Church can’t distribute copyrighted book, federal appeals panel rules

Wednesday, September 27, 2000

The Philadelphia Church of God does not have a First Amendment right
to copy and distribute a book written by a deceased religious leader without
obtaining the copyright holder’s permission, a divided federal appeals court
panel has ruled.

In 1934, Herbert Armstrong founded the Radio Church of God, which was
later renamed the Worldwide Church of God. In 1985, Armstrong completed a
380-page book, Mystery of the Ages,
when he was 92 years old.

Armstrong, who died in 1986, bequeathed the book’s copyright to the
WCG, which distributed over nine million free copies of the work. However, in
1987, leaders of the religious group decided to stop distributing the book,
believing it contained outdated and racist views.

In 1989, two former WCG ministers founded a new religious group called
the Philadelphia Church of God. The ministers split from the WCG and founded
the new church because they believed people should strictly adhere to
Armstrong’s teachings.

Until 1997, the PCG distributed thousands of existing copies of
Armstrong’s book. Then, the group started copying the book for its own use
without seeking permission from the WCG.

The WCG sued in federal court later that year, claiming copyright
violations. The PCG countered that its reproduction and distribution of
Armstrong’s book was protected under the copyright defense of fair use, the
free-exercise clause of the First Amendment and the Religious Freedom
Restoration Act.

After a federal district court ruled that the PCG’s use of the book
was fair use, the WCG appealed to the 9th U.S. Circuit Court of Appeals.

On Sept. 18, a three-judge panel of the 9th Circuit ruled 2-1 in favor
of the WCG in Worldwide Church of God v.
Philadelphia Church of God

The panel majority determined that the WCG’s copyright protections
were “not affected by the religious nature of its activity.”

The PCG argued that it was entitled to a fair-use defense. One section
of the federal Copyright Act provides that “the fair use of a copyrighted work
… for purposes such as criticism, comment, news reporting, teaching
… scholarship or research, is not an infringement of copyright.”

However, the panel majority determined that the PCG’s wholesale
reproduction and distribution of the WCG’s copyrighted work did not constitute
fair use.

“Religious, educational and other public interest institutions would
suffer if their publications invested with an institution’s reputation and
goodwill could be freely appropriated by anyone,” the majority wrote.

The majority cited federal case law stating that “we must be careful
not to deprive religious organizations of all recourse to the protections of
civil law that are available to others.”

The majority also rejected the PCG’s defense under the Religious
Freedom Restoration Act, a federal law passed in 1993 that provides that
“government shall not substantially burden a person’s exercise of religion even
if the burden results from a rule of general applicability” without showing
that the regulation passes the highest degree of judicial review, known as
strict scrutiny.

Although the Supreme Court struck down RFRA as applied to state and
local laws in the 1997 decision City of Boerne v.
, most federal courts have determined that RFRA is still
valid as applied to federal laws.

The 9th Circuit panel rejected the PCG’s RFRA defense, saying the
church “failed to demonstrate that the copyright laws subject it to a
substantial burden in the exercise of its religion.”

“Having to ask for permission and presumably to pay for the right to
use an owner’s copyrighted work may be an inconvenience, and perhaps costly,
but it cannot be assumed to be as a matter of law a substantial burden on the
exercise of religion,” the majority wrote.

Judge Melvin Brunetti dissented, finding that the PCG was protected by
the fair-use doctrine. “In this lawsuit, WCG appears less interested in
protecting its rights to exploit MOA (Mystery of
the Ages
) than in suppressing Armstrong’s ideas which now run
counter to church doctrine.”

Allan Browne, attorney for WCG, said “this is a very important
decision in the sense that it is going to prevent piracy in all intellectual
property cases.”

“With respect to the RFRA argument, the court majority was totally
correct because PCG never asked for a license but just appropriated the book in
a blatant and inappropriate manner,” he said. “There are many copies of this
book available in circulation; there is no substantial burden.”

The lead attorney for the PCG was in depositions and could not be
reached for comment.

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