Copyright Law and Free Exercise

The First Amendment forbids Congress from making any law prohibiting the free exercise of religion. The federal copyright statute grants copyright holders a court-enforced power to prevent third parties from using religious texts. Nevertheless, copyright is unlikely to violate the Free Exercise Clause. In 1990, the Supreme Court held that the Free Exercise Clause does not require the government to grant religious exemptions to neutral laws of general applicability, Employment Division v. Smith. Since copyright doctrine makes no distinctions based on the content of works or the religious status of their authors, copyright is a neutral law of general applicability.

Courts could accommodate the needs of persons wishing to use copyright-protected material for religious purposes without permission by using several different copyright doctrines. Courts could refuse copyright to works allegedly dictated to humans by divine beings on the ground that copyright requires a human author. Courts could find that seemingly infringing uses are allowed as ‘‘fair use.’’ Fair use allows some actions that otherwise would be copyright infringement after balancing the purpose and nature of the use (including whether it is commercial or nonprofit), the nature of the copyrighted work, the amount used, and the economic burden on the copyright holder, Title 17 United States Code, Section 107. One could argue that religious worship is a socially valuable nonprofit use under the first factor. Courts could narrow the copyright protection of the religious work through the ‘‘idea/expression dichotomy.’’ Copyright only protects the way an idea or fact is expressed, but not the idea or fact, Title 17 United States Code, Section 102(b). If only a few ways of expressing something are possible, the expression and content are said to merge, allowing no copyright protection. One could argue that religious practice requires access to the exact words of a divine message; no paraphrase is equivalent. Even if the court decides that copyright has been infringed, it could accommodate religiously motivated infringement by granting only money damages instead of ordering the use stopped.

The courts generally have been unsympathetic to these arguments. For example, a believer was held to infringe the copyrights of the Urantia Foundation when she made numerous electronic copies of the Urantia Book for free distribution to other potential believers. The court was not swayed by the claimed celestial authorship of the scripture, insisting that the human ‘‘intermediaries’’ were ‘‘authors’’ for purposes of the copyright statute, Urantia Foundation v. Maaherra. In Urantia, religious practice was not greatly affected, because the copied work was available to anyone at a reasonable price from the copyright holder. Copyright has been enforced even when the copyright holder may have intended to prevent any use of the religious book. The World Wide Church of God (WWCG) holds copyright in Pastor General Herbert W. Armstrong’s Mystery of the Ages (MOA). After distributing more than nine million free copies of MOA, the WWCG decided to halt distribution because of doctrinal changes. WWCG was out of print for at least ten years. Two former WWCG ministers started a separate church dedicated to the original teachings of MOA; all members were required to read MOA to be considered for baptism. The separatist ministers were held to have infringed WWCG’s copyright when they began printing and distributing new copies of MOA without permission. The court did not find relevant that the new church was more dedicated to the teachings of MOA’s author than was the MOA-suppressing copyright holder. The court gave great weight to WWCG’s claim that it intended to publish an annotated version of MOA sometime in the future. The separatist ministers were ordered to cease publication and distribution of MOA, Worldwide Church of God v. Philadelphia Church of God.

Many intellectual property cases involve the Church of Scientology’s attempts to keep secret various church materials disseminated by disaffected former scientologists. The Free Exercise Clause has been of scant help to either side in these cases. Seemingly to prevent Establishment Clause issues, the courts generally apply standard copyright doctrine without taking religious motivations into account. Two Establishment Clause issues loom in such copyright disputes. First, copyright is usually considered a type of personal property. Allowing copyright infringement for religious use would constitute limiting one person’s property rights to accommodate another person’s religious belief. This might violate the Establishment Clause by showing favoritism toward one religious sect. Second, deciding which of competing sects is more in line with the beliefs of the spiritual work’s author might violate the Establishment Clause by entangling the court in issues of religious doctrine.

The copyright statute includes one specific exemption for religious worship. According to section 110(3) of title 17 of the United States Code, copyright is not infringed by ‘‘performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.’’ In other words, if church members have a legally obtained copy of a hymnbook or scripture, they can sing or read the words aloud during worship services without obtaining a license from the copyright holder. Alicensewould otherwise be necessary, because a copyright holder has the exclusive right not only tomake and distribute copies of his work but also to allow the work to be performed publicly. This statutory exemption has not been discussed by any court opinions, but Professor Cotter argues that it violates the Establishment Clause by favoring religion over secularism.

In addition, a court could hold that otherwise infringing activity must be allowed because of the Religious Freedom Restoration Act (RFRA), which protects religious practices from substantial burdens created by laws of general applicability unless the law is the least restrictive means of furthering a compelling government interest. Congress enacted the RFRA in reaction to Employment Division v. Smith. No court has accepted the argument that copyright enforcement is a substantial burden for purposes of RFRA, not even the Worldwide Church case discussed previously. In 1997, the Supreme Court held the RFRA to be unconstitutional as applied to state statutes, City of Boerne v. Flores. Copyright is a federal statute, so it is not touched by Boerne.

MALLA POLLACK

References and Further Reading

• Cotter, Thomas F., Guttenberg’s Legacy: Copyright, Censorship, and Religious Pluralism, California Law Review 91 (2003): 232.

Cases and Statutes Cited

• City of Boerne v. Flores, 521 U.S. 507 (1997)
• Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990)
• Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997)
• Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000)

See also Church of Scientology and Religious Liberty; City of Boerne v. Flores, 521 U.S. 507 (1997); Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Establishment Clause: Theories of Interpretation; Establishment of Religion and Free Exercise Clauses; Religious Freedom Restoration Act