“Thou Shall Not Steal”: Copyrighting the Word of God

“Thou Shall Not Steal”: Copyrighting the Word of God

Can you really copyright the Word of God?  Seriously.  The text of the Bible was written long before the United States Constitution wrote those famous words giving rise to the protection of intellectual property where Congress has the power … “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  U.S. Const., Article 8.  http://www.law.cornell.edu/constitution/articlei.    Obviously the Bible was in existence before the United States Congress passed into law the Copyright Act of 1976, which states in Section 201 that one obtains copyright ownership in an original work of authorship fixed in a tangible medium.  http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html#17usc102.  People often ask, “If old books are in the public domain, isn’t the Bible in the public domain?”  The answer to that question depends upon which translation you are talking about and when it was created.  Similarly, there are old religious texts that have been used by biblical scholars since…well…the beginning of time.  How can someone actually claim copyright ownership in these ancient religious texts?

Book of Kells

 

http://en.wikipedia.org/wiki/Book_of_Kells

Archbishop Gregory of Denver Colorado

          In a case that was brought to conclusion in 2010, Archbishop Gregory (“Archbishop”) of Denver, Colorado was sued in Massachusetts by the Society of the Holy Transfiguration Monastery, Inc. (“Monastery”) for alleged copyright infringement.   The Monastery alleged that the Archbishop had infringed its copyrights in certain religious texts that were translated from Greek into English by the Monastery.  The Archbishop posted those translated texts on his website, http://www.trueorthodoxy.info/.  The texts disputed included the Psalter Work, Prayer Book Work, Great Horologion Work, Pentecostarion Work, Collected Dismissal Hymns Work, and the Octoechos Work (collectively, the “Works”).  Soc’y of the Holy Transfiguration Monastery v. Gregory, 754 F. Supp. 2d 219.

Did copyright infringement really occur?  In the United States, a person has copyright ownership in for an original work of authorship fixed in a tangible medium.  17 U.S.C.S. § 102.  It is not enough to create something original, one must put it into a tangible form.  Creating and handwriting the words of a song by putting pen to paper is one example of fixing an original work into a tangible form.  In this case, the translation of the Greek texts is a literary work, and copyright protection extends to literary works. 17 U.S.C.S. § 101.  Under the United States Copyright Act of 1976,

“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. 17 U.S.C.S. § 101

The court found in the case of the Monastery against the Archbishop, “The Copyright Act protects translations of preexisting works, including religious texts, as original works of authorship. 17 U.S.C.S. § 102.”  Soc’y of the Holy Transfiguration Monastery v. Gregory, 754 F. Supp. 2d 219.

The United States has established that a literary work, including religious texts and translations of religious texts are protected under copyright law.  How can this be when it comes to the Word of God?  Was not the Word of God was in existence before man created any laws whatsoever to protect copyright ownership?  Surely these old writings do not get copyright protection or do they?

Common sense says that copyright law should apply to original works that are newly created; however, many may argue that copyright protection should not apply to certain works, like a Bible, that were in existence well before any such law was created.  If you happen to have a Bible nearby, open it to the title page.  There should be a copyright notice stating the date the particular translation you are holding was created.  Copyright protection extends to translations of preexisting works. Id.  The ancient texts in the Monastery case are preexisting works.  The translations of the Greek texts, not the original Greek texts, were created by the Monks in the Monastery beginning in 1975 and were published and/or registered with the U.S. Copyright Office on the following dates:

(1) the Psalter Work was published in March of 1975, and registered in 1975, and again in 1986;

(2) the Prayer Book Work was published in July of 1988, and registered in November of 1988;

(3) the Horologion Work was published in October of 1997, and registered in December of 1997;

(4) the Pentecostarion Work was published in 1990, and registered in June of 1986;

(5) the Dismissal  [**3] Hymns Work was never published, but was registered in December of 1987;

(6) the Octoechos Work was never published, but was registered in June of 1986.  Soc’y of the Holy Transfiguration Monastery v. Gregory, 754 F. Supp. 2d 219.

It is the translation of the ancient religious text that gets copyright protection even though the original text may be hundreds of years old and in the public domain.  The Monastery in this case took the time and effort to create their translations.  If another Monastery or someone else created another translation of these same original ancient Greek texts, that translation would be different and it too would receive copyright protection.  The translation’s meaning would be the same, but slight variations in word choice and other grammatical nuances would be evident, making the translation an original work by the translator.  Copyright law in the United States only requires a minimum amount of originality to be original.  “Original does not mean novel – ‘the requisite level of creativity is extremely low; even a slight amount will suffice.’ Feist, 499 U.S. at 345.”  Soc’y of the Holy Transfiguration Monastery v. Gregory, 754 F. Supp. 2d 219.

As an example of originality — if a group of people sat together outdoors in Denver, Colorado where the Archbishop Gregory serves his congregation, and each painted their rendition of the Rocky Mountains in front of them, each is creating what each sees.  Each picture created then, would be a unique interpretation of the painter’s version of the Rocky Mountains.  Their paintings will be affected by their own skill, talent and personal observation.  It can be argued that God created those Rocky Mountains and each painter is taking in the beauty of His Creation, but each person gets an individual copyright ownership in their unique expression put to canvas.   In other words, the paintings are an original work of authorship by each painter fixed in a tangible medium, which is the definition of copyright under the U.S. Copyright Act of 1976.  Copyright protection is in the paintings, not in the actual Rocky Mountains.

In this case, the Monastery prevailed upon this very basis.   The Monastery makes available for purchase some of its translated texts.  It may seem odd that sharing the Word of God has a price tag; however, once the underlying issue is understood, the originality of the translated texts becomes clear.  The Monastery gets copyright protection for the original translations it created, not for the Word of God.

Author’s NoteThis article examines only the narrow question whether the Word of God can be copyrighted, not whether the religious text were actually copyrighted in this case or whether either the Archbishop or the Monastery should prevail.  These issues are very complicated.  It frustrates people to discover that the law can be very strict on its face, but yet has many exceptions that make the rule not apply to a certain set of facts and circumstances.  Each case is different and how the law applies to each set of facts will not produce exactly the same results.  I plan to follow this article in the future with another about the Fair Use exception that might allow someone to use copyrighted material in limited circumstances.   The case referenced here is a case that could happen to anyone.  It became a case because there are really good arguments for both parties.  There are many common misconceptions regarding copyright law and who owns the copyright to a given work.  Before you use any material that you created or were created by someone else, have that material reviewed by a copyright attorney.    

Copyright 2011- DeGeorge Law LLC  www.degeorgelaw.com

Published byTimothy L. DeGeorge, Esq.

Tim DeGeorge, Esq. is an attorney focusing on privacy, media, trademark, copyright, technology, art and advertising law. A graduate of the S.I. Newhouse School of Public Communications at Syracuse University, Syracuse, New York and he received his Juris Doctor from the University of Denver, Sturm College of Law, Denver, Colorado. Mr. DeGeorge is licensed to practice law in the states of New York, Florida and Colorado, USA. Copyright DeGeorge Law LLC.

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