Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory of Denver , 689 F.3d 29 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1262
SOCIETY OF THE HOLY TRANSFIGURATION MONASTERY, INC.,
Plaintiff, Appellee,
v.
ARCHBISHOP GREGORY OF DENVER, COLORADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Boudin, Circuit Judge.
Chris L. Ingold, with whom Ingold Law, LLC, Harold R. Bruno,
III, and Robinson Waters & O'Dorisio, P.C., were on brief for
appellant.
Kristen McCallion, with whom Lawrence K. Kolodney, Eric J.
Keller, Fish & Richardson P.C., Mark A. Fisher, and Duane Morris
LLP, were on brief for appellee.
August 2, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
TORRUELLA, Circuit Judge. Interpretations and studies of
theological texts have led to countless disputes throughout the
ages. This appeal concerns a different form of conflict arising
from one monastery's translation of certain ancient religious
texts, and another monastery's unauthorized use of verbatim or
near-verbatim copies of such texts on its Orthodox faith-devoted
website. Seven, a number both religiously and factually
significant, is the quantity of works the former monastery contends
the latter infringed. The parties here let fly a legion of
arguments and defenses as to why ultimate judgment should rest in
their favor. We have pored over the voluminous record before us
and the district court's orders granting summary judgment to the
former monastery. See Holy Transfig. Monas. v. Archbishop Gregory,
754 F. Supp. 2d 219 (D. Mass. 2010) ("Holy Transfiguration II");
Holy Transfig. Monas. v. Archbishop Gregory, 685 F. Supp. 2d 217(D. Mass. 2010) ("Holy Transfiguration I"). We arrive at the same
conclusion as the district court and hold that summary judgment was
properly granted as to each of the former monastery's claims. We
accordingly affirm the decision of the district court.
I. Background1
A. A Tale of Two Monasteries
1
We construe "the record in the light most favorable to the
nonmovant and resolv[e] all reasonable inferences in the party's
favor." Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir.
2009) (quoting Rochester Ford Sales, Inc. v. Ford Motor Co., 287
F.3d 32, 38 (1st Cir. 2002)) (internal quotation mark omitted).
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Plaintiff-Appellee Society of the Holy Transfiguration
Monastery, Inc. (the "Monastery") is an Eastern Orthodox monastic
order located in Brookline, Massachusetts. It was founded in the
early 1960s and incorporated as a non-profit organization. In
1965, the Monastery began a spiritual affiliation2 with the bishops
of the Russian Orthodox Church Outside of Russia ("ROCOR").
Although the Monastery concedes it commemorated the bishops of
ROCOR for a time (until 1986 to be precise), it considers itself an
independent entity in both its organization and governance. Stated
differently, the Monastery was not formed at the order or direction
of ROCOR or any bishop a part thereof; instead, its formation
occurred prior to its spiritual affiliation with ROCOR. On
December 8, 1986, the Monastery ceased its commemoration of the
ROCOR bishops, thus ending its spiritual affiliation with ROCOR.
Since the Monastery's formation, its members, consisting
of approximately thirty-five monks, have worked on translating
religious texts, including services, psalms, and prayers, from
their original Greek into English. The cardinal works at issue
(the "Works") consist of (1) the St. Isaac Work,3 (2) the Psalter,
2
The record reflects that "spiritual affiliation," often used
interchangeably with the terms "ecclesiastical jurisdiction" or "in
communion," is a term used when a monastery agrees with the
particular confession of faith of a bishop or group of bishops and
enjoys their blessing during that time.
3
The full title of the St. Isaac work is "The Ascetical Homilies
of St. Isaac the Syrian."
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(3) the Octoechos, (4) the Pentecostarion, (5) the Dismissal Hymns,
(6) the Prayer Book, and (7) the Horologion.4
Though the Works and their corresponding translations
are of ancient texts, they became in demand over the years amongst
parishes due to an increasing need for English versions of Orthodox
liturgical texts for liturgies conducted in English. The Monastery
obliged such requests, but on a limited basis. For instance, it
provided copies of its then-in-progress Dismissal Hymns to
approximately twelve parishes with specific instructions that no
copies be made. Its limited distribution purpose was two-fold: the
Monastery hoped to receive feedback as to the quality of the
translations for those parishes seeking a linguistically-friendly
English-language religious text, and at the same time, help to meet
the growing need for religious texts in English language religious
services.
Not all were satisfied with the Monastery's vocation. In
the late 1970s (before the Monastery's termination of its spiritual
affiliation with ROCOR), Defendant-Appellant Archbishop Gregory
(the "Archbishop"), a member of the Monastery at that time,
4
The respective known dates of registration for these Works are
January 3, 1986 (St. Isaac Work), February 24, 1986 (Psalter), June
24, 1986 (Octoechos), June 24, 1986 (Pentecostarion), December 10,
1987 (Dismissal Hymns), November 16, 1988 (Prayer Book), and
December 3, 1997 (Horologion). Of the seven, four works were
registered as published works (St. Isaac, Horologian, Prayer Book,
and Psalter), and three, as unpublished works (Octoechos, Dismissal
Hymns, and Pentecostarion).
-4-
obtained ROCOR's permission to leave the Monastery and move west to
Colorado where he formed his own monastery, the Dormition Skete.
Throughout the years, the Dormition Skete has dedicated itself to
painting traditional Byzantine Orthodox icons for both church and
private use. It is only composed of a few members; those relevant
to this dispute include the Archbishop and Father Peter, a priest
monk5 in the order who, true to his apostolic name, has served and
supported the Archbishop in various capacities.
In addition to forming the monastery, the Archbishop
created a website devoted to the Orthodox faith,
www.trueorthodoxy.info (the "Website"), over which he has conceded
to having authority and ownership. The asserted purpose of the
Website is "to share information about the Orthodox Christian
religion with users of the internet." Created on February 8, 2005,
religious works have since been posted free-of-charge to the
Website for non-profit, educational purposes. Of relevance to this
dispute are a posting of a portion of the St. Isaac work, done
sometime in 2005, and postings of the remaining six Works in August
2007. To perform such postings, the Archbishop relied on Father
Peter, who helped build, design, and program the Website.
5
At deposition, Father Peter defined the position of "priest
monk" as a monk (a member of a monastic order who has withdrawn
from the world for religious reasons and assumed certain vows) who
also performs religious services.
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Like many a missionary before him, the spreading of
religious teachings (here, through the posting of translated
religious texts via the internet) brought trouble upon the
Archbishop -- trouble not isolated to this dispute alone. On
January 23, 2006, the Monastery filed a lawsuit in the U.S.
District Court for the Eastern District of Michigan against the
Archbishop and his publisher at the time, Sheridan Books, Inc. The
Monastery alleged copyright infringement of two works, the St.
