Category: church property

INVISIBLE LANGUGE IN CHURCH PROPERTY DEEDS

Whether a local church can break away (“disaffiliate” in some groups) from a denomination, and whether the local church has followed the procedure to do so to conclusion, are usually very difficult inquiries.  Because the determination of whether there is an ability to break away, and whether it has been done, usually determine who owns the local church property some courts are tempted to decide these issues as if they were amenable to review under Neutral Principles of Law.  Others refuse to decide the issues under the Ecclesiastical Abstention Doctrine.

In Blue v Church of God Sanctified, Inc., Slip Op. (Tenn. App. 2022), the trial court refused to determine whether the local church “disaffiliated” by holding the issue was shrouded in the Ecclesiastical Abstention Doctrine.  Nevertheless, because the denomination determined that the local church held the church property in trust for the denomination, the trial court held that decision was also shrouded in the Ecclesiastical Abstention Doctrine.  The Tennessee Court of Appeals in its lengthy and detailed opinion affirmed the trial court.  While the appellate court authorized trial courts to review all governance and property ownership documents, the decision of the denomination that the local church property was held in trust for the denomination was ecclesiastical if it was enshrined in denominational governance documents.  That was so regardless of whether or not the local church property deed contained a “trust clause” making the local church owner a trustee for the denomination.

Courts were sometimes hung up on the boundary between the ecclesiastical and secular property ownership.  Such courts can elevate the presence or absence of language in deeds above denominational governance documents, or even local church governance documents.  The approach in the reported case avoids blurring the ecclesiastical boundary by elevating the denominational governance documents and relying on other documents only in the event of silence or ambiguity in the denominational governance documents.

CHURCH COPYRIGHTS AND TRADEMARKS

Most of churches have done very little to copyright or trademark their marketing (aka evangelism) symbols.  During the pandemic of 2020, with the rise of fully on-line services, copyright and trademarking of a church or pastor’s online persona might have been expected.  Few seem to have done so.  To do either correctly requires engagement of a qualified attorney.  Most church materials are not strictly of commercial value.  Such materials have a short “shelf life” and are easily duplicated in forms that do not violate copyrights or trademarks.  By the time most churches consider copyrights or trademarks, it is too late for a host of reasons to obtain an enforceable right, usually because the church has spread its materials far and wide without protection and tolerated even close “copycats” much less remotely similar ones.

In Aquarian Foundation v Lowndes, Findings of Fact and Conclusions of Law, Slip Op. (WD Wash. 2022), the federal trial court in a bench trial concluded the claim of the church to protect its copyright and trademark was not enforceable against the Defendant.  The church founder copyrighted his own material and owned the copyright.  The copyright was of his teaching materials and was transferred in his Will to the church.  Many years before his death, the founder gave a written license for use of the materials to the Defendant.  The church revoked the license long after the Defendant posted the materials online and used the trademarked name for many years.  In order to revoke the license, the church had to give two years notice but attempted to make the revocation immediate.  At trial the church could not prove loss of revenue from the alleged infringements.  At trial the church tried to present testimony of a handwriting expert to prove the license given to Defendant was a forgery.  However, the methodology used by the expert, use of exemplars that could not be proven to be authentic, was rejected by the Court.

Copyrighting and trademarking intellectual property is not easily done.  Infringement enforcement may take years and may be subject to setoffs and adjustments.  See e.g., Bright Tunes Music Corp. v Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y.1976) (“My Sweet Lord,” George Harrison, former Beatle); ABKCO Music, Inc. v Harrisongs Music, 508 F. Supp. 798 (SDNY 1981) (“$587,000” after adjustments).  Church intellectual property has a very limited shelf life and is easily replicated without obvious duplication.  Much church intellectual property is fair game for “fair use.”  17 USC §107.

ATTACKING THE CHURCH LAWYER

Clients often turn on their lawyers.  The criminal conduct or tortious actions for which the client is being held responsible sometimes cannot be evaded.  Especially in those situations the client will often blame their own lawyer for their predicament.  The sad fact is that in by far the majority of cases, the client got all the help they could afford and probably more compassion than they deserved from their own lawyer.  Such clients are usually turning on the only friend they may have left.  For the client, it usually does not end well.

In Burri Law PA v Skurla, Slip Op. (9th Cir. 2022), the United States Court of Appeals for the 9th Circuit reversed dismissal of a defamation case by a federal trial court sitting in Arizona.  The Plaintiff law firm represented the Eparchy of Arizona.  The law firm was called upon to investigate the ERISA benefits plan of the denomination.  The law firm allegedly requested plan documents and was refused.  The law firm, however, allegedly discovered and then in an ERISA based federal lawsuit sued upon illegally commingled Plan funds, converted Plan assets, and offshore accounts.  To evade the claims, the denomination sought to merge the Plan of the Eparchy of Arizona with other plans held by other eparchies.  Meanwhile, leadership of certain other eparchies allegedly defamed the law firm to induce the Eparchy of Arizona to terminate the representation of the law firm.  The presiding officer, seemingly later, of the denomination ordered the Eparchy of Arizona to terminate the law firm and dismiss the ERISA lawsuit.  The law firm sought payment of its fees and was sued for malpractice.  The law firm began a second lawsuit alleging the eparchies and the denomination tortiously interfered with the law firm’s contract with the Eparchy of Arizona and defamed the law firm.  The 9th Circuit reversed the trial court dismissal and held there was no ecclesiastical issue requiring abstention by the court.  Turning on their lawyer did not end well because the lawsuit brought by the law firm was ordered to proceed.

While an “in house” lawyer may or may not be subject to ecclesiastical authority to the same extent as any other employee, an “outside” lawyer or law firm’s relationship is solely by secular contract even if one or more law firm members are members of the church or denomination represented.  To make the outside law firm subject to canon law would require contractual language in the engagement agreement that is not customary or usual in contracts with lawyers.  Indeed, another independent lawyer would have to draft or approve the language of the agreement.  Defamatory statements about an outside lawyer or law firm, or any other third persons, should be avoided unless the truth of the statements cannot be reasonably disputed or there is no other way to resolve a schismatic incident.

DETERMINING PATERNITY

Determining whether a local church is a “member” of a denomination is usually no harder than looking at the name on the building or the signage.  But, sometimes determining church paternity requires a review of church governance documents at both the local and denominational level.  Church property issues may also include review of property deeds and state laws governing non-profit corporations or associations.  Further, if a local church attempts to end its denominational “membership,” whether it can unilaterally do so or do so at all, requires review of these documents as well as creation of “divorce” documents.

In District Advisory Board, Church of the Nazarene v Centro De Alabanza Oasis, Slip Op. (FL. App. 2022) the trial court granted summary judgment to the local church based on the local churches’ attempt to end its membership in the denomination.  The appellate court reversed.  The trial court was required to conduct a review of the evidence to determine whether the denomination was hierarchical.  If so, the denomination would control the property of the local church.  The trial court also had to determine if the local church was actually a “member” of the denomination.  The reported case recited instances in which the local church arguably admitted it was a denominational “member,” starting with the signage, and in documents submitted to the denomination to end the membership.  The documents submitted to end the “membership” were arguably insufficient.

Local churches contemplating a departure from a denomination should determine if it is possible and probably engage a lawyer with writing skills to assist in completing the documents.  Other departure strategies may have to be considered, too.  Clinging to property without careful consideration of the foregoing can burn through the cash needed to start a new church.