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Copying of a copyrighted religious work for distribution to third parties is not fair use, does not fall within the narrow exception accorded religious uses under the Copyright Act and is not protected by the First Amendment, the 9th U.S. Circuit Court of Appeals ruled Sept. 18 ( Worldwide Church of God v. Philadelphia Church of God Inc., Nos. 99-55850, 99-55934, 99-56005, 99-56489, 9th Cir.). The court reversed a ruling by U.S. Judge J. Spencer Letts of the Central District of California entering summary judgment for Philadelphia Church of God Inc. (PCG) in a suit brought by Worldwide Church of God (WCG). At issue is a 380-page book entitled “Mystery of the Ages” written by WCG founder Herbert Armstrong. Armstrong copyrighted the book in the name of WCG, published it in serial form in a magazine distributed for free to approximately 8 million people and distributed over 1.24 million copies free of charge to employees and viewers of WCG telecasts. After Armstrong’s death, WCG ceased distribution of “Mystery” because of “ecclesiastical error” in it, including racist views. Also after Armstrong’s death, two former WCG ministers, Gerald Flurry and John Amos, founded PCG, which claims to adhere strictly to Armstrong’s teachings. In January 1997, PCG began making copies of “Mystery” for its own use, deleting WCG from the copyright page and substituting Armstrong’s name in its place. WCG sued, alleging copyright infringement. PCG asserted the free exercise clause of the First Amendment, the Religious Freedom Restoration Act and the fair use doctrine. The parties filed cross-motions for summary judgment. Judge Letts granted PCG’s motion, finding that Armstrong was the author of the book and that it was not a work for hire and that PCG was entitled to assert the fair use doctrine. WCG appealed. OWNERSHIP OF COPYRIGHT Reversing, the 9th Circuit found first that WCG is the owner of the copyright in “Mystery” because Armstrong bequeathed his entire estate, including the copyright, to WCG. Further, the panel said, PCG’s copying is not fair use. WCG’s exclusive right to reproduce and disseminate “Mystery” “is not diminished or qualified by the fact that WCG is a not-for-profit organization and does not realize monetary benefit from the use of the copyrighted work,” the panel said. “Nor is that right affected by the religious nature of its activity; Congress narrowly limited the privilege accorded religious uses to ‘performance of a � literary or musical work � or display of a work, in the course of services at a place of worship or other religious assembly.’” Nor do First Amendment considerations support PCG’s claim of fair use based on WCG’s withdrawal of “Mystery” from distribution, the panel said. FAIR USE FACTORS Examining the four factors set forth in the Copyright Act for determining fair use, the panel said that while PCG’s stated use of “Mystery” was for nonprofit purposes, “[the book's] use unquestionably profits PCG by providing it at no cost with the core text essential to its members’ religious observance, by attracting through distribution of MOA new members who tithe ten percent of their income to PCG, and by enabling the ministry’s growth.” As a result, the panel said, the first factor — “the purposes and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” — weighs against fair use. The second factor — “the nature of the copyrighted work” — also weighs against fair use, the panel said, finding that “[w]hile it may be viewed as ‘factual’ by readers who share Armstrong’s religious beliefs, the creativity, imagination and originality embodied in [the book] tilt the scale against fair use.” The panel cited the fact that PCG copied the entirety of “Mystery” in concluding that the third factor — “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” — also weighs against fair use. The panel rejected PCG’s argument that its verbatim copying of the whole work is reasonable because its use of the work is religious in nature. “PCG uses ["Mystery"] as a central element of its members’ religious observance; a reasonable person would expect PCG to pay WCG for the right to copy and distribute [the book] created by WCG with its resources,” the panel said. Finally, the panel found the fourth factor — “the effect of the use upon the potential market for or value of the copyrighted work” — neutral, “at worst.” The court noted WCG’s intention to publish an annotated version of “Mystery” and rejected PCG’s argument that WCG’s failure to exploit the work for 10 years shows that it has no economic value that would be adversely affected by PCG’s distribution of the work. The court’s opinion was written by U.S. Judge William W. Schwarzer of the Northern District of California, sitting by designation, and joined by Circuit Judge A. Wallace Tashima. DISSENT In a dissent, Circuit Judge Melvin Brunetti said that the “noncommercial and religious elements of PCG’s use overwhelm any commercial aspects”; that the second and third factors of the fair use analysis “are mostly irrelevant to this case”; and that “there is no evidence, beyond mere speculation by WCG’s leaders, that PCG’s use has a ‘demonstrable effect on the potential market for, or value of,’ of [the book] or WCG’s proposed annotation.” Worldwide Church of God is represented by Allan Brown of Brown & Woods in Beverly Hills, Calif. Philadelphia Church of God is represented by Mark B. Helm and Kelly M. Klaus of Munger, Tolles & Olson in Los Angeles. �; Copyright 2000 Mealey Publications, Inc.

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