The National Law Forum

The Blog of the The National Law Review

Holy Infringement!—Noncommercial Infringement Is Not Fair Use

The National Law Review recently featured an article regarding Infringement written by Hasan Rashid of McDermott Will & Emery:

 

Declining to find fair use for an archbishop’s educational, non-commercial use of copyrighted material the U.S. Court of Appeals for the First Circuit upheld a grant of summary judgment over numerous orthodox (and unorthodox) arguments. Society of the Holy Transfiguration Monastery, Inc., v. Archbishop Gregory of Denver, Colorado, Case No. 11-1262 (1st Cir., Aug. 2, 2012) (Torruella, J.) (Souter, J., sitting by designation).

In the mid-2000s, Archbishop Gregory (the Archbishop) posted seven works (that he helped to create), translated by the Society of the Holy Transfiguration Monastery (the Monastery), on his website.  After the Monastery brought suit for copyright infringement, the district court granted summary judgment of infringement by the Archbishop. On the Archbishop’s appeal, the First Circuit affirmed the district court on the infringement issue and declined to recognize a transfer of copyright by operation of law.

Of particular interest are the 1st Circuit’s fair use analysis and the non-commercial and educational nature of the infringement.  The 1st Circuit held that a lack of monetary gain does not warrant a finding of fair use.  It cited precedent holding that monetary gain is not the question, but rather whether copyrighted material is exploited without payment.  It also cited precedent for the proposition that, when considering the economic market, the court does not look at commercial gains or losses, but rather whether the infringement affects the value of the work and denies the copyright holder of a reward Congress intended him to have.  For these, among other reasons, the court rejected the Archbishop’s asserted fair use defense.

The Archbishop also attacked the Monastery’s ownership of a valid copyright because of transfer to another, general publication, and unoriginality.  First, the court rejected the transfer argument based on the Monastery’s disassociation from another because disassociation did not necessitate reversion.  Second, the court rejected the argument that the works were generally published, concluding rather that the targeted distribution to selected congregations is a limited publication, not a general publication.  Third, the court rejected the unoriginality argument because, although similar to other works, word usage and structure were different between them.

The court next turned to copying.  Conceding that there was actual copying, the Archbishop argued that he did not copy protected elements of the works.  The Court disagreed—concluding that the slight textual differences between the two were insufficient to avoid summary judgment.  The court also rejected the argument that, by definition, translations are not variable.  Applying the merger doctrine, however, the court found that the art of translation involves choosing among several expressions of ideas.

In addition to fair use, the court rejected three other defenses.  First, the Archbishop argued he did not directly infringe because he did not himself post the works on the internet.  The court found that he nevertheless owned the website and admitted to having authority and responsibility for the site’s contents.  Second, he argued that the Digital Millennium Copyright Act (DMCA) immunized him from infringement.  The court rejected this argument because he failed to plead it and because the argument was simply a remolding of his direct infringement defense.  Third, the Archbishop asserted copyright misuse.  Noting that the 1st Circuit does not recognize that defense, it declined to accept the offer to do so in this case.

Practice Note:  Be mindful when advising on the fair use defense for activities that are not for profit.  Such activities may nevertheless infringe.

© 2012 McDermott Will & Emery

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