Isaac work (at issue on this appeal)6 and the St. Andrew work (not
at issue on this appeal).7 The parties ultimately entered into a
Settlement Agreement on July 24, 2006. Pursuant to the terms of
this agreement, the court dismissed the Michigan lawsuit with
prejudice. Notably, the Archbishop, in settling, agreed to the
following:
[T]he Monastery is the owner of the copyrights
in and to the translations of [the St. Andrews
work and the St. Isaac work] . . . . [The
Archbishop] further agree[s] that, in
consideration of the overall settlement of the
dispute concerning the Works, [he] will not
challenge the validity of the Monastery's
copyright and/or the registrations in and to
the Works at any time in the
future. . . . Archbishop Gregory warrants and
represents that . . . no copy, duplicate,
transcript, reproduction or replica, of any
6
The electronically posted (and now contested) St. Isaac work
consisted of one of the homilies from the Ascetical Homilies of
Saint Isaac, specifically, Homily 46.
7
The full title of the St. Andrew work is "The Life of Saint
Andrew the Fool-For-Christ of Constantinople."
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portion of the St. Isaac Work has been or will
be printed or published by or for Archbishop
Gregory and that Archbishop Gregory asserts
that he does not have any knowledge of the
existence of any copy, duplicate, transcript,
reproduction, or replica of any portion of the
St. Isaac Work in any medium, and will not
assist in the creation of copy [sic],
duplicate, transcript reproduction or replica
of the St. Isaac Work in any medium, at any
time in the future.
(Emphasis added.)
Despite this agreement, the contested portion of the St.
Isaac work remained on the Dormition Skete's Website post
resolution of the Michigan dispute, and in August 2007, a
collection of the remaining six Works also was posted to the site.
B. Seeking Secular Judgment
The Monastery took action. On December 28, 2007, it
filed the Complaint in this action alleging infringement of the
Monastery's copyrights in the Works and breach of the Settlement
Agreement for the continued display of portions of the St. Isaac
work.
In response, the Archbishop promptly removed what he
believed at the time to be the allegedly infringing material from
the site. He then filed a motion to dismiss the Monastery's
Complaint on February 14, 2008, which the court subsequently
denied. When his efforts proved unsuccessful, the Archbishop
answered the Monastery's Complaint on April 24, 2008. In his
Answer, the Archbishop admitted that the Works, including a portion
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of the St. Isaac work, were available on his Website. However, he
denied both the Monastery's claim of ownership to the Works'
copyrights, as well as its claims of copyright infringement. The
Archbishop also raised several defenses, including that the
Monastery's Works were made for hire for ROCOR; the Works had been
published without copyright notice and were in the public domain;
the Archbishop made fair use of the Works; and the dispute was a
Church matter, best left to a different hierarchy of laws.
On October 30, 2009, each of the parties filed cross
motions for partial summary judgment. The Monastery claimed it was
entitled to partial summary judgment because the Archbishop had
breached the parties' prior Settlement Agreement by posting a
portion of the St. Isaac work on his Website, and because the
Archbishop's posting of the work, in and of itself, constituted
copyright infringement. The Archbishop riposted, challenging the
Monastery's ownership of copyrights in the Pentecostarion, the
Octoechos, the Psalter, and the St. Isaac works, and asserting that
ROCOR was the true owner of the copyrights at issue. Staying firm
in his position that the Monastery lacked any legal right to
enforce ROCOR's copyrights against the Archbishop, the Archbishop
argued there was no genuine issue of material fact for the court to
resolve.
The district court found merit to the Monastery's motion.
Holy Transfiguration I, 685 F. Supp. 2d at 229. It granted partial
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summary judgment in favor of the Monastery as to both the breach of
contract claim and allegation of copyright infringement of the St.
Isaac work on February 18, 2010. Id. at 223-26. It in turn denied
the Archbishop's motion, noting that he proffered no valid defense
to the Settlement Agreement's enforcement, failed to establish a
fair use defense, and could not show a valid ownership claim in the
Works. Id. at 223-24, 226-29. Regarding the latter finding, the
district court noted that the Archbishop's contention that ROCOR
was the true owner of the contested copyrights failed, as the ROCOR
documents on which he relied had not been authenticated; the court
also expressed misgivings as to whether the Archbishop had standing
to raise an ownership claim on behalf of ROCOR. Id. at 228-29 &
n.17.
On July 23, 2010, the Monastery moved yet again for
summary judgment, this time on its surviving infringement claims
against the Archbishop. The Monastery alleged that the Archbishop
infringed its copyrights in the remaining six Works, specifically,
the Psalter, the Prayer Book, the Horologian, the Pentecostarion,
the Dismissal Hymns, and the Octoechos.
The Archbishop opposed the motion. He asserted that the
Monastery was not the owner of the copyrights at issue; the Works
were in the public domain, having been published without copyright
notice; and the Works lacked originality. Holy Transfiguration II,
754 F. Supp. 2d at 224-26. He also asserted a fair use defense, as
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well as a defense under the Digital Millennium Copyright Act
("DMCA"), the latter of which limits the liability of internet
service providers ("ISP") for copyright infringement by their
users. See id. at 227-29; see also 17 U.S.C. §§ 101, et seq.
The district court again found in favor of the Monastery.
Holy Transfiguration II, 754 F. Supp. 2d at 230. As before, the
court rejected the Archbishop's argument that ROCOR was the true
owner of the copyrights and found no merit to his fair use defense.
Id. at 224, 227-28. It additionally held that the Archbishop's
evidence in support of his public domain argument was "neither
clear nor persuasive," id. at 225, and found that "[t]he
distribution by the Monastery of the Works to a select group of co-
religionists for restricted purposes constitutes a limited
publication as a matter of law," which does not extinguish a
copyright, id. The district court further determined that the
Archbishop failed to show the Works lacked originality, as he
provided no evidence to support his argument or to counter the
Monastery's "detailed side-by-side comparisons, illustrating the
significant differences between the Monastery's Works and those"
the Archbishop referenced as illustrating the lack of originality
between the Monastery's translations and other versions. Id. at
226. Lastly, the district court deemed the Archbishop's eleventh
hour DMCA safe harbor defense, not previously raised in either his
Answer or amended Answer, waived and additionally noted the
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questionable application of the DMCA to the Archbishop. Id. at
228-29.
