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The U.S. Court of Appeals for the First Circuit affirmed Aug. 2 copyright infringement liability against an archbishop heading a Russian Orthodox organization for posting translations of religious works that he had participated in creating while a member of a Massachusetts Orthodox monastery (Society of the Holy Transfiguration Monastery v. Gregory, 1st Cir., No. 11-1262, 8/2/12).
In a 75-page opinion the appeals court provided a detailed rejection of the defendant's theory that the monastery in question did not own copyrights to the religious texts and upheld a district court's issuance of summary judgment on the infringement claims.
In 1927, the Russian Church of the Moscow Patriarchate, an important organization in the tradition of Russian Orthodox Christianity, pledged its loyalty to the communist government that had been established after the Russian revolution of 1917. In response, a group of bodies associated with the patriarchate broke away and formed the Russian Orthodox Church Outside of Russia.
The Society of the Holy Transfiguration Monastery Inc. of Brookline, Mass.--originally affiliated with the ROCOR--holds copyrights in various Greek-to-English translations of works relevant to the Eastern Orthodox religion, including the Ascentical Homilies of St. Isaac the Syrian, the Pentecostarion, the Otcoechos, the Prayer Book, the Horologion, the Dismissal Hymns, and the Psalter. At some point the monastery disassociated itself from the ROCOR and became affiliated with a group called the Holy Orthodox Church in North America.
Robert G. George, now known as Archbishop Gregory of Denver, Colo., was once a member of the monastery, and participated in the creation of some of the works. Archbishop Gregory also disassociated himself from the ROCOR and became affiliated with the Russian Orthodox Autonomous Church.
In 2004, Archbishop Gregory's affiliation with the ROAC ended and he now leads the Genuine Orthodox Church of America, based in Buena Vista, Colo., and operates a website associated with the domain name trueorthodoxy.info. In 2006, the monastery brought claims against the archbishop as well as publisher Sheridan Books Inc. in the U.S. District Court for the Eastern District of Massachusetts, alleging infringement of one of its works. The parties eventually entered into a settlement agreement, whereby the archbishop agreed not to challenge the validity of the monastery's claim of copyright in the work or the registrations for the work or any other St. Isaac work in the future.
In 2007, the archbishop posted the text of Homily 46 from the St. Isaac work on his website. The monastery sued again, this time in Massachusetts, alleging copyright infringement and breach of the settlement agreement.
Judge Richard G. Stearnscourt granted partial summary judgment in favor of the monastery on its breach of contract claim and its claim of infringement of the St. Isaac work. The court ruled that the archbishop had breached the agreement, that the archbishop's use did not constitute fair use, and that the use was infringing. 685 F. Supp.2d 217, 94 USPQ2d 1234 (D. Mass. 2010).
Subsequently, the monastery moved for summary judgment on its remaining claims of infringement. Stearns granted the monastery's motion, rejecting the archbishop's argument that the monastery did not hold valid rights in the works. 96 USPQ2d 2000 (D. Mass 2010). According to the archbishop, when the monastery disassociated from the ROCOR, the copyrights were transferred to the ROCOR. The district court disposed of this issue as it did in its earlier ruling: There was no writing constituting an instrument transfer of ownership of the copyrights under 17 U.S.C. §204(a), so thus there was no transfer.
The district court also rejected the archbishop's arguments that such transfer of ownership could have happened by operation of law, analogous to a bankruptcy, foreclosure, merger, or dissolving of a corporation; and that the works were in the public domain because they had been published without copyright notices.
On appeal the archbishop revived all of these arguments, as well as a number of affirmative defenses that had also been rejected by the district court.
One of the first issues the court had to address was whether the monastery owned the copyrights. The court noted, “The cornerstone of the Archbishop's argument is that the Monastery's works are in fact owned by a third party, ROCOR.” As it did at the district court level, this argument rested on the monastery's former relationship with ROCOR, with the archbishop claiming that when the monastery in 1986 disassociated itself from ROCOR it transferred all its intellectual property to that group. The appeals court found this unpersuasive.
First, Judge Juan R. Torruella noted that there was no written instrument commemorating the transfer of the copyrights from the monastery to ROCOR. Accordingly, the court said it must determine if the copyrights transferred by operation of law. This determination could only be made by looking ROCOR's bylaws and articles of incorporation, the court said. Specifically, the court looked to a provision of ROCOR's articles that stated:
The articles of incorporation of the monastery, convent or community must make it clear that it will always be in the jurisdiction of the Synod of Bishops of [ROCOR] and that, in case of its closing or liquidation, its possessions will be handed over to the diocese subject to the Synod of Bishops of [ROCOR], or directly to the Synod of Bishops.
