Eastern Orthodox Monastery Wins copyright Case Against Archbishop

Sheri Qualters
The National Law Journa

8/12/2010

A Boston federal judge has ruled that an Eastern Orthodox archbishop infringed an Eastern Orthodox monastery’s copyrights for English language translations of ancient Greek religious texts.

In a Dec. 3 order, Judge Richard Stearns granted the monastery’s summary judgment motion in Society of the Holy Transfiguration Monastery Inc. v. Archbishop Gregory of Denver.

Stearns gave the monastery until Dec. 17 to decide whether it would accept the minimum statutory damages of $5,250, or $750 per infringed work. If the monastery wishes to seek higher damages, the case would go to jury trial on Jan. 18.

The case involves copyrights for seven monastery works. According to court papers, the monastery relies on income from the sale of these works.

The monastery sued the archbishop, a former novice of its order, in December 2007 for infringing Web site postings. In February, the court ruled for the monastery on its breach of contract claim and infringement claim related to one of the works. The December ruling addresses infringement claims for the six other works.

The recent ruling concludes that the monastery — not the Russian Orthodox Church Outside Russia — owns the copyrights. “As the court stated in its February 18, 2010 Memorandum and Order, the Copyright Act provides a statutory answer to the copyright issue that makes it unnecessary to consult the canonical traditions of the Orthodox Church,” Stearns wrote.

Stearns also noted that, after 1978, a transfer of copyright, other than by operation of law, “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

In addition, Stearns rejected the archbishop’s argument that some of the works are in the public domain because they were published without copyright notice and that the Copyright Act doesn’t apply because the works are translations of pre-existing works.

Stearns further ruled that the archbishop’s use of the works was not fair use because his publication was not transformative. “Thus, while it is true that transformative use is not an absolute requirement for a finding of fair use, its absence enhances the significance of the other factors that weigh against a finding of fair use,” Stearns wrote.

Finally, Stearns rejected the archbishop’s argument that he is immune from liability for infringement under the 1998 Digital Millennium Copyright Act because he’s an Internet service provider: The judge found that the archbishop did not raise the issue in his answer or amended answer.

The monastery “is thrilled by the results in terms of liability” and “inclined to consider the judge’s offer,” said the organization’s lawyer, Amy Brosius, a Boston partner at Fish & Richardson. “While we’re not prepared to say which way we’re going to go, we were impressed by Judge Stearns’ logic.”

Brosius also said the lawsuit arose because the archbishop breached a settlement agreement for a prior similar lawsuit that the monastery brought against him and his publisher in the Eastern District of Michigan. That case, Society of the Holy Transfiguration Monastery Inc. v. Sheridan Brooks Inc., was settled in July 2006.

“The true history of this lawsuit is one of a nonprofit having to pursue a recidivist infringer,” Brosius said. “This is not the first time he knocked off our client’s works.”

The archbishop’s lawyer, Chris Ingold of Denver-based Irwin & Boesen, said he’s going “to continue to work hard on the archbishop’s behalf to create the best possible outcome for him.”

“It’s been a complicated case and it’s got a protracted history, Ingold said. “All the parties have gone after this with great vigor.”

Ingold also said that someone in the archbishop’s monastic community, or skete, actually posted the items on the archbishop’s site. The accidental infringement doesn’t meet the elements for contributory and vicarious infringement, but Stearns’ order didn’t address that issue, Ingold said.

“It’s undisputed that the stuff was up for a short period of time,” Ingold said. “It’s undisputed that he didn’t profit.”

Religious institutions are increasingly enforcing copyrights and trademarks, said Miles Feldman, a business and intellectual property litigator at Beverly Hills, Calif.-based Raines Feldman, who wasn’t involved in the case.

“A lot of religious institutions are run like businesses and they actively enforce their rights,” Feldman said. “With the rise of different types of media, they’re more actively involved in that.”

This story originally appeared in The National Law Journal, a Corporate Counsel sibling publication.

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