Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism Thomas F. Cottert TABLE OF CONTENTS Introduction .............................................................................................. 324 I. On the Copyrightability of Religious Works ..................................... 334 A. Copyright and the Establishment Clause .................................... 334 B. Difficulties in Applying Copyright Law to Religious Works ..... 338 1. Authorship and Copyright Estoppel ..................................... 338 2. Derivative Works, Compilations, and Joint Works .............. 353 3. The Merger Doctrine ........................... 359 II. Accommodating the Unauthorized Use of Religious Works ............ 364 A. Copyright, Free Exercise Clause, and Permissive A ccom m odations ........................................................................ 365 B . F air U se ....................................................................................... 368 1. "Purpose and Character of the Use" Factor .......................... 371 2. "Nature of the Copyrighted Work" Factor ........................... 376 3. "Amount and Substantiality of the Use" Factor ................... 378 4. "Market Effects" Factor ....................................................... 379 5. The Interplay of Fair-Use Factors ........................................ 384 C. The Religious Freedom Restoration Act ..................................... 386 D. Copyright Act Section 110(3) ..................................................... 388 C onclusion ............................................................................................... 39 1 Copyright © 2003 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Professor and Director of the Intellectual Property Program, University of Florida Fredric G. Levin College of Law. I would like to thank the following individuals for their comments and criticism: Thomas Berg, Christina Bohannan, Jonathan Cohen, Marci Hamilton, Jeff Harrison, Paul Heald, Mark Helm, Joseph Lahav, Mark Lemley, Lyrissa Lidsky, Ira Lupu, William Marshall, Diane Mazur, David Nimmer, Ruth Okediji, William Page, Monroe Price, and Eugene Volokh. I also thank the faculties at the University of Florida Fredric G. Levin College of Law and at Florida State University College of Law and other participants in the Conference on Copyright in the Private Sector: The Engine of Free Expression or a Tool of Private Censorship? at the Benjamin N. Cardozo School of Law. Special thanks to Kendra Hinton for her excellent research assistance. Any errors that remain are mine. CALIFORNIA LA W REVIEW [Vol. 91:323 Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism Thomas F. Cotter This Article argues that some recent copyright-infringement cases illustrate how courts sometimes fail to take seriously the needs of religious believers to reproduce and distribute their religion's core texts for pur- poses of their religious practice. More specifically, although the Establishment Clause poses no obstacle to the government's conferral of a copyright "subsidy" upon the authors of religious texts, a variety of copy- right doctrines, including rules relating to authorship, copyright estoppel, and merger, suggest that some otherwise copyrightable religious texts may lack copyright protection due to the religion's attributionof the text to su- pernaturalorigin or to the needs of the faithful to access the precise words of the text. In addition, although the Free Exercise Clause does not require the government to exempt religious believersfrom general compliance with the Copyright Act, the fair-use doctrine should in some instances shield believers from liability, particularly when the copyright owner has sought to use copyright as a tool for suppressing the practice of a breakaway sect. If the law knows no heresy, then copyright law should not serve as a tool for repressing religious dissent. INTRODUCTION When the itinerant tinkerer Johannes Gensfleich Gutenberg intro- duced his moveable-type printing press to Germany sometime in the mid- fifteenth century,' he had little reason to foresee the remote consequences of his invention-notably the Protestant Reformation and the advent of I. For biographies of Gutenberg, see, for example, Guy BECHTEL, GUTENBERG ET L'INVENTION DE L'IMPRIMERIE: UNE ENQUETE (1992); ALBERT KAPR, JOHANN GUTENBERG: THE MAN AND His INVENTION (Douglas Martin trans., 1996). Inventors in Korea, China, Japan, and perhaps in other places as well, had discovered a variety of printing techniques long before their appearance in the West. See BECHTEL, supra, at 84-86; KAPR, supra, at 109-22. Prior to Gutenberg, however, there is no evidence of the invention of a moveable-type printing press, which enabled the publication of printed material on a much more efficient scale compared to any prior method. See BECHTEL, supra, at 86; KAPR, supra, at 114, 119-20, 132. There is also no conclusive evidence that Gutenberg was influenced by Eastern printing techniques, although some academics have speculated regarding that possibility. See BECHTEL, supra, at 87-89; KAPR, supra, at 115-16, 121-22. 