The archbishop argued that the monastery's termination of its relationship with ROCOR was akin to bankruptcy, foreclosure, merger, or dissolution of a corporation that would vest ownership of its possessions with ROCOR pursuant to the emphasized text above. The court disagreed.
The most basic of the myriad problems with the archbishop's theory is that the monastery “continued to exist after it terminated its commemoration of the ROCOR bishops; it did not close, liquidate, dissolve, merge into another religious institution, or otherwise discontinue its existence,” the court said. It concluded, “Because the Monastery never closed, liquidated, or otherwise ceased its existence, no such 'hand[ing] over' of its possessions to ROCOR could have taken place, unless it authorized otherwise.” The court noted again that there was no evidence of a written agreement between the two parties commemorating such a transfer, and thus determined that the monastery held the copyrights in question.
The court next addressed whether the copyrights were deserving of protection. The archbishop's first attack on the validity of the copyrights was that the religious works were published without copyright notice, and thus fell into the public domain. The court rejected this theory outright.
Looking to relevant case law, includingBrown v. Latin American Music Co., 498 F.3d 1883, 83 USPQ2d 1655 (1st Cir. 2007), the court noted that a work can lose copyright protection only if it is subject to general publication and the work's author fails to register the work within five years of the date of first publication.
In this case, the court said the works in question were not subject to a general publication, but were instead delivered “to selected religious congregations for the circumscribed purpose of literary feedback.” The archbishop argued that the works were “passed around,” but his inability to support this allegation was not enough to defeat the monastery's entitlement to copyright protections in the underlying works, the court concluded.
The archbishop also argued that the works were not original, and thus were not subject to copyright. The court, summarizing the gist of this argument, said, “[T]he Archbishop postulates, because the Monastery's translations are nothing more than a nearly identical, cobbling together of already translated religious texts, the Monastery cannot claim copyrights to the contested Works.”
Like the argument that the works lacked protection, this argument too failed for many reasons, the court said. For one, “The Copyright Act makes clear that translations may be original and copyrightable, despite being derivative of another product,” the court said.
Second, the archbishop failed to demonstrate that the translations lacked originality, offering on this score only an affidavit by one of his former employees that claimed that the works in question were substantially similar to other works. That evidence was outweighed by the monastery's own evidence showing that there were “notable differences” between the works referenced by the archbishop's witness and the ones created by the monastery, the court said.
Noting that the bar for originality is “extremely low,” the court concluded that it had been cleared in this case. It thus determined that the works were subject to copyright protection.
Having determined that the works were subject to protection, the court turned its attention to whether the archbishop violated the monastery's copyrights in the works. The court said the determination was relatively easy given the evidence “of both direct and indirect” copying.
Specifically, the court said the direct evidence was established by the archbishop's own admissions that the works he posted on his website were “identical or near-identical” to the monastery's works.
“But lest there be any doubts as to the Archbishop's concessions, there is ample circumstantial evidence in the record from which we may infer actual copying,” the court said. Indeed, a simple comparison of the works that appeared on the archbishop's website to the original works established that “the texts are nearly indistinguishable from one another, with only minor textual differences where such variation exists,” the court said.
After determining that the claims for copyright infringement had been established, the court went on to consider, and altogether reject, all of the archbishop's affirmative defenses.
His argument that he could not be directly liable for copyright infringement because he himself did not place the texts on his website failed as a matter of policy since he instructed his employee to post the texts on the site, the court said.
The archbishop's claim of protection under the safe harbor provisions of the Digital Millennium Copyright Act of 1998, 17 U.S.C. §§101 et seq, had been waived due to the archbishop's failure to raise the defense in his answer or amended answer to the complaint. Moreover, the court expressed its doubt that the DMCA, which protects internet service providers, would apply given the archbishop's tenuous qualifications as an ISP, and his failure to comply with the statutory provisions that would entitle an ISP to safe harbor protections.
The court also rejected the archbishop's fair use defense. All four fair use factors weighed against the archbishop, the court said.
Lastly, the court rejected the archbishop's claim that the monastery was engaging in copyright misuse. The doctrine has never been recognized by the First Circuit as a defense to copyright infringement, and the defense was not raised at the district court level. Thus, the court deemed the copyright misuse defense waived.
Retired Supreme Court Justice David H. Souter, sitting by designation, and Circuit Judge Michael Boudin joined the opinion.
The archbishop was represented by Chris L. Ingold of Ingold Law, Denver. The monastery was represented by Kristin McCallion of Fish & Richardson, Boston.
fair use defense failed because
Opinion at http://pub.bna.com/ptcj/111262Aug212.pdf
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