Wednesday, August 10, 2005

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.

7 comments:

Anonymous said...

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

I don't know about that--what about the indigenous "cultural property" movement, which argues that general copyright principles are inadequate to protect their traditional (including religious) patrimony?

Anonymous said...

What if Schucman had claimed that Jesus transferred rights in the work to her?

William Patry said...

Dear Anonymous:

I have paid only a little attention to the indigneous cultural property movement, but I don't think that is a religious issue, rather one dealing with collective ownership. And there I do think there are serious, perhaps impossible conflcits with general copyright principles. As for a transfer from Jesus, sure, if Jesus complied with Section 204.

Eh Nonymous said...

Heh. I'm trying to imagine even more Fun With Jesus (tm).

What if Jesus...um... who is the author of the Bible, we know, because he's both the original (non-deceased) author AND his son... although not the author of the gospels, one would think, since they have human authors... and yet...

...decided to transfer his copyright in the Bible to the Pope...

... I'm running out of hypothetical. This is harder than it looks.

... and the Pope encrypts it and uploads it to a webpage that's password protected, and then Shawn Fanning breaks into the webpage by entering "anonymous" and "anonymous" as login name and password (clearly not an effective means of DMCA protection), and uploads the (encrypted) file to a public FTP site, where ...

...um...

...a foreign national reads it, and mistakenly believes it is defaming him...

... got nothin'.

Matthew Patterson said...

You've got a terminology problem in the next to last paragraph. The first five books of the Bible are known collectively as the Torah. Chumash, as a quick Google search shows, is the name of a group of Native Americans.

Matthew Patterson said...

Revision to above comment: Oops, wrong of me. Totally not a scholar of Judaism. One just sees "Chumash" much more frequently in the other context.

Frissell said...

Copyright registration problems are the least of some publisher's worries. I wonder if anyone with a bad temper has noticed this Project Gutenberg header:

The Project Gutenberg EBook of The Koran, by Mohammed

Title: The Koran

Author: Mohammed

Release Date: September, 2002 [EBook #3434]