Or, more to the point, with their intellectual property rights. The plaintiffs in Society of the Holy Transfiguration Monastery Inc v Archbishop Gregory of Denver, Colorado, 2012 US App LEXIS 16025, are monks of an Eastern Orthodox order located in Brookline, Mass. Their principal work consists of translating Greek liturgical texts into English, which they have made available to Orthodox parishes on the condition that no further copies would be made. The monks wished to meet the need for religious texts by the faithful but also to solicit commentary on what they considered works in progress. The defendant left the monastery in Brookline to found his own monastery in Colorado. He also created a website were he made available, free of charge, texts which had been translated by his former colleagues. The Brookline monks sued for breach of copyright and breach of an earlier settlement under which Archbishop Gregory agreed not to duplicate or disseminate the translations.
The Massachusetts district court found in favour of the Brookline monks, rejecting the archbishop’s arguments that the works were in the public domain and failed to be ‘original’ works that would be protected by copyright. The 1st Circuit agreed. It dispatched the argument that any copyright in the works was transferred by operation of law to the Russian Orthodox Church Outside of Russia when the Holy Transfiguration monastery seceded from its jurisdiction in the 1980s, on the basis of common law and the statutes of the monastery itself. The contention that the works were in the public domain because the monks had failed to include a copyright notice on them also failed, because the works had not been made available through ‘general publication’ but only on a limited basis. The translations qualified for copyright: the level of originality that is required is extremely low and the works clearly surpassed it, given that their translation required the exercise of ‘careful literary and scholarly judgment’ (and even if not, US copyright legislation expressly extends to derivative works). There was ample evidence that the archbishop had copied the translations and had directed them to be placed on his website (the fact that a lowly monastic factotum had actually done the posting was not fatal to the claim against the archbishop). The archbishop also failed to establish that his acts constituted fair use, largely because he had profited (non-monetarily, it must be said) from posting the works at the expense of the plaintiffs. The judge also rejected the argument that the plaintiffs were somehow trying to create a monopoly over the texts at issue, given that they were available elsewhere in other translations.