Copyright Transfer by “Operation of Law”
by Pamela Chestek • October 10, 2012 • copyright • 0 Comments
A copyright can be transferred by written document or by operation of law. The First Circuit recently discussed the latter form of transfer, albeit with a neat sidestep of the question.
The plaintiff Society of the Holy Transfiguration Monastery (the Monastery) is a religious order in Massachusetts founded in the 1960’s. The Monastery created translations of ancient Greek religious texts, which are the works in dispute. In 1965 it became spiritually affiliated with the Russian Orthodox Church Outside of Russia (ROCOR). This affiliation meant that the Monastery agreed with the ROCOR faith and enjoyed ROCOR’s blessing. The spiritual affiliation is created by accepting an antimension, a cloth signed by a bishop that is kept on an alter table.
In the 1970’s, defendant Archbishop Gregory obtained ROCOR’s permission to leave the Monastery and move to Colorado, where he formed his own monastery dedicated to painting icons. In 1986, the Monastery ended its spiritual affiliation with ROCOR, returning the antimension. In 2005, Archbishop Gregory created a website on which he published the Monastery’s translations, which is the publication that is the subject of the suit.*
Archbishop Gregory claimed that the copyrights in the translations were transferred by the operation of law to ROCOR. The “operation of law” to which Gregory referred was ROCOR’s Monastic Statutes for Monasteries (the “Monastic Statutes”) and the Regulations of ROCOR. The Monastic Statutes state:
|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 handled over to the diocese subject to the Synod of Bishops of [ROCOR] or directly to the Synod of Bishops.|
(Bracket in original.) While a court may not “tread on religious doctrine, church governance and ecclesiastical laws,” here the court could reach a conclusion without interpreting religious law.
The court had several problems with Archbishop Gregory’s theory. First, the Monastery’s records–its articles of incorporation, by-laws and the certifications of registration for the translations–did not show that it was under ROCOR’s jurisdiction. There was no sign that the Monastery intended to be bound by ROCOR’s statutory law or to relinquish title in its property.
Second, the Monastic Statutes specifically referred to “closing or liquidation.” The defendant regarded the termination of the spiritual affiliation as akin to a corporate dissolution, merger, bankruptcy or foreclosure, but the court had none of it. The Monastery never ceased to exist, so it could not have “handed over” its possessions to ROCOR.
Third, the ROCOR Statutes require that a monastery incorporate, but there was no indication that the Monastery had incorporated to satisfy that requirement. Rather, it was already incorporated before it affiliated with ROCOR and had only accepted the antimension to signify its association with ROCOR. This also demonstrated that the copyrights were not transferred:
|We are far from being authorities as to the weight the giving of an antimension to another religious body might hold under church law and offer no ruminations on the matter. But a review of the evidence reveals no other act or document confirming that the Monastery reincorporated itself under ROCOR law. The giving of a consecrated cloth does not, under civil law, ring of the type of alteration in corporate structure that transfer in authority over the Monastery’s possessions may properly be deemed to have occurred.|
Therefore the Monastery was the copyright owner of the translations.
The defendant also challenged ownership of copyright based on publication without notice, lack of originality, and merger, asserted that the works were not substantially similar, and brought affirmative defenses that he was not the direct infringer, he had a safe harbor under the DMCA, the use was a fair use, and the Monastery was misusing it’s copyright, all of which failed. Seventy-five pages later, the court ended:
Our pilgrimage through the complexities of copyright law concluded, we keep our words here few–for the foregoing reasons, we affirm the decision of the district court.
Society of the Holy Transfiguration Monastery, Inc. v. Gregory, No. 11-1262 (1st Cir. Aug. 2, 2012).
*The Monastery sued the Archbishop in 2006 and the parties settled, but the Archbishop did not comply with the terms of the settlement agreement. This is the second suit brought by the Monastery, for copyright infringement and breach of the settlement agreement.
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