work as the author, and therefor lawful copyright holder, there are a few exceptions to this rule. The 1976 Copyright Act distinguishes a class of works as “works for hire.” Defined as either “a work prepared by an employee within the scope of his or her employment” or “a work specially ordered or commissioned for use as a contribution to a collective work…” a work made for hire is considered by law to be authored by the employer (which can be an institution, or an individual) rather than the employee (Works Made for Hire 1).
As an “employee” of the Judson Memorial Church, should Rev. Moody’s sermons be considered works for hire? The public debate surrounding similar cases suggests that there is no easy answer. Blogging for Christianity Today, Richard R. Hammar, an attorney specializing in ecclesiastical legal issues, argues that the majority of sermons produced by clergy are works for hire. Hammar reasons that because sermons are most likely created on church property, by a church employee, during church work hours, as a primary function of the occupational duties of a minister, they fall solidly within the scope of employment. Therefore, all rights to sermons are reserved by the church (Hammar). Following Hammar’s counsel, Moody’s “Humanizing the Hooker” is a work made for hire, and Judson Memorial Church owns the copyright.
Yet not everyone agrees with Hammar’s logic. The legal firm Yates & Yates, a “creative counsel for top-tier authors, artists, and creative organizations,” hosts a four part blog series on their website entitled “Who Owns the Pastor’s Sermon?” In part four, Matt Yates summarizes his argument that the sermon lies “outside the course and scope” of the pastor’s employment (Yates). According to Yates, by definition a sermon cannot be deemed intellectual property until “reduced to a reproducible medium” (Yates). As many clergy deliver their lectures off the cuff and without a recorded component, the production of a sermon is not akin to the creation of intellectual property. Yates concludes that the scope of the pastor’s employment is to “preach, teach and lead the flock, not create intellectual property assets for the church to own and exploit” (Yates).
Ultimately (and frustratingly) the slippery slope of copyright law provides no clear answer to my Moody dilemma. I for one don’t find Yates’ logic entirely convincing. But I am also troubled by the implications of Hammar’s conclusion. If we understand a sermon as a work for hire, then a minister who leaves her post at one church to work at another would retain no rights to her own creations. Anyone who has experienced the force and beauty of a well-composed sermon will find this lack of accreditation disconcerting.
Time to open it up for debate – what do you think? Are sermons works for hire that belong to the church, or are they the intellectual property of their creators? Should this issue continue to be handled on the level of individual church policy, or should broader steps be taken to secure the rights of church employees?
Hammar, Richard R. “Who Owns a Pastors Sermons?” Christianity Today. 19 September 2011. Web. 28 October 2012. < http://blog.managingyourchurch.com/2011/09/who_owns_a_pastors_sermons.html>
“Works Made for Hire Under the 1976 Copyright Act.” United States Copyright Office. September 2012. Web. 28 October 2012. <http://www.copyright.gov/circs/circ09.pdf>
Yates, Matt. “Who Owns the Pastor’s Sermon? Part 4.” Yates & Yates. 21 July 2012. Web. 28 October 2012. < http://yates2.com/blog/2011/07/who-owns-the-pastors-sermon-part-4/>