Authorship and Religion

Claims to copyright in religious texts are not uncommon and may raise no real problems, depending on whom the claimant is. Neither the Copyright Office nor the courts delve into whether the work is "religious," but whether the claimant of a purported religious text is in fact the author or derives rights via a valid transfer from the author is as fair game for religious works as it is for secular works.

For starters, the Copyright Office sensibly interprets the Act as requiring human authorship. If, for example, a claim is submitted by a human being who claims to be a medium for the creations of an otherwordly being, the claim is invalid both because the otherwordly being is not a human and because the claimant is not an author, but is instead merely a scribe. See Oliver v. St. Germain Foundation, 209 F. Supp. 53 (S.D.N.Y. 1913), aff'd, 219 F. 178 (2d Cir. 1914). An English judge later felt the same way, see Cummins v. Bond , (1927) 1 Ch. 167, in which the plaintiff medium claimed rights in "automatic writing'' from a 1900-year-old spirit. The court held that ''authorship and copyright rest with some one already domiciled on the other side of the inevitable river,'' id. at 175.

These principles were weakened by Judge Sweet in Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., 55 USPQ2d 1680, 1691 (S.D.N.Y. 2000), where plaintiff made the claim that Jesus was the author of the work and that she was merely the medium. Jesus also allegedly communicated to her the unprecedented, but quite adamant instruction to register the material with the Copyright Office. When the Office refused an application listing Jesus as the author, the claim was amended to read "Anonymous (Helen Schucman").

Judge Sweet chose to disbelieve Ms. Schucman's claim that Jesus was the author, based in part on "common sense" and in part on an inability to separate fact from belief. In so doing, I think the Court did make a religious judgment, namely, that Jesus wasn't the author. (There are, of course, other grounds for bouncing a claim submitted by Jesus, and one wonders how long the term of protection would be). Taking Ms. Schucman at her word avoids enmeshing courts in religious determinations and is simply an application of a general doctrine of authorial estoppel: if X publicly says Y created the work, in a later infringement action against Z, X will be held to the statement that Y created it.

These claims should be distinguished from claims by human authors who trace their inspiration to alleged divine sources, whether it is Scientologists referring to the "lingering spirits of extraterrestial people massacred by their ruler, Xenu, over 76 million years ago," Religious Technology Center v. Lerma, 40 USPQ2d 1569 (E.D. Va. 1996), and from cases where works by human beings are regarded as religious texts, such as those by Mary Baker Eddy. We should also distinguish translations of mainstream religious texts, like the Chumash (the first five books of the Bible), which are protected as derivative works like any secular work and subject to the same standards.

There appears to be no area where general copyright principles can't handle claims involving copyright in religious works.