The Archbishop now appeals the district court's grants of
summary judgment. The Archbishop reasserts for this court many of
his prior arguments, including that ROCOR, not the Monastery, owns
the copyrights to the contested Works; the Works lack originality;
the Works were placed in the public domain without copyright
notices; the Archbishop's use of the Works was fair; and the
Archbishop is sheltered from liability pursuant to DMCA's safe
harbor provision, and if he is not, he holds neither direct nor
vicarious liability for the alleged infringement. The Archbishop
additionally scatters the following claims amidst his prior
arguments: the Archbishop was not the alleged direct infringer of
the Works; the district court improperly determined that the
Archbishop lacked standing to challenge the Monastery's ownership
of the St. Isaac work; and the Monastery's course of engaging in
litigation constituted an improper attempt to create a monopoly.
We begin our journey through the intricacies of copyright law
applicable to this dispute.
II. Discussion
We lay the foundation of the applicable standard of
review. Summary judgment is properly granted where the movant
"shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R.
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Civ. P. 56(a). We examine the district court's grant of summary
judgment with fresh and searching eyes, Airframe Sys., Inc. v. L-3
Commc'ns Corp., 658 F.3d 100, 105 (1st Cir. 2011), keeping their
lenses tinged towards "construing the record in the light most
favorable to the nonmovant and resolving all reasonable inferences
in that party's favor." Carmona v. Toledo, 215 F.3d 124, 131 (1st
Cir. 2000).
To establish copyright infringement, a plaintiff must
concurrently proceed down two roads and "prove two elements: '(1)
ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.'" Situation Mgmt. Sys.,
Inc. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1st Cir. 2009)
(quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
361 (1991)). We address each prong's requisites, i.e., ownership
and copying, and set off first upon the ownership path.
A. Validity of Ownership
The Copyright Act provides that copyright protection
extends to the individual who actually created the work. See 17
U.S.C. § 201(a) ("Copyright in a work . . . vests initially in the
author or authors of the work."). To show ownership of a true
copyright, "a plaintiff must prove that the work as a whole is
original and that the plaintiff complied with applicable statutory
formalities." Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d
807, 813 (1st Cir. 1995); see also T-Peg, Inc. v. Vt. Timber Works,
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Inc., 459 F.3d 97, 108 (1st Cir. 2006) (the claimant bears the
burden of proving a valid copyright and its infringement). It is
generally accepted that "a certificate of copyright registration
constitutes prima facie evidence of copyrightability and shifts the
burden to the defendant to demonstrate why the copyright is not
valid." Lotus, 49 F.3d at 813 (emphasis in original) (quoting
Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106 (9th
Cir. 1990)) (internal quotation mark omitted).
The Monastery has met its prima facie burden of
establishing ownership of the copyrights to all the Works, as it
holds a certificate of registration issued by the U.S. Copyright
Office for each religious text.8 See 17 U.S.C. § 410(c); Situation
Mgmt. Sys., 560 F.3d at 58 (stating "certificates of copyright are
prima facie evidence of [a plaintiff's] ownership of valid
copyright interests in its works"). Thus, it now falls to the
Archbishop to carry the burden of establishing the invalidity of
the Monastery's copyrights. See Lotus, 49 F.3d at 813; CMM Cable
Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1513 (1st Cir.
8
According to the record, the St. Isaac, Psalter, Prayer Book,
and Horologion Works were registered with the U.S. Copyright Office
as published works within approximately five years of their first
publication dates. See 17 U.S.C. § 410(c); Brown v. Latin Am.
Music Co., 498 F.3d 18, 23 (1st Cir. 2007) (stating "a registration
within five years of first publication is accompanied by a
presumption of validity of the copyright"). As previously noted,
the remaining works, the Pentecostarion, Dismissal Hymns, and
Octoechos, were registered with the U.S. Copyright Office as
unpublished works.
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1996). Although the Archbishop sets forth several arguments
challenging the Monastery's ownership of the copyrights, he fails
to so bear his evidentiary burden. We address each of his
ownership challenges in turn.
1. Transfer Alert: Who Owns the Copyright?
The cornerstone of the Archbishop's argument is that the
Monastery's works are in fact owned by a third party, ROCOR. The
Archbishop argues that the Monastery was once a part of ROCOR and
its secession in 1986 had the effect of transferring its copyrights
in the Works to ROCOR.
There are two ways under governing law by which a
transfer of copyright may be effectuated. The first manner is by
"an instrument of conveyance, or a note or memorandum of the
transfer, [that] is in writing and signed by the owner of the
rights conveyed or such owner's duly authorized agent." 17 U.S.C.
§ 204(a). The Archbishop does not allege, nor does the record
reveal, any writing or instrument by the Monastery showing such an
intent to transfer ownership of the Works' copyrights to ROCOR or
another entity. Because there is no signed writing or instrument
establishing a transfer of copyright to ROCOR, we turn to the
second means of copyright transfer, i.e., by operation of law, with
the governing law in this case being the Monastic Statutes for
Monasteries of ROCOR (the "Monastic States") and the Regulations of
ROCOR (the "Regulations").
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The Archbishop rests the yoke of his persuasive burden on
this latter means of copyright transfer. Specifically, he contends
a transfer by operation of law occurred here because, pursuant to
the Monastic Statutes (to which all member monasteries must agree
on joining ROCOR) the Monastery expressly accepted that if it ever
ceased to be a ROCOR monastery, all of its property would transfer
to ROCOR. The Archbishop cites to the following language from the
Monastic Statutes for support:
The articles of incorporation of the
monastery, convent or community must make it
clear that it will always be in the
jurisdiction of the Synod of Bishops of
[ROCOR] and that, in case of its closing or
liquidation, its possessions will be handed
over to the diocese subject to the Synod of
Bishops of [ROCOR], or directly to the Synod
of Bishops.
(Emphasis added.)
The Archbishop's argument leads us into a desert of case
law on the issue of copyright transfers by operation of law. See
Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 963 (8th
Cir. 2005) ("[T]he Copyright Act does not define the phrase 'by
operation of law,' and sparse case law addresses the transfer of
copyright by operation of law.") (internal quotation marks
omitted); Valdez v. Laffey Assocs., No. 07-CV-4566 (BMC)(LB), 2010
WL 1221404, at *6 (E.D.N.Y. Mar. 26, 2010) (noting sparsity of case
law on transfer of copyright ownership by operation of law); Brooks
v. Bates, 781 F. Supp. 202, 205 (S.D.N.Y. 1991) (same). Indeed,
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not even the Copyright Act defines what constitutes a transfer by
operation of law. See Taylor, 403 F.3d at 963.
