Fox News Reports Copyright 'Attack On Christians' – The Fair And Balanced Use Defense

Fox news recently reported on a dispute between Gulfport, Mississippi resident Kelly Taylor and her local Walgreens pharmacy. Ms. Taylor, using Walgreens' online photo service, attempted to print out a few pages of the Bible to hand out to members of her church. Walgreens refused, citing copyright law. When Walgreens told Taylor that it would require approval from the author, she informed the store that God was the author so "who exactly would I get the approval from?"

Ms. Taylor was "in total shock," so she contacted Fox News and declared that this was an "attack on Christians." In the resulting story, Fox News explained that copyright law only protects work for the life of the author "plus 50 years," and that it "has never applied to the Good Book." Therefore, Walgreens' position was "ludicrous."

Is that right? Granted, Fox News got the "plus 50 years" thing wrong - it's actually life of the author plus 70 years, at least in the United States. But isn't it otherwise correct? After all, we may disagree about the source of Biblical text, but nobody argues that it was authored after 1923, so it must be in the public domain whoever the author is.

Well, yes and no. Even if the original text is in the public domain, any additional creative work added by the publisher would be copyrightable, either in its own right or as a derivative work. This might include, for example, a new translation, commentary or images. In this case, it turns out that the Bible Ms. Taylor was trying to copy was an illustrated version. So, in addition to the ancient public domain text, it also contained artwork drawn by a much-less-than-ancient artist, and this artwork was most likely copyrighted. That's why Walgreens wouldn't copy it.

Copyright Infringement And Religious Texts

Is the moral of the story that simple: ok to copy old stuff; not ok to copy new stuff? Aren't there any special considerations in copyright law for religion? In fact, Congress has provided a narrow exception for the performance of dramatic and musical religious works, codified at 17 U.S.C. § 110. But there is no such exception for the unauthorized copying of religious books. In the absence of such an exception, defendants have asserted a variety of creative defenses when accused of infringing the copyrights in religious texts. Here are a few:

God as Author. In Urantia Foundation v. Maaherra, the subject was the Urantia Book, published in 1955 after it was purportedly dictated by "celestial beings"...