United States: Fox News Reports Copyright "Attack On Christians" – The Fair And Balanced Use Defense

Last Updated: March 14 2014
Article by David A. Kluft

Fox news recently reported on a dispute between Gulfport, Mississippi resident Kelly Taylor and her local Walgreens pharmacy. Ms. Taylor, using Walgreens' online photo 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 group 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 Church 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 Board 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

So, 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.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
22 Aug 2018, Webinar, Boston, United States

After years of debate, the Massachusetts Legislature recently passed a comprehensive noncompete reform law, and Governor Baker signed the bill on August 10, 2018.

12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions