Applying fair use / the idea-expression dichotomy as to religious works

[Thomas C. Berg]

Somewhat belatedly, here are some thoughts on the problem
of whether copyright doctrine requires the court to make
theological judgments that are legally inappropriate.
Examples might include:

  (i) Defendant asserts that he needs to use the entire
work because it is his scripture and every word is fraught
with inspired meaning; fair use law generally asks the
court to evaluate, among other things, whether the
defendant is using more than he needs to for the particular
use (journalism, parody, etc.)  Can a court judge this?

  (ii) Defendant asserts that because the words of the work
are divinely inspired, it must use the verbatim words and
not just paraphrase them.  Ordinarily the plaintiff can
stop others from using the verbatim words but not a
paraphrase, but if the verbatim words are crucial to
expressing the underlying idea then plaintiff cannot stop
them.  Can a court evaluate a religious work in this way?

   (iii) "Factual" works get less protection from copyright
than "creative" works, both under the idea-expression
distinction and under the fair use doctrine.  Can a court
evaluate whether a religious scripture is "factual" or
"creative"?

Here are some thoughts:

1.  Sometimes a court can dodge the problem.  Take
example (i) above.  Under the fair use doctrine, the
question of how much the defendant used compared with his
critical or journalistic purpose is only one factor among
several for the court to consider.  Courts in fair use
cases often say that one particular factor doesn't cut for
either party and decide the case on the basis of other fair
use factors, and they could do the same here.  They could
punt on the question whether the defendant took more than
he needed to -- view that question as a wash -- and decide
on the basis of other factors such as whether the
defendant's use affected the market for or value of the
work (which usually does not require any theological
judgments).

2.  Sometimes a court *can* decide the legal issue without
making a theological judgment.  For example, in one of the
Scientology cases, RTC v. Scott, 660 F. Supp. 515 (C.D.
Cal. 1987), the question was whether a certain Scientology
manual describing a part of the "auditing" procedure was
infringed by D's very similar document.  The defendant said
no because the underlying procedure was not copyrightable
("processes" and "systems" are not copyrightable), and the
similarities in the explanatory documents were just the
necessary result of similarities in the procedures.  But as
the court read the case, the defendant made no
*theological* claim about the special inerrant status of
the manual's text -- just an ordinary claim, common in
cases about explanatory works, that the text was the
simplest and clearest way to explain a similar process and
therefore others had a right to copy it.  The court said
that it could evaluate that claim in secular copyright
terms:  "[b]oth works deal, not with abstract matters of
religious principle, but with concrete applications laid
out step-by-step.  If A happens, the student auditor is
told, do B."  The opinion doesn't say enough to tell us
whether the court was right in seeing this particular
dispute as resolvable in secular terms; but the court could
have been right.

3.  Sometimes, more precise understanding of copyright
doctrine can help solve the problem with minimal
theological judgment.  For instance, in example (iii)
above, a "factual work" receives less broad copyright
protection than a "creative" work, as I said; however, the
definition of a "factual" work is not "a true or accurate
work" (which would of course be improper for a court to
determine), but rather "a work *intended* to convey
information" as opposed to one intended as an imaginative
product.  To resolve that issue then, I would look to the
plaintiff's (or more precisely the author's) purpose for the
work.  That still may be hard to determine, but the court
need not make its own independent theological judgment.

4.  Finally, in those situations where it really is
unacceptable for the court to decide the case under
copyright principles -- where a crucial element in the
court's decision would be an independent theological
judgment that is simply improper for the court to make --
then I would be inclined to decide for the defendant, at
least where the defendant has a serious claim of a
religious need to use the work, and plaintiff has refused
to license it at a nonprohibitive price (which I thought
was the case in WCG v. PCG).  I would defer to the
defendant in such cases because of the general balance of
equities:  barring the defendant's use of a scripture will
prevent or seriously restrict him from practicing his
religion, while allowing the defendant's use will not
interfere with the plaintiff's practice.

Tom Berg








On Thu, 21 Sep 2000 14:17:48 -0700 "Volokh, Eugene"
<VOLOKH at mail.law.ucla.edu> wrote:

>         I think Tom Berg has an excellent point, and one
I hadn't heard > about before, when he suggests that
applying a fair use or idea-expression
> analysis to religious copyright disputes may seriously
and improperly > require courts to pass judgment on
fundamentally religious questions -- > "whether the
verbatim expression of a religious scripture is crucial to
the > underlying idea," "what amount of copying is
necessary for the defendant's > fair-use purpose," and the
like. >
>         This sort of judgment about fundamentally
religious questions does > not happen when courts are asked
to enforce rights in tangible property, > because the
boundaries of the tangible property are generally defined
in > much clearer and less subjective ways.  But I think
it's this very concern > about courts deciding religious
issues that has led many courts to refuse to > recognize
causes of action for clergy malpractice or (per most courts
that > have considered this) negligent hiring of clergy
(which would require courts > to, for instance, define a
standard of care for the reasonable Catholic > priest); to
strike down Kosher enforcement laws; to refuse to enforce >
certain contracts, such as such clergy employment
contracts, to the extent > that they require subjective
decisions about religious matters; and to bar > libel
recovery where the determination of truth or falsehood
would require > judgments about religious law. > >
But what is the law to do with this?  Should it deny any
copyright > protection to religious works, at least in the
face of even a remotely > colorable fair use / taking of
idea defense, because of the risk that > enforcing them
would cause this sort of improper entanglement?  That
doesn't > seem right, even despite the analogy to the
refusal to enforce contracts and > to allow certain kinds
of libel verdicts.  Should it deny any fair use > rights or
rights to paraphrase, thus avoiding entanglement but by
burdening > would-be users rather than by burdening
authors?  That doesn't seem right. > Or it can muddle
through and try to make the decisions as best it can; but >
isn't that the very sort of thing that was properly
rejected in the contexts > I identify in the previous
paragraph? > >         So I'm not sure what the answer, but
I think Tom identified an > excellent question; and I'd
love to hear others' views on it. > > Tom Berg writes: > >
I'm also interested in hearing what Eugene or anyone else >
has to say about the idea that copyright sometimes requires
> theological evaluations that may be improper for courts:
> like what amount of copying is necessary for the Df.'s >
fair-use purpose, whether the verbatim expression of a >
religious scripture is crucial to the underlying idea and >
therefore unprotected, whether a religious scripture is >
"factual" or "creative" in nature (which affects the scope
> of both infringement and fair use), and perhaps other >
issues. > > >

-----------------------------------------
Thomas C. Berg, Cumberland Law School Samford University
Birmingham, AL 35229 (205)726-2415
Email: tcberg at samford.edu