2003] COPYRIGHT CENSORSHIP, AND RELIGIOUS PLURALISM 325 copyright law. The first made possible the mass distribution of books and pamphlets expressing views that dissented from the religious orthodoxy of the day, much to the chagrin of the Roman Catholic Church and, later, of the established Protestant churches. 2 It also made possible the mass distri- bution of vernacular translations of The Bible,3 the laity's reading of which many Catholic leaders at that time discouraged.4 Not surprisingly, both church and state, Catholics and Protestants, frequently reacted by attempt- ing to restrict the dissemination of the dangerous new ideas.5 A second, and not unrelated, effect of the invention of printing was the development of copyright law.6 Prior to the invention of the printing press, authors necessarily relied upon manual copyists to reproduce their works, and this technological limitation had two consequences. First, man- ual copying substantially limited the number of copies that could be made 2. There appears to be widespread consensus that the invention of the printing press played a significant role in causing the Reformation to occur in that particular time and place. For discussions, see, for example, A.G. DICKENS, THE GERMAN NATION AND MARTIN LUTHER chs. 5, 6 (1974); MARK U. EDWARDS, PRINTING, PROPAGANDA, AND MARTIN LUTHER 2-3, 172 (1994); ELIZABETH L. EISENSTEIN, THE PRINTING REVOLUTION IN EARLY MODERN EUROPE 148-55 (1983); John L. Flood, The Book in Reformation Germany, in THE REFORMATION AND THE BOOK 21, 25-26, 82 (Jean-Franqois Gilmont ed., Karin Maag trans., 1990). Inevitably, publishers produced works more radical than that which the followers of Luther and Calvin were willing to tolerate. See, e.g., Peter G. Bietenholz, Printing and the Basle Reformation, 1517-65, in THE REFORMATION AND THE BOOK, supra, at 235, 255-59 (discussing publication of Anabaptist and Unitarian works); Miriam Usher Chrisman, Reformation Printing in Strasbourg, 1519-60, in THE REFORMATION AND THE BOOK, supra, at 214, 223-28; Flood, supra, at 32-33, 64-66. For discussions of Catholic writers' use of the press to respond to the Protestant challenge, see, for example, EDWARDS, supra, at 28-37, 57-82; EISENSTEIN, supra, at 156, 159-60. 3. The text of Gutenberg's version of The Bible is that of St. Jerome's Latin Vulgate, the biblical text most commonly used by the Roman Catholic Church at that time. See JAMES THORPE, THE GUTENBERG BIBLE: LANDMARK IN LEARNING 26 (2d ed. 1999). The invention of printing soon made possible the wide dissemination of vernacular translations reaching wide lay audiences, notwithstanding literacy rates that were low in comparison with the present day. See EDWARDS, supra note 2, at 123-30; see also Flood, supra note 2, at 68-72, 85, 88-90; Francis M. Higman, French- Speaking Regions, 1520-62, in THE REFORMATION AND THE BOOK, supra note 2, at 104, 142-43; Andrew G. Johnston, Printing and the Reformation in the Low Countries, 1520-c.1555, in THE REFORMATION AND THE BOOK, supra note 2, at 154, 171-76; David Loades, Books and the English Reformation Prior to 1558, in THE REFORMATION AND THE BOOK, supra note 2, at 264,272. 4. See, e.g., EISENSTEIN, supra note 2, at 162, 167-68; Flood, supra note 2, at 92; Higman, supra note 3, at 107; Jean-Frangois Gilmont, Conclusion, in THE REFORMATION AND THE BOOK, supra note 2, at 469, 470-74. 5. See EISENSTEIN, supra note 2, at 173-77; Bietenholz, supra note 2, at 259-61, Flood, supra note 2, at 91-96; Higman, supra note 3, at 149-52; see also Michael J. Walsh, Church Censorship in the 19th Century: The Index of Leo XIII, in CENSORSHIP AND THE CONTROL OF PRINT IN ENGLAND AND FRANCE 16OO-1910, at 111, 115-17 (Robin Myers & Michael Harris eds., 1992). For discussions of censorship within the Protestant community, see, for example, JEAN-FRAN4OIS GILMONT, JEAN CALVIN ET LE LIVRE IMPRIMt ch. 6 (1997); Chrisman, supra note 2, at 228. 6. There are, to be sure, some apocryphal accounts of authorship rights prior to the invention of printing, but scholars do not view these stories as evidence of early copyright norms. See, e.g., AUGUSTINE BIRRELL, SEVEN LECTURES ON THE LAW AND HISTORY OF COPYRIGHT IN BOOKS 41-42 (1899); HARRY RANSOM, THE FIRST COPYRIGHT STATUTE: AN