Fair use no defense to copyright infringement of church book

Content Regulation | Feature | September 26, 2000

    NMU         NINTH CIRCUIT         Copyrights & Trademarks         Sep 26, 2000    

Fair use no defense to copyright infringement of church book

  • A religious group’s republication of another church’s retired book was copyright infringement and not protected by the fair use defense, a federal appeals court ruled

One church's republication of another's retired religious text amounted to copyright infringement not protected by the fair use defense, the U.S. Court of Appeals in Pasadena (9th Cir.) held on Sept. 18. The four statutory fair use factors tipped in favor of the copyright holder, the court held.

The Worldwide Church of God owned the copyright to "Mystery of the Ages," a religious text written by its founder, Herbert Armstrong, in 1985. Church leaders retired the book from publication in 1987 after Armstrong died because, they claimed, the book contained racist views.

In 1989, two ousted Worldwide Church ministers formed their own church, the Philadelphia Church of God, which strictly adhered to Armstrong's teachings. The Philadelphia Church copied "Mystery" verbatim and distributed more than 30,000 copies of the book.

The Philadelphia Church argued the fair use defense protected its publication and use of the book because it used the text for religious purposes and did not charge for copies.

The federal appeals court examined the four fair use factors outlined in the federal Copyright Act and held the balance tipped in favor of the plaintiff, Worldwide Church.

The first factor, "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," favored Worldwide Church. The court held the Philadelphia Church "profited" by having free access to the copyrighted work and by attracting new members with the book

The second factor, "the nature of the copyrighted work," also favored Worldwide Church because Armstrong made the book more fictional than factual. Traditionally, the court noted, the fair use defense is more applicable to works of fact.

The third factor, "the amount and substantiality of the copying of the original work," also favored Worldwide Church because Philadelphia Church copied and published the entire work. The federal appeals court rejected the plaintiff's argument that verbatim copying was reasonable for religious purposes. "Philadelphia Church uses 'Mystery of the Ages' as a central element of its members' religious observance; a reasonable person would expect Philadelphia Church to pay Worldwide Church for the right to copy and distribute" the book, the majority opinion stated.

The federal appeals court held the fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work," was "at worst, neutral." The non-profit status of the Worldwide Church and the end to the book's publication did not control the court's analysis.

"Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first because the relevant consideration was the 'potential market' and, second, because he has the right to change his mind," the court stated.

On the three-judge panel, Judge Melvin Brunetti dissented, holding the first and fourth factors favored Philadelphia Church and the other two factors were largely irrelevant. Brunetti emphasized that Philadelphia Church was a non-profit group which relied on the text to spread its religious message. Brunetti also noted that the text was otherwise unavailable and that Philadelphia Church did not charge for copies. Finally, Brunetti opined the Worldwide Church did not lose money due to the Philadelphia Church's publication because the later did not sell the book.

(Worldwide Church of God v. Philadelphia Church of God; Media Counsel: Mark B. Helm and Kelly M. Klaus, Munger, Tolles & Olson, Los Angeles) -- DB


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