The few cases addressing this question generally concern
a transfer by operation of state law, with the transfers at issue
typically arising from a corporate merger or dissolution,
bankruptcy, foreclosure, and the like. See id. at 963-64; Valdez,
2010 WL 1221404, at *6. Such cases also focus on whether the
author of the transfer provided express or implied consent to such
change of ownership. Taylor, 403 F.3d at 963; Brooks, 781 F. Supp.
at 205 (stating "transfers of copyrights by operation of
law . . . depend upon circumstances which establish the author's
express or implied consent"); see also Time, Inc. v. Kastner, 972
F. Supp. 236, 238 (S.D.N.Y. 1997). Thus, a transfer by operation
of law is a voluntary transfer done on the part of the copyright
owner to another. See Advance Magazine Publishers, Inc. v. Leach,
466 F. Supp. 2d 628, 636 (D. Md. 2006) ("[T]ransfers by operation
of law are expressly limited to voluntary transfers, except in
bankruptcy proceedings.").
The Archbishop's argument differs from the few cases that
address transfers of copyright ownership by operation of law. To
begin with, the underlying law which the Archbishop asks us to
interpret and apply -- ROCOR's Monastic Statutes and Regulations --
contrasts with the aforementioned cases in which state law
predominantly served as the guiding light.
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Generally, the Supreme Court has cautioned that where
parties "seek resolution of a church property dispute in the civil
courts[,] there is substantial danger that the State will become
entangled in essentially religious controversies." Serbian E.
Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 709
(1976); see also Presbyterian Church in U.S. v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church et al., 393 U.S. 440, 449 (1969)
("If civil courts undertake to resolve [church property litigation
disputes triggering religious doctrine and practice] . . . the
hazards are ever present . . . of implicating secular interests in
matters of purely ecclesiastical concern."). Against this concern
must be weighed the "obvious and legitimate interest in the
peaceful resolution of property disputes, and in providing a civil
forum where the ownership of church property can be determined
conclusively." Jones v. Wolf, 443 U.S. 595, 602 (1979). The
Supreme Court often has echoed that civil courts may resolve church
property disputes, "so long as [such resolution] involves no
consideration of doctrinal matters, whether the ritual and liturgy
of worship or the tenets of faith." Id. (quoting Md. & Va.
Eldership of Churches of God v. Church of God at Sharpsburg, Inc.,
396 U.S. 367, 368 (1970)). Where such resolution is possible, the
Supreme Court has advocated a "neutral principles of law" approach,
"developed for use in all property disputes." Presbyterian Church,
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393 U.S. at 449; see also Jones, 443 U.S. at 603; Md. & Va.
Churches, 396 U.S. at 368-70 (1970) (Brennan, J., concurring).
A review of the record confirms that we may apply the
Monastic Statutes' plain terms without treading upon religious
doctrine, church governance, and ecclesiastical laws -- territory
that the Supreme Court has made clear lies beyond our civil court
jurisdiction. The specific section of the Monastic Statutes that
the Archbishop asks us to apply provides in part:
The articles of incorporation of the monastery
[here, appellee] . . . must make it clear that
it will always be [under ROCOR]
jurisdiction . . . and that, in case of its
closing or liquidation, its possessions will
be handed over to the diocese . . . ."
Neutrally applying this plain language, we conclude that the
Archbishop's position as to ROCOR's ownership holds little water.
We first examine the Monastic Statute language to which
the Archbishop expressly directs us. We split the statutory
language in two and turn first to its requirement that a
monastery's articles of incorporation clearly state ROCOR
jurisdiction.
a. Monastic Statute Requirement that the
Monastery's Articles of Incorporation Expressly
Affirm ROCOR Jurisdiction
An examination of the Monastery's various articles of
incorporation and by-laws9 does not show language to the effect
9
Most of the copies of the Monastery's by-laws and articles of
incorporation in the record do not contain a date, making it
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that, from the date of its spiritual affiliation onward, the
Monastery would permanently be under ROCOR jurisdiction or that it
agreed to have its property continually fall under ROCOR's dominion
and control. In fact, a review of all such articles and by-laws
reveals no reference whatsoever to ROCOR or to the entities'
ecclesiastical affiliation. The same holds true for a review of
the certificates of registration (dating from 1986, the year the
Monastery ceased its spiritual affiliation with ROCOR, on through
1997) for each of the respective Works. Each certificate expressly
lists under Name of Author, "Holy Transfiguration Monastery," with
no mention of or reference to ROCOR. The absence of a clear or
implicit agreement on the Monastery's part (whether in its articles
of incorporation, by-laws, the Works' certificates of registration,
or otherwise) to be permanently bound by ROCOR statutory law or to
relinquish title in its property to ROCOR does not constitute the
type of "express or implied consent to transfer" copyright
ownership that courts have held sufficient to support the finding
of a transfer by operation of law. Valdez, 2010 WL 1221404, at *6;
see also Taylor, 403 F.3d at 963.
b. Monastic Statute Requirement that Upon
Closing or Liquidation, the Monastery's
Possessions Cede to ROCOR
unclear as to how recent or old the various versions are and where
they fall in relation to the period of the Monastery's spiritual
affiliation with ROCOR.
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The Archbishop argues that when the Monastery ceased
commemorating the bishops of ROCOR, this act constituted a "closing
or liquidation" under the statutes, and thus, all of the
Monastery's ownership claims and property interests were
transferred to ROCOR. The Archbishop likens the Monastery's
termination of ecclesiastical affiliation to a corporate
dissolution, merger, bankruptcy, mortgage foreclosure, or the like,
the latter of which courts have held may indicate a transfer of
copyright by operation of law. Cf. Lone Ranger Television, Inc. v.
Program Radio Corp., 740 F.2d 718, 719, 721 (9th Cir. 1984)
(finding transfer of copyright by operation of law where
corporation merged into another, leaving one surviving company that
then transferred copyright to subsidiary); U.S. Home Corp. v. R.A.
Kot Homes, Inc., 563 F. Supp. 2d 971, 976 (D. Minn. 2008)
(similar); Fantasy, Inc. v. Fogerty, 664 F. Supp. 1345, 1356 (N.D.
Cal. 1987) (concluding copyright transfer occurred where assets
from dissolving corporation were transferred to sole shareholder).
In contrast to these cases -- and even more telling, in
contrast to the specific language of the statute -- the Monastery
here continued to exist after it terminated its commemoration of
the ROCOR bishops; it did not close, liquidate, dissolve, merge
into another religious institution, or otherwise discontinue its
existence. Instead, it continued to operate as it had prior to its
spiritual affiliation with ROCOR, as an independent monastery. The
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express terms of the Monastic Statutes are clear: "in case of [a
monastery's] closing or liquidation, its possessions will be handed
over to the diocese" (emphasis added). Because the Monastery never
closed, liquidated, or otherwise ceased its existence, no such
"hand[ing] over" of its possessions to ROCOR could have taken
place, unless it authorized otherwise. And as we have explained,
we find no such authorization or agreement in the record.
c. Additional Relevant Language in the
Monastic Statutes
Lastly, immediately preceding the statutory language
referenced and discussed above, the statute states that "[t]he
possessions of a monastery, convent or community are its property
and registered in its name, which is why each monastery, convent
and community must take steps to become incorporated as an entity"
(emphasis added). Reading this language, it seems clear that a
monastery, on joining ROCOR, remains the owner of its possessions
unless and until it becomes incorporated as an entity of ROCOR.
