Copyright Law: Fair Use

This article is reprinted by permission of Harvard Law Review. For space, most of the footnotes, consisting purely of legal citations, have been omitted.

Fair use doctrine might rightly be considered a full-employment act for copyright attorneys. As one commentator has wryly noted, “[i]t is de rigueur to begin a scholarly discussion by quoting one of the judicial laments that fair use defies definition…before going on to define it anyway.” Last September, in Worldwide Church of God v. Philadelphia Church of God, the Ninth Circuit applied the doctrine narrowly and held that it did not constitute fair use for a breakaway church to copy and disseminate a religious text that its parent church was attempting to suppress. By giving insufficient weight to the religious nature of the text, the court interpreted fair use in a manner that contravenes the goals of a doctrine designed to encourage, not hinder, the free expression of ideas.

In 1934, Herbert Armstrong founded what would become the Worldwide Church of God (wcg). Between 1985 and 1988, wcg distributed 9 million free copies of Mystery of the Ages (moa), a work Armstrong had completed shortly before his death in 1986. In 1988, the church’s leaders decided to stop distributing moa and destroyed most of their inventory, asserting that moa no longer represented wcg’s position on certain doctrinal issues and that the church wished to distance itself from the book’s racially insensitive views.

Dissatisfied with this doctrinal shift, two of the church’s ministers left wcg and in 1989 founded the Philadelphia Church of God (pcg) “to continue the work established by Herbert W. Armstrong” and “to educate people about the incredible truth found within the Bible.” By 1996, pcg’s membership had reached roughly 7,000, in part due to moa, which pcg distributed free of charge. Pcg initially met demand with existing copies of moa, but in 1997 began reprinting the book almost verbatim. When pcg refused wcg’s demand to stop distribution, wcg sued for copyright infringement.

Pcg responded to the suit by claiming that wcg did not own the moa copyright, that the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (rfra) barred wcg’s claim, and that pcg’s reproduction constituted “fair use” under copyright law. Wcg sought a preliminary injunction prohibiting pcg from printing or distributing moa, pcg sought a declaratory judgment recognizing its rights of reproduction and distribution, and both sides moved for summary judgment. The district court dismissed pcg’s rfra defense but granted pcg summary judgment on the fair use question.

A divided Ninth Circuit panel reversed, granted wcg a preliminary injunction, and remanded the case for a determination of damages. Writing for the majority, Judge Schwarzer briefly addressed copyright ownership—finding that wcg owned the rights to moa under the terms of Herbert Armstrong’s will—before turning to pcg’s fair use defense. Under §107 of the Copyright Act, courts must consider four factors when evaluating fair use: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect on the market for or value of the copyrighted work. Considering the first factor, the court reasoned that because pcg had copied moa verbatim, the church’s use was not “transformative”; nor could it be considered nonprofit, because it was “beyond dispute that pcg ‘profited’ from copying moa—it gained an ‘advantage’ or ‘benefit’ from its distribution and use of moa without having to account to the copyright holder.” The majority concluded that these considerations weighed against fair use.

The majority then briefly addressed the second and third statutory factors. Noting that creative works enjoy more protection than informational ones under the second factor—the nature of the work—the court held that moa was essentially a creative work, despite the fact that its adherents consider it truth. Regarding the third factor—the amount of the work used— the majority acknowledged that courts have permitted wholesale copying in certain circumstances. However, the court found that because pcg used moa for the same purpose as had wcg—“as a central element of its members’ religious observance”—fairness weighed in favor of payment.

Turning to the fourth factor—market effect—the court determined that pcg’s copying of moa would impair the marketability of wcg’s planned annotated version of the book and that wcg’s 1988 decision to remove the book from circulation was irrelevant to a finding of infringement. On the basis of its four-factor analysis, the court concluded that pcg’s fair use defense failed (1).

Judge Brunetti, dissenting, rejected the majority’s fair use analysis, emphasizing that “fair use doctrine is an equitable rule of reason” and that “each case raising the [fair use] question must be decided on its own facts.” Regarding the first factor, he argued that pcg’s noncommercial, religious use of moa distinguished it from the typical fair use case, particularly because the book was out of print and difficult to obtain. After reasoning, under the second factor, that moa resisted classification as either informational or creative and, under the third factor, that the Supreme Court had permitted wholesale copying in certain circumstances, Judge Brunetti turned to the fourth statutory factor—the impact of pcg’s use on the value of moa: “Wcg’s decision to cease publication of moa, destroy inventory copies, and disavow moa’s religious message in the context of its doctrinal shift as a church demonstrates that moa is no longer of value to wcg for such purposes, regardless of pcg’s actions.” Judge Brunetti concluded by noting that wcg seemed less concerned with protecting its copyright than with preventing the dissemination of ideas it now deemed false, and that the Supreme Court had found that suppression is not a legitimate use of copyright.

Fair use is a check on the monopoly power of copyright; it is “what its name suggests: an exemption from copyright infringement for uses that are fair” (2). In Worldwide Church of God, the court’s failure to see the case for what it was—a church’s attempt to suppress heresy by using copyright law—led it to overlook the purposes of the fair use doctrine and facilitate the monopolization of a religious idea.

The most serious error in the court’s analysis was its failure to credit sufficiently moa’s centrality to pcg, which led it to misapply the first fair use factor (3). Moa is required reading for those who seek baptism in the church, and church policy mandates reading the book before services because it “provides the key to understanding the Bible.” The dissent recognized this centrality. The majority, however, treated pcg’s copying and distribution of moa as a straightforward infringement case. It failed to recognize that to prohibit pcg’s use of the book would be to suppress both the unique expression of the ideas in the book (4) and the ability of pcg’s members to live according to their religious faith.

