An Eastern Orthodox archbishop infringed a monastery’s copyrights on English language translations of a number of ancient Greek religious texts, the U.S. Court of Appeals for the First Circuit concluded in an opinion dissecting the archbishop’s claims.

The court on August 2 affirmed U.S. District Judge Richard Stearns’ December 2010 grant of summary judgment to the monastery.

Judge Juan Torruella wrote the opinion in Society of the Holy Transfiguration Monastery Inc. v. Archbishop Gregory of Denver, joined by Judge Michael Boudin and retired U.S. Supreme Court Justice David Souter, sitting by designation.

According to court records, in December 2007 the monastery sued the archbishop, a former novice of its order, over Web site postings that allegedly infringed its copyrights on seven works. The monastery derives income from selling the works at issue.

In February 2010, the monastery prevailed on its breach-of-contract and infringement claims regarding one of the works. In December of that same year, Stearns held that the archbishop had infringed copyrights on an additional six works. He also found that the monastery owns the copyrights, not the Russian Orthodox Church Outside Russia.

Torruella agreed, citing an “absence of a clear or implicit agreement on the monastery’s part” to be permanently bound by the church’s statutory law or to relinquish its property to the church.

He rejected the church’s argument that the monastery’s works became a part of the public domain because they had been published without copyright notice before 1989. There had been only limited publication of the works to specific religious congregations, expressly to encourage editorial feedback, he said.

“Because the Archbishop has not established that ‘general publication’ without notice has ever occurred for any of the disputed Works, we may reject his public-domain claim without having to untangle the web of statutory regimes,” Torruella wrote.

Regarding the archbishop’s argument that any copyright claim was undermined by the works’ lack of originality, Torruella said, “The Copyright Act makes clear that translations may be original and copyrightable, despite being derivative of another product.”

Torruella turned to the archbishop’s argument that the works amount to non-copyrightable ideas because there are only a limited number of possible translations. He noted that, according to case law, translation involves many choices about how to express ideas.

“The Monastery having established both elements of an infringement claim—#8212;i.e., actual copying and actionable copying — we echo the district court’s determination that the Archbishop copied the Works,” he wrote. “We thus affirm the district court’s grant of summary judgment to the Monastery as to copyright infringement of the Works.”

The archbishop raised four defenses: That he’s not liable for direct infringement because he didn’t personally upload the translations; he’s immune under the 1998 Digital Millennium Copyright Act; his reproductions amounted to fair use under copyright law; and the monastery misused its copyright.

Regarding the first defense, Torruella wrote, “the Archbishop here engaged in sufficient acts of authority and control over the server and material actually posted that he may be held liable for direct infringement of the Works.”

The archbishop waived the digital copyright act claim by failing to include it in his pleadings, Torruella continued. And his fair-use defense failed because it didn’t matter that the archbishop hadn’t generated income from the infringement. He “made identical or near-verbatim copies of the Works” and harmed the their potential market value, the judge wrote.

Finally, Torruella rejected the argument that the monastery’s suit constituted anti-competitive behavior designed to stop higher church authorities from sharing ancient religious works with the Orthodox community. He noted that the monastery holds no monopoly on ancient Orthodox texts, for which there exist English translations by other publishers.

The archbishop’s lawyer, Chris Ingold, a Denver solo practitioner, said he and his client appreciate the attention that the court paid to their arguments but plan to seek a rehearing. “There’s a real concern on our part that there was never a jury trial in this case. Just from my reading of this very lengthy decision. I’m not seeing that the factual controversies were analyzed,” Ingold said.

As for the monastery, members are “thrilled” with the First Circuit’s decision, said Kristen McCallion, co-chairwoman of Fish & Richardson’s copyright group, who argued for the monastery before the First Circuit. Especially, she said, with “the court’s recognition that translations are copyrightable works and that the monastery’s translation process is a creative one that involves many artistic choices.”

Because the archbishop raised so many affirmative defenses, “we had to muddle though a lot of legal analysis,” she said. “We’re happy that the court was able to see through a fog of affirmative defenses the archbishop threw at us, particularly the fair-use defense.”

The case is notable for the court’s rejection of the argument that skill and creativity in the nonprofit sector are somehow less important than in the commercial sector, said Mark Fischer, a Boston and New York intellectual property and copyright partner at Philadelphia’s Duane Morris, who also represented the monastery.

“The monastery relies on its income on sale of its religious works as very important to their income. It’s not a trivial matter for them,” he said.

Additionally, the First Circuit appropriately dealt with the archbishop’s argument that his reproduction of the monastery’s works constitutes fair use. “That’s not the right view of the law. There are places where fair use applies, but this was extensive copying, and I think the court clearly held that,” Fischer said.

Sheri Qualters can be contacted at