Stated differently, if a monastery never so incorporates itself as
dictated by the Monastic Statutes, its possessions will remain
under the monastery's domain.
Notably, a review of the record reveals no such
incorporation on the part of the Monastery. The most the evidence
shows is that the Monastery was founded in 1960 independently of
ROCOR -- i.e., not at the order or request of ROCOR -- and
incorporated in Massachusetts as a non-profit corporation on
-21-
January 12, 1961, before its spiritual affiliation with ROCOR. In
1965, the Monastery commenced its spiritual affiliation with ROCOR,
but the only act it seems to have taken reflecting such an
affiliation (the Archbishop pointing us to no contradictory
evidence) is acceptance of an antimension,10 which the Monastery
returned when it discontinued its affiliation with ROCOR. We are
far from being authorities as to the weight the giving of an
antimension to another religious body might hold under church law
and offer no ruminations on the matter. But a review of the
evidence reveals no other act or document confirming that the
Monastery reincorporated itself under ROCOR law. The giving of a
consecrated cloth does not, under civil law, ring of the type of
alteration in corporate structure that a transfer in authority over
the Monastery's possessions may properly be deemed to have
occurred.
In sum, with no evidence in the record showing a transfer
of copyright ownership by operation of law, we hold that the
Monastery, and not ROCOR, holds title to the copyrights at issue in
this dispute.
2. No Notice?: No Problem
The Archbishop casts his next lot and contends that
certain of the Monastery's Works became a part of the public domain
10
The Monastery defines an antimension as "a cloth signed by a
bishop that is kept on an altar table to indicate that the bishop
has consecrated the cloth to be served on as an altar."
-22-
because they were published without copyright notice prior to 1989.
There were three paths under the common law pursuant to which a
work could be exposed to the public or enter the public domain:
(1) exhibition or performance of the work; (2) limited publication;
and (3) general publication. Burke v. Nat'l Broad. Co., 598 F.2d
688, 691 (1st Cir. 1979). Only one such path, however, would
extinguish the creator's copyright in a work; the road to such loss
was general publication. Id.; see Brown, 498 F.3d at 23. For the
most part, the Copyright Act of 1976 abolished the common law of
copyright, but even under the 1976 Act, general publication without
notice could cause a work to enter the public domain if the
copyright owner failed to register the work within five years of
the date of first publication. Brown, 498 F.3d at 23; see also
Charles Garnier, Paris v. Andin Int'l, Inc., 36 F.3d 1214, 1224
(1st Cir. 1994). The Berne Convention Implementation Act of 1988
transformed this legal landscape, and notice is no longer mandatory
for works published after that Act's March 1, 1989 effective date.
See Pub. L. No. 100-568, sec. 7, § 401(a), 102 Stat. 2583, 2857
(codified at 17 U.S.C. § 401(a)); Garnier, 36 F.3d at 1219. But
the Berne Act does not apply to works published before 1989, so a
work published without proper notice prior to 1989 would still
become part of the public domain if the copyright owner failed to
cure the defective notice in time. Id. at 1224-26.
-23-
On appeal, the Archbishop does not clarify whether his
position is that all of the disputed Works passed into the public
domain or that only some did. Moreover, he does not clarify which
of the three copyright regimes -- the 1909 Act, the 1976 Act, or
the Berne Act -- apply to which works. Regardless, under all three
regimes, lack of proper notice definitely would not render the
Works part of the public domain if there had been no "general
publication" of the Works. 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.
A general publication is "when a work is made available
to members of the public at large without regard to who they are or
what they propose to do with it." Burke, 598 F.2d at 691. That
is, a general publication consists of such a level of circulation
within the public sphere that a work may be deemed "dedicated to
the public and rendered common property." Id. Conversely, a
limited publication "occurs when tangible copies of the work are
distributed, but to a limited class of persons and for a limited
purpose." Id. at 692.
The Archbishop's brief arguments on appeal do little to
show such a dispersal of the Works that they could be deemed to
have entered the public domain. At most, the Archbishop contends
-24-
that the Monastery "allowed the disputed Works to pass into the
public domain and provided the court with evidence of the same,"
and therefore, the district court erred in granting summary
judgment against him. The evidence to which the Archbishop directs
our attention, however, does not show the wide distribution
typically associated with a general publication; instead, it simply
shows the Archbishop's unsupported assertions that translations of
certain Works were disseminated into the public, with a vague
reference to the fact that certain Works were sent to people for
use in their churches.
The Monastery does not contest this latter proposition.
In fact, it concedes it authorized St. Nectarios Press to
distribute booklets –- composed of in-progress translations of
certain of the Works at issue on appeal expressly attributing
copyright ownership to the Monastery –- to certain parishes for
their use and editorial critiques. Any such promulgation though,
according to the Monastery, was restricted and should be deemed a
limited publication not requiring such notice.
We agree. Delivery of these booklets to selected
religious congregations for the circumscribed purpose of literary
feedback rings more of a limited publication (distribution "to a
limited class of persons and for a limited purpose") – than of a
general publication (distribution to "the public at large without
regard to who they are or what they propose to do with [the
-25-
work]"). Burke, 598 F.2d at 691; see also Warner Bros. Entm't,
Inc. v. X One X Prods., 644 F.3d 584, 593 (8th Cir. 2011)
(distinguishing between a general publication and a limited
publication).
The Archbishop directs us to nothing more than his own
unsubstantiated contentions that certain Works were "passed around"
in the public sphere for decades without notice. Even accepting
this statement as true, we face the reality that not just any
publication of the Works without notice will insert them into the
public realm; instead, any such injection must be authorized by the
copyright holder, i.e., the one effectively relinquishing its
copyright. Harris Custom Builders, Inc. v. Hoffmeyer, 92 F.3d 517,
521 (7th Cir. 1996) ("A finding of forfeiture of copyright
protection cannot be based on an unauthorized distribution of the
work without notice because the notice requirement applies only to
copies of works published 'by authority of the copyright owner,'
pursuant to § 401(a)."); see also Copyright Act of 1976, Pub. L.
No. 94-553, § 401(a), 90 Stat. 2541, 2577 (amended 1988) ("Whenever
a work protected under this title is published in the United States
or elsewhere by authority of the copyright owner, a notice of
copyright as provided by this section shall be placed on all
publicly distributed copies . . . ." (emphasis added)); Cipes v.