The court briefly addressed the suppression issue by reasoning that if wcg were to refuse reprint permission to pcg, (5) it would do so to protect its own interest in an annotated edition of moa, not to prevent pcg from using the book. That financial interest, said the court, meant that there was no suppression—and thus no market failure—because “[m]arket failure should be found only when the defendant can prove that the copyright owner would refuse to license out of a desire unrelated to the goals of copyright—notably a desire to keep certain information from the public.” The court’s assumption that wcg was not seeking to keep moa from the public (or from pcg) rested on a tenuous belief in the sincerity of wcg’s annotation plans; it then privileged those speculative plans over pcg’s immediate, religious need for the book (6).

Wcg withdrew moa from circulation because its leaders believed they had a “Christian duty” to avoid propagating the book’s doctrinal errors; the church’s reasons for not wanting pcg to copy moa were clearly not limited to market concerns. Under most circumstances, of course, a copyright owner is entitled to set an impracticably high licensing fee or even to refuse to license his work altogether. When, however, that refusal is based on the copyright owner’s intent to suppress a particular set of ideas that cannot be paraphrased or expressed in another way, courts should apply fair use doctrine to allow the secondary use (7). The copyright law does not permit the monopolization of ideas; neither should it enable the suppression of heresy. The fair use doctrine exists to carve out precisely these kinds of exceptions to the law.

Rather than granting an injunction, the majority could instead have remanded the case to the trial court for an inquiry into whether wcg had been motivated by any suppressive intent. Such an inquiry could have proceeded through either a subjective or an objective test. Pcg could ask permission to copy moa, and if wcg refused, a subjective test would explore wcg’s reasons for doing so, much as a criminal court looks for mens rea [criminal intent]. By contrast, an objective test might consider whether, if wcg refused the license, its behavior could be considered objectively reasonable; alternatively, if wcg did grant a license but at an extraordinarily high price, an objective test could determine whether the price could have been grounded in a reasonable business judgment. Either test would have given the court more information about wcg’s motives for taking moa out of circulation.

Just as courts have created a narrowly tailored fair use exception to permit the parody of copyrighted works, so too should they apply the doctrine to situations in which copyright law intersects with the practice of a religious faith. In such cases, courts could apply the fair use factors in the following way: When a copyright holder is using the copyright law to suppress the expression of an idea that is necessary to an individual’s or group’s self-expression, and there is a market failure that prevents dissemination of the idea through any other channel, a court should find fair use and permit the individual or group to copy the work. Such a narrowly tailored, conjunctive analysis (8) would preserve the protections of the copyright system while preventing manipulation of the system for suppressive or insincere purposes; it would also fall well within the bounds of a doctrine that is “not a grudgingly tolerated exception to the copyright owner’s rights of private property, but a fundamental policy of the copyright law” (9).

Footnotes:

1. … The majority also rejected pcg’s rfra defense. Finding that pcg had not demonstrated a substantial burden on the practice of its religious faith, the majority

declined to decide whether rfra applies to copyright law….

2. … [Lloyd L.] Weinreb argues that a proper understanding of fair use doctrine should be limited neither to the four statutory factors nor to utilitarian concerns, but should be sufficiently fact-specific to accommodate broader notions of fairness. Although he acknowledges that such an approach may be more difficult to apply than a putatively straightforward four-factor test, he suggests that his approach comports best with the purpose of fair use doctrine: “Adjudication according to a standard of fairness calls for the exercise of great judicial skill, or art. But it is not for that reason to be regretted. It is, in any case, what the Copyright Act prescribes. Fair is fair.” …

3. The court’s analysis under the fourth statutory fair use factor—that pcg’s version would hurt the market for any wcg-annotated version of moa—was also unpersuasive…. In this case, as the dissent rightly pointed out, there would be little competition between the two versions of the book: One, after all, was an almost verbatim reprint, while the other would identify the work’s doctrinal “errors.”… Furthermore, the majority’s belief that such an annotated edition of moa might be forthcoming lacked support in the record: Even ten years after it withdrew the book from circulation, wcg’s plans for the new edition remained inchoate and speculative….

4. Because ideas cannot be copyrighted…pcg would be free to expound Herbert Armstrong’s theology—and perhaps even to quote selectively from moa—without fear of liability. This argument overlooks the fact that for religious texts, ideas are often indivisible from their expression. (Orthodox Jews, for example, believe that the Torah is literally the Word of God; many Christians believe the same about the entire Bible.) While pcg views moa as a work of interpretive theology rather than as a divinely inspired sacred text, its ideas are not neatly divisible from the form of their expression—which is why converts to pcg must read moa itself and not simply hear sermons that draw from it…. Courts might be wary of telling religious groups how much of their theology is reducible to paraphrase.

5. The court stated that pcg itself had never actually asked wcg for permission to reprint moa…; the court failed to mention that some individual members of pcg

had asked for and been refused reprint permission….

6. As suggested above, however, because the markets for the two versions would be so different, the substantiality of wcg’s annotation plans is of little relevance….

7. Cf. Harper & Row Publishers, Inc. v. Nation Enters…. (“We do not suggest this right not to speak would sanction abuse of the copyright owner’s monopoly as an instrument to suppress facts.”).

8. The conjunctive nature of the analysis must be emphasized. A religious group that followed the works of John Irving, for example, would not be permitted to reprint A Prayer for Owen Meany and claim fair use. Even assuming that the group’s beliefs were sincere, there would be no market failure, as the book can be purchased at any bookstore.

9. Pierre N. Leval, Toward a Fair Use Standard….