Yesterday's blog on the Da Vinci Code didn't go into the issues of religion raised by the case, although some of the similarities claimed to be infringing involved religious events or issues. I didn't discuss any particular similarities, religious or secular, and as a non-Christian, I wouldn't feel qualified to offer any comments on the religious aspects of the similarities.
Religion rarely raises its head in copyright disputes, although the only copyright statute ever found unconstitutional was found unconstitutional as a violation of the First Amendment's Establishment clause, United Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152 (D.C. Cir. 1987). That case involved a private law, Priv. L. No. 92-60, which extended copyright on Mary Baker Eddy's "Science and Health," published originally in 1875 and revised continually since. The original version, along with revisions made by Ms. Eddy until her death in 1910 had fallen into the public domain. A dissident group viewed the 1910 version as authoritative. Private Law 92-60 was passed avowedly to help suppress this group, and the law was deservedly struck down.
Religion has been raised in other copyright contexts. In Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 97 (2d Cir. 2002), another dispute among followers of a deceased (at least to some) religious leader led to a dispute over copyright in a translation of the Lubavitchers' siddur (prayerbook). The translation certainly was not for necessary for regular Chabad members whose Hebrew is quite excellent, but rather for non-Chabad members who have not regularly attended services. The Second Circuit held that "the translation process requires exercise of careful literary and scholarly judgment." As a collector of siddurim, I can vouch for this. There also was a challenge to the court's authority to hear the dispute, since a religious court (bet din) had made a determination, but binding on only one of the parties. The court noted that both parties were corporations, and that the federal judiciary could apply neutral secular law (the Copyright Act) to resolve the dispute, thereby not trampling on religious territory.
Similarly, in Religious Technology Center v. Scott, 660 F. Supp. 515 (C.D. Cal. 1987), the court rejected a claim that a determination of infringement would impermissibly entangle the courts in religious doctrine. And, finally, in Worldwide Church of God v. Philadelphia Church of God, Inc. 227 F.2d 1110 (9th Cir. 2000), the court rejected a Religious Freedom Restoration Act defense raised by an infringer, holding that it matters not if the work infringed is religious, only whether it is original and has been substantially copied.
Tomorrow's blog will be on authorship of religious texts.