Mikasa, Inc., 346 F. Supp. 2d 371, 374-75 (D. Mass. 2004); Zito v.
Steeplechase Films, Inc., 267 F. Supp. 2d 1022, 1026 (N.D. Cal.
-26-
2003) (citing 1 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 4:04 at 4-22 to 4-23 (2002)) (hereinafter 1 Nimmer).
Here, the only copyright holder that could have authorized such
publication without notice is the Monastery. We find no evidence
of such authorization in the record, nor does the Archbishop direct
us to any material showing to the contrary.11
Because any authorized publication of the Works that took
place was only to a select group (specific religious congregations)
for a particular purpose (editorial feedback), only a limited
publication took place. Thus, the Monastery did not lose its
copyright ownership via a general publication. If any copies of
the Works were circulated outside the targeted circle of parishes,
it was unauthorized and did not affect the Monastery's ownership.
3. Originality of the Works
The Archbishop next asserts that the Works here were not
original, and therefore, not copyrightable.12 See Johnson v.
11
The Monastery points to the Archbishop's undeveloped references
to booklets lacking a copyright notice during the course of this
dispute, but which he contended supported the conclusion of a
publication without notice. The Monastery counters the
Archbishop's argument with a sworn affidavit from the publisher of
St. Nectarios Press stating that the "versions" the Archbishop
references are inaccurate copies of those actually distributed to
the public. Such evidence falls far short of supporting the
conclusion that the Monastery authorized publication without notice
of the underlying Works and relinquished its copyright.
12
The Archbishop brings additional challenges to the Works'
originality. Because these arguments better fall into the
analytical category of whether copying of the Works occurred, we
turn to these points infra.
-27-
Gordon, 409 F.3d 12, 17 (1st Cir. 2005) (to establish ownership of
a valid copyright, a "plaintiff must show that the work, viewed as
a whole, is original"); Lotus, 49 F.3d at 813 (showing ownership of
a true copyright requires that a plaintiff "prove that the work as
a whole is original"). Principally, the Archbishop alleges that
the underlying Works are derivative of other works, that is, they
are merely a commixture of various ancient religious works that had
previously been translated into English, with the Monastery making
only "minor edits," "insignificant changes," or "negligible
additions or subtractions" to the translations it relied upon.
To bolster this argument, the Archbishop proffers
affidavits from a colleague, Bishop John.13 The Bishop's sworn
statements compare various texts to the Works and claim that the
former texts clearly demonstrate the duplicative nature of the
latter. Thus, so the Archbishop postulates, because the
Monastery's translations are nothing more than a nearly identical,
cobbling together of already translated religious texts, the
Monastery cannot claim copyrights to the contested Works.
The Monastery retorts that its translations are both
unique and entitled to copyright protection, citing to the
Copyright Act's express acknowledgment of the copyrightability of
13
According to his sworn affidavit, Bishop John is "a hierarch in
the Genuine Orthodox Church of America," who "was ordained to the
holy priesthood by Metropolitan Valentine, First Hierarch of the
Russian Orthodox Autonomous Church" and "[f]or more than 20
years . . . ha[s] been a student of Orthodox Christianity."
-28-
derivative works. 17 U.S.C. §§ 101, 103. Moreover, it notes that
courts repeatedly have recognized the validity of copyrights to
works that the Monastery claims are comparative to those at issue
here. See, e.g., Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei
Lubavitch, Inc., 312 F.3d 94, 97 (2d Cir. 2002) (citations omitted)
(recognizing copyrightability of translations of religious texts).
The Copyright Act provides that "[c]opyright protection
subsists . . . in original works of authorship." 17 U.S.C. 102(a).
Assessing whether a work is original is a matter of law. Yankee
Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n.5 (1st Cir.
2001). Courts assessing the applicability of the Copyright Act's
protections to allegedly unique works frequently note that the
"originality" bar is set quite low. See, e.g., Feist, 499 U.S. at
345 ("[T]he requisite level of creativity [required to show
originality] is extremely low; even a slight amount will suffice.
The vast majority of works make the grade quite easily, as they
possess some creative spark . . . ."); Universal Furniture Int'l,
Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 430 (4th Cir.
2010) ("Establishing originality implicates only a light burden.").
The Copyright Act makes clear that translations may be
original and copyrightable, despite being derivative of another
product. See 17 U.S.C. § 101 ("A 'derivative work' is a work based
upon one or more preexisting works, such as a
translation . . . ."); id. § 103 ("The subject matter of copyright
-29-
as specified by section 102 includes compilations and derivative
works . . . .") (emphasis added). The originality standard for
such derivative works is, as set forth above, far from a high one.
Specifically, courts have held there is a "'minimal,'" "'low
threshold,'" Original Appalachian Artworks, Inc. v. Toy Loft, Inc.,
684 F.2d 821, 824 (11th Cir. 1982) (quoting Durham Indus., Inc. v.
Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980)), that is "modest at
best," Thomas Wilson & Co. v. Irving J. Dorfman Co., 433 F.2d 409,
411 (2d Cir. 1970), for establishing the originality of a
compilation or derivative work. With this framework in mind, we
have two responses to the Archbishop's argument that the
Monastery's Works cannot be original or copyrightable because they
are composed of an amalgamation of different English translations
of religious texts.
First, the law does not support the Archbishop's argument
that such a derivative work or compilation cannot be copyrightable.
Courts consistently have held that such works may be copyrighted
provided that "there is originality in [the works'] arrangement or
selection." M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 438 (4th
Cir. 1986); see also Apple Barrel Prods., Inc. v. Beard, 730 F.2d
384, 388 (5th Cir. 1984) ("The mere fact that component parts of a
collective work are neither original to the plaintiff nor
copyrightable by the plaintiff does not preclude a determination
that the combination of such component parts as a separate entity
-30-
is both original and copyrightable." (citing 1 Nimmer §§ 3.02,
3.03)). Indeed, in a case that is at least comparable to the
Archbishop's framing of the Monastery's Works, the Seventh Circuit
held that flashcards containing standard, publicly-known
mathematical equations and their solutions were protected under
copyright law because "the arrangement, the plan and the manner in
which [the equations and answers] were put together by the author,
does constitute originality." Gelles-Widmer Co. v. Milton Bradley
Co., 313 F.2d 143, 147 (7th Cir. 1963); see also M. Kramer Mfg.
Co., 783 F.2d at 439 (citing examples of copyrightable compilations
and noting that "[i]n each case the copyright depended on the fact
that the compiler made a contribution - a new arrangement or
presentation of facts - and not on the amount of time the work
consumed").14 Thus, even if the Monastery's translations of the
religious texts may be deemed nothing more than a blend of various
pre-existing English versions, this, in and of itself, does not
make the Monastery's gathering of such texts automatically
unoriginal.
