A Greek Orthodox Monastery brought a copyright suit alleging that an archbishop had infringed a series of its translations of religious texts and that the Archbishop had breached a Settlement Agreement reached in a prior lawsuit involving one of the disputed works.

Ownership

The Archbishop argued that the copyright to one of the works should as a matter of church law be transferred to the Rusian Orthodox Church Outside Russia. The argument was derived from an ongoing dispute that arose when the Greek Orthodox Monastery elected to leave the ROCOR. In 1994, the Massachusetts Supreme Judicial Court found that the Greek Orthodox Monastary was congregational in terms of property ownership and was the sole owner of all of its assets, not the ROCOR. See, e.g., Primate and Bishops’ Synod of the Russian Orthodox Church Outside Russia v. Russian Orthodox Church of the Holy Resurrection, Inc., 418 Mass. 1001, 636 N.E.2d 211 (1994). The Court found that it didn’t need to re-open the dispute because there was no written transfer:

The court need not, however, accept the Archbishop’s invitation to delve into the intricacies of the doctrine of neutral principles as it applies to ecclesiastical disputes. The Copyright Act provides a simpler statutory answer. After 1978, a transfer of copyright, other than by operation of law, “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204(a).

As a side note, you can’t say for certain from the factual record, but this case may raise similar issues to those discussed in Schrock v. Learning Curve International, Inc., No. 08-1296 (7th Cir. 2009).  The exclusive rights granted to a work employing preexisting material covered by copyright, such as many translations,  do not extend to any part of the work in which the material was used without permission. 17 U.S.C. 103(a).

If the greek text of the disputed work contains copyrightable subject matter added by the ROCOR, such as annotations or editing choices made recent enough so that they are not in the public domain, the Monastary may, or may not, possess exclusive rights in its translation of the text. The outcome would depend on whether the Court adopted the Seventh Circuit’s finding from Schrock that when a rightsholder grants permission to a second author to make a derivative work, barring an agreement between the parties otherwise, the second author retains a copyright in the derivative work, even if the rightsholder later attempts to revoke permission.

Fair Use

The Archbishop’s copying of one of the works at issue omitted footnotes and three words, added some question marks, changed the spelling of six words, and added some headlines.  The Court found that the work was substantially similar to the Monastery’s.

The Court then looked to whether the copying was a non-infringing fair use. The Court cited Campbell v. Acuff Rose for the proposition that not only is fair use an affirmative defense, but that a defendant has a “burden of proof” to show that the copying was non-infringing. The Court found that the use of the work was infringing.

Purpose and character

The Archbishop argued that his use was non-commercial (purely for devotional purposes), which was not disputed, and that his use was transformative because he placed a portion on the internet. The Court rejected the argument finding that a “simple repackaging” of a work in a new media context is “not transformative when the result is simply a mirror image reflected on a new mirror,” and found that the factor weighed in favor of the Monastery.

Nature of the copyrighted work

The Archbishop argued that the work at issue was factual as part of his religion, and as such, the factor weighed in favor of a finding of fair use. The Court found that the work was more closely akin to a creative work:

As a theological precept, this may ring true to a believer, but from an objective legal perspective, a religious contemplation in the form of a Homily (an admonitory sermon or discourse) falls more appropriately within the category of a work of imagination and creativity. While a translation is by definition derivative, some translations-the King James Version of the Bible comes to mind-are nonetheless thought to be “original in their own right.” This factor, on the whole, weighs in favor of the Monastery.

The amount and substantiality

The Court found that the Archbishop  incorporated the entirety of one of the works on his website for “no apparent purpose other than avoiding the trouble and expense of creating a version of his own.”

Market harm

The Monastery did not allege any specific lost sales or profits as a result of the infringement. The Monastary instead noted that it has had to expend time and resources to enforce its rights in the work. The Court found that, “given Campbell’s emphasis on the deterrence of injurious conduct by others as a consideration separate and apart from a showing of actual market harm, this factor too weighs in favor of the Monastery.”

What happens if a party purchases a copyright from a copyright owner, and then the now former copyright owner turns around and sells the copyright again to a third-party? 17 U.S.C. 205 governs these situations and all of their messiness:

As between two conflicting transfers, the one executed first prevails if it is recorded, in the manner required to give constructive notice under subsection (c), within one month after its execution in the United States or within two months after its execution outside the United States, or at any time before recordation in such manner of the later transfer. Otherwise the later transfer prevails if recorded first in such manner, and if taken in good faith, for valuable consideration or on the basis of a binding promise to pay royalties, and without notice of the earlier transfer.

This provision essentially makes the Copyright Act a modified race-notice statute. If there are conflicting transfers, the person who first recorded their acquisition with the Copyright Office prevails provided that they were a bona fide purchaser for value, and they had no notice of the previous transfer.

There was a case in the federal district court in Puerto Rico on October 8 that addressed what happens when a person’s notice of transfer to the Copyright Office is defective. UMG acquired a copyright, that was later also assigned to Latin American Music. LAM provided notice of the transfer to the Copyright Office before UMG did, but, perhaps trying to save money on the Copyright Office fees, its notice covered a group of songs, not just one song. UMG cried foul, arguing that the notice was invalid. The Court rejected the argument finding that the Latin American Music’s filing gave it priority, even if it didn’t meet the specificity requirements set forth in 205(c):

Universal also points out that the recorded document in this case lists too many songs for it to conform with the specificity requirements of 17 U.S.C. § 205(c). However, that disposition merely deals with whether or not a recordation document in the Copyright Office may give constructive notice of the facts stated therein. Such disposition is inapposite as to whether or not LAMCO’s transfer takes priority over EMLASA’s, an issue that is governed by 17 U.S.C. § 205(d).

It may be difficult to reconcile the Court’s finding with a plain language reading of Section 205, but the Court’s finding is hardly surprising. The federal courts don’t take kindly to the Copyright Act’s paperwork requirements. This is but one instance forming a broader trend of federal courts looking past paperwork provisions so as to achieve what they see as just decisions.