Fox News Reports Copyright “Attack on Christians” – The Fair and Balanced Use Defense

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Fox news recently reported on a dispute between Gulfport, Mississippi resident Kelly Taylor and her local Walgreens pharmacy.  Ms. Taylor, using Walgreens’ online Capturephoto service, attempted to print out a few pages of the Bible to hand out to members of her church. Walgreens refused, citing copyright law. When Walgreens told Taylor that it would require approval from the author, she informed the store that God was the author so “who exactly would I get the approval from?”

Ms. Taylor was “in total shock,” so she contacted Fox News and declared that this was an “attack on Christians.” In the resulting story, Fox News explained that copyright law only protects work for the life of the author “plus 50 years,” and that it “has never applied to the Good Book.”  Therefore, Walgreens’ position was “ludicrous.”

Is that right? Granted, Fox News got the “plus 50 years” thing wrong  – it’s actually life of the author plus 70 years, at least in the United States. But isn’t it otherwise correct? After all, we may disagree about the source of Biblical text, but nobody argues that it was authored after 1923, so it must be in the public domain whoever the author is.

Well, yes and no. Even if the original text is in the public domain, any additional creative work added by the publisher would be copyrightable, either in its own right or as a derivative work.  This might include, for example, a new translation, commentary or images. In this case, it turns out that the Bible Ms. Taylor was trying to copy was an illustrated version. So, in addition to the ancient public domain text, it also contained artwork drawn by a much-less-than-ancient artist, and this artwork was most likely copyrighted. That’s why Walgreens wouldn’t copy it.

Copyright Infringement And Religious Texts

Is the moral of the story that simple: ok to copy old stuff; not ok to copy new stuff?  Aren’t there any special considerations in copyright law for religion? In fact, Congress has provided a narrow exception for the performance of dramatic and musical religious works, codified at 17 U.S.C. § 110. But there is no such exception for the unauthorized copying of religious books. In the absence of such an exception, defendants have asserted a variety of creative defenses when accused of infringing the copyrights in religious texts. Here are a few:

God as Author. In Urantia Foundation v. Maaherra, the subject was the Urantia Book, published in 1955 after it was purportedly dictated by “celestial beings” to a Urantiagroup of psychiatric patients in Chicago. The defendant, who had been distributing unauthorized copies of the book, argued that the plaintiff’s copyright was invalid because celestial beings, like animals or computers, could not be “authors” for copyright purposes. This argument echoes the somewhat tongue-and-cheek issues raised by Thomas Cotter in his article, Gutenberg’s Legacy: Copyright, Censorship and Religious Pluralism. Professor Cotter opined that copyright protection for celestial beings would be problematic because: (1) they live forever, thus violating the Constitutional mandate that copyrights can only last for a “limited term,” and (2) they can’t sign written instruments, so earthly institutions can’t prove that the copyright has been transferred to them. Not surprisingly, the Ninth Circuit sidestepped these  metaphysical arguments by holding that “a work is copyrightable if copyrightability is claimed by the first human beings who” compile and arrange it in a tangible literary form.  Effectively, the god and the prophet are joint authors.

Fraud on the Copyright Office. A twist on the God-as-Author argument was advanced by the defendant in Penguin Books USA v. New Christian MiraclesChurch of the Full Endeavor. That case concerned A Course In Miracles, a religious textbook purportedly dictated by Jesus to psychologist Helen Schucman. In 1975, Jesus directed Schucman to copyright the book. According to Schucman, the son of God “was quite adamant about this.” Unable to register the work on behalf of a “a non-physical author such as Jesus,” Schucman told the Copyright Office the work had been authored by “Anonymous (Helen Schucman).”  The defendants argued that Schucman had no valid copyright because she fraudulently took credit for Jesus’ work. But the Southern District of New York, following the Ninth Circuit’s lead, held that Schucman was close enough to an author for copyright purposes, so there was no fraud.

The First Amendment. Some defendants have argued that applying copyright law to restrict or burden the exercise of religion is a violation of the Establishment Clause and/or the Free Exercise Clause of the First Amendment. This defense did actually work in United Christian Scientists v. Christian Science MBEddyBoard of Directors.  However, that case concerned not the Copyright Act but Private Law 92-60, an ill-conceived attempt (supposedly by Christian Scientists within the Nixon administration) to grant an extra-long copyright term to the works of Mary Baker Eddy. Otherwise, First Amendment arguments have generally been rejected on the grounds that copyright law can be neutrally applied without a court deciding doctrinal disputes or entangling the state in church affairs.

Fair Use. And of course, there is always the fair use defense.  “Religious” copying is not one of the archetypal fair use categories set forth in 17 USC § 107, but it is certainly a non-commercial use, so that should count for something, right?  Well, not always. In Worldwide Church of God v. Philadelphia Church of God, the defendant church had broken off from the plaintiff church, and was distributing copies of both groups’ founding spiritual text. Although the defendant was giving the copies away for free and for clearly religious purposes, the Ninth Circuit rejected its fair use argument because the copies superseded the original work, and because the defendant’s distribution, although not for monetary gain, resulted in a “profit” of sorts, in that it had attracted thousands of new members.

The Fair – And Balanced – Use Defense

Fox News ChannelSo, what do you do if faced with a charge of religious copyright infringement? The fair use defense doesn’t work, so how about the fair and balanced use defense? In other words, call Fox News. That’s what Kelly Taylor did and, unlike all those other defenses asserted by clever copyright lawyers, this one seems to have worked. Hours after Fox News took up her cause and contacted Walgreens’ corporate headquarters, Ms. Taylor received an apologetic email informing her that her order was ready for pickup — at no charge!  Ms. Taylor, happy finally to have her possibly-infringing copies, is “praying that Walgreens learns that the Bible doesn’t belong to anyone, it belongs to everyone.” Meanwhile, Fox News has called Taylor’s quick victory “a teachable moment.”  About what is unclear.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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