Second, the record does not support the Archbishop's
argument. The only evidence the Archbishop offers to show a lack
of originality in the Works are Bishop John's affidavits, stating
the Works contain "insignificant changes" or "negligible additions
or subtractions" to other sources he has examined, assessed, and
14
Even Bishop John concedes that the Monastery "has expended some
effort in their copyrighted work."
-31-
compared to the Works.15 However, the Monastery examined the same
sources the Bishop attested to having compared with the Works. The
Monastery created a detailed comparison in which it placed its
translations along-side those materials cited by Bishop John, as
well as the Archbishop's translations, effectively demonstrating
notable differences between the Bishop's referenced texts and the
Monastery's (and nearly identical similarities between the
Archbishop's translations and the Monastery's). Although the
comparison shows certain similarities between the Monastery's Works
and those referenced by the Bishop, the differences in the same
reflect a creativity in the Monastery's word usage, structure, and
overall translation. Cf. Feist, 499 U.S. at 345 (stating
"[o]riginality does not signify novelty; a work may be original
even though it closely resembles other works so long as the
similarity is fortuitous, not the result of copying").
It is well-accepted that "[o]riginal, as the term is used
in copyright, means only that the work was independently created by
the author (as opposed to copied from other works), and that it
possesses at least some minimal degree of creativity." Id. at 345
(citing 1 Nimmer §§ 2.01[A],[B]). The evidence in the record
satisfies us that the Monastery has cleared the "extremely low"
15
Bishop John's affidavits do not go into great detail as to the
methodology he utilized to analyze the translations of the
Archbishop's and Monastery's works, its comparison of the latter to
other translations, or the process behind the selection of these
other texts.
-32-
creativity bar. Id. We therefore affirm the district court's
determination that the Monastery's Works were original and thus
copyrightable.
Having concluded our traversal of the ownership prong of
a copyright infringement claim, we proceed to the second prong of
our analysis, i.e., whether copying of the Works occurred.
Situation Mgmt. Sys., 560 F.3d at 58.
B. Copying
A party seeking to establish copying of a work's original
elements must make a dichotomized showing. The copyright holder
first must factually establish, whether via direct or
circumstantial evidence, that the alleged infringer copied the
protected work. Yankee Candle, 259 F.3d at 33. Secondly, the
holder must show that the copying was so flagrantly extreme that
the allegedly infringing and copyrighted works were, for all
intents and purposes, "'substantially similar.'" Id. (quoting
Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir.
2000)); see also Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d 62,
66 (1st Cir. 2009). It is accepted that "[p]roof of '[b]oth
species of copying [is] essential for the plaintiff to prevail.'"
Airframe Sys., 658 F.3d at 106 (quoting 4 Nimmer § 13.01[B], at 13-
10 (2011)) (hereinafter 4 Nimmer). Thus, if a plaintiff cannot
show that factual copying occurred but can show such copying
rendered the works substantially similar, his infringement claim
will fail; likewise, if a plaintiff satisfies the factual copying
-33-
prong, but cannot show that such copying produced a substantially
similar result, denial of his infringement claim will be warranted.
Id. (citing Creations Unltd., Inc. v. McCain, 112 F.3d 814, 816
(5th Cir. 1997); 4 Nimmer § 13.01[B], at 13-10)). We commence our
binary analysis.
1. Actual Copying
Proving actual copying by direct evidence is generally a
difficult task, as it is the rare case in which the specific act of
copying was witnessed, observed, or recorded. See Johnson, 409
F.3d at 18 ("Plagiarists rarely work in the open and direct proof
of actual copying is seldom available."). For this reason, parties
typically rely on circumstantial evidence to prove that the
defendant had access to the protected work and that the resulting
product, when fairly compared to the original, was sufficiently
similar that actual copying may properly be inferred. Concrete
Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st
Cir. 1988) (quoting Atari, Inc. v. N. Am. Philips Consumer Elecs.
Corp., 672 F.2d 607, 614 (7th Cir. 1982)).
We have termed the degree of similarity for purposes of
indirectly adducing evidence of copying, "probative similarity."
Johnson, 409 F.3d at 18; see also Lotus, 49 F.3d at 813 (describing
"probative similarity" as when "the offending and copyrighted works
are so similar that the court may infer that there was factual
copying"). Although similar, this degree of similarity is not to
be confused with the degree that a plaintiff must meet after he has
-34-
established copying -- when he "must show that the 'alleged
infringing work is "substantially similar" to the protected
expression in the copywritten work.'" Yankee Candle, 259 F.3d at33 n.4 (quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir.
1998)); see also 4 Nimmer § 13.03[A], at 13-33 ("Although the term
'substantial similarity' often is invoked as a proxy to prove
copying as a factual proposition, we have seen that the term
'probative similarity' is to be preferred in that context and the
question of 'substantial similarity' arises analytically only
thereafter.").
Here, we have the relatively unique case of both direct
and indirect evidence of copying. See Segrets, 207 F.3d at 61(noting the "somewhat unusual[]" instance in which there is direct
evidence of copying); see also Rogers v. Koons, 960 F.2d 301, 307
(2d Cir. 1992). Specifically, the Archbishop conceded in both his
Answer and in deposition testimony that identical or near-identical
reproductions of the Monastery's Works had been reproduced and
"were available on his Website." Thus, there is no genuine issue
of material fact as to whether the Archbishop reproduced and
displayed exact or near-exact copies of the Monastery's Works.
But lest there be any doubts as to the Archbishop's
concessions, there is ample circumstantial evidence in the record
from which we may infer actual copying. See Coquico, 562 F.3d at
67. As previously stated, the Archbishop admitted to accessing the
Monastery's Works and does not dispute that he has copies of the
-35-
Works at issue in this case. TMTV, Corp. v. Mass Prods., Inc., 645
F.3d 464, 470 (1st Cir. 2011) (actual copying established where
evidence showed, among other factors, that defendant-appellant had
access to protected work). Moreover, a comparison of the Works
with those reproduced on the Archbishop's Website more than
satisfies the "probative similarity" standard, as the texts are
nearly indistinguishable from one another, with only minor textual
differences where such variation exists.16 See Lotus, 49 F.3d at
813; see also Coquico, 562 F.3d at 67 ("What we have called
'probative similarity' can, when accompanied by proof of access,
serve as a harbinger of actual copying . . . ."). This evidence
(access to the protected works coupled with probative similarity)
sufficiently supports the Monastery's claim as to actual copying.
And so, with no doubt as to actual copying, we continue onward in
our similarity study.
2. Substantial Similarity
We traditionally have assessed whether substantial
similarity lies between copyrightable expressions by applying the
"ordinary observer" test. Under this rubric, two works will be
deemed substantially similar if a reasonable ordinary observer, on
examining both, "would be disposed to overlook [the disparities
16
Both below and on appeal, the Monastery has provided detailed
comparisons of the parties' respective versions of the religious
texts. This extensive analysis shows verbatim or near word-for-
word similarities between the Works and the Archbishop's texts.
-36-
between the works], and regard their aesthetic appeal as the same."
Concrete Machinery, 843 F.2d at 607 (quoting Peter Pan Fabrics,
Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)); see
also Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.
1966) (describing ordinary observer test as "whether an average lay
observer would recognize the alleged copy as having been
appropriated from the copyrighted work"). The district court here
applied the ordinary observer test in its two orders. See Holy
Transfiguration II, 754 F. Supp. 2d at 226-27; Holy Transfiguration
I, 685 F. Supp. 2d at 226. It concluded in each that an average
lay observer reviewing the Monastery's Works and the Archbishop's
versions of such would be inclined to overlook any differences
between the texts and consider them to be, for all intents and
purposes, the same. See Holy Transfiguration II, 754 F. Supp. 2d
at 226-27; Holy Transfiguration I, 685 F. Supp. 2d at 226.
The Archbishop now attacks the district court's
utilization of the traditional ordinary observer test. In essence,
he argues that the court should have applied a more differentiating
dissection analysis and isolated the original, or protected,
components of the Works from the remaining elements. Had it done
so, so the argument goes, it would have recognized that the Works
consist of non-copyrightable elements, preventing a finding of
actionable copying.
In general, the Archbishop's overall argument rests on
solid ground: a court's substantial similarity analysis must center
-37-
on a work's original elements. See Coquico, 562 F.3d at 68; see
generally 17 U.S.C. § 103(b). Such examination may require more
than the simple determination that "an overall impression of
similarity" between the contested works as a whole exists.
Johnson, 409 F.3d at 19; see also Yankee Candle, 259 F.3d at 33("The determination of whether an allegedly infringing [work] is
substantially similar to [another work] is not so simple a
task . . . as a strict visual comparison of the two items.").
Typically, to properly conduct this examination, a court must
"dissect[] the copyrighted work and separat[e] its original
expressive elements from its unprotected content," honing in solely
on the unique (and thus protected) components. Coquico, 562 F.3d
at 68; see also Johnson, 409 F.3d at 19 (noting court's
responsibility to examine "juxtaposed works as a whole" and
decipher "'what aspects of the plaintiff's work are protectible
[sic] under copyright laws and whether whatever copying took place
appropriated those [protected] elements.'" (quoting Matthews, 157
F.3d at 27)) (alteration in original). This distillation process
is necessary so as to ensure the purity of the originality that we
are analyzing. See Feist, 499 U.S. at 348 ("The mere fact that a
work is copyrighted does not mean that every element of the work
may be protected."). Indeed, should a work's appearance of
similarity rest upon elements that are not themselves
copyrightable, this will drive a problematic stake through an
infringement claim. See TMTV, 645 F.3d at 470 ("No infringement
-38-
claim lies if the similarity between two works rests necessarily on
non-copyrightable aspects of the original . . . ."); Matthews, 157
F.3d at 27. Our review as to the carved out originality components
of a work is de novo. Coquico, 562 F.3d at 68 ("Appellate review
of the originality vel non of the constituent elements of the
copyrighted work is de novo."); see also CMM Cable, 97 F.3d at 1517("[C]ourts clearly may determine the question
of . . . copyrightability so long as they do so in accord with the
familiar rules governing summary judgment.").
a. Short Phrases
The Archbishop attempts to guide us in the appropriate
textual incisions he asserts are warranted. Specifically, he
argues the district court erred in its comparison of the Works to
the Archbishop's versions; instead of comparing the respective
texts as a whole, the court should have performed the requisite
triage pursuant to which it would have discovered that the only
elements unique to the Works are, at most, "short phrases, single
words, and expressions that are obvious." Because copyright
protection cannot extend to such elements, the Archbishop claims it
likewise cannot extend to the Works.
We are not convinced that the district court's
application of the ordinary observer test here was inappropriate or
that a deeper dissection analysis was warranted. An examination of
each of the district court's orders shows that it considered the
respective works as a whole while also narrowing in on their
-39-
particular textual variations (where present),17 ultimately
concluding that "the slight textual differences between the two
[texts] are insufficient as a matter of law to render the
Archbishop's versions not 'substantially similar' to the infringed
portions of the Works copyrighted by the Monastery." Holy
Transfiguration Monastery II, 754 F. Supp. 2d at 227; see Holy
Transfiguration Monastery I, 685 F. Supp. 2d at 226 (noting the
"minuscule differences" between the respective parties' versions of
the St. Isaac texts "are insufficient as a matter of law to render
the website copy . . . not 'substantially similar' to the version
copyrighted in the St. Isaac Work").
Moreover, while both this court and the Copyright Office
have generally recognized that short phrases may not be subject to
copyrightability, see 37 C.F.R. § 202.1(a) (listing as "works not
17
For instance, the district court noted the following specific
differences in the works' translations:
[R]egarding Psalm 3 of the Psalter Work, the Monastery's
phrasing "without cause" has been replaced by "vainly" in
the Archbishop's corresponding website document. In
addition, there are slight textual differences between
portions of the Monastery's Prayer Book Work and the
corresponding text posted on the Archbishop's website
(e.g., the Archbishop changes "Friend of Man" to "Lover
of man" throughout the document).
Holy Transfiguration Monastery II, 754 F. Supp. 2d at 227 n.5
The Archbishop's copying [of the St. Isaac Work] omitted
footnotes and a total of three words, added a question
mark, and changed the spelling of six words. It also
added six quotation marks, and changed some headings.
Holy Transfiguration Monastery I, 685 F. Supp. 2d at 226 n.13.
-40-
subject to copyright" "[w]ords and short phrases such as names,
titles, and slogans; familiar symbols or designs; mere variations
of typographic ornamentation, lettering or coloring; [and] mere
listing of ingredients or contents"); see also CMM Cable, 97 F.3d
at 1519, applicability of this law very much turns on the specific
short phrases at issue, as not all short phrases will automatically
be deemed uncopyrightable, see CMM Cable, 97 F.3d at 1520 n.20
(acknowledging that "not all short, simple, declarative sentences
fall within the meaning of [37] C.F.R. § 201.1(a)"); Syrus v.
Bennett, 455 F. App'x 806, 809 (10th Cir. 2011) ("[A] short phrase
may command copyright protection if it exhibits sufficient
creativity.") (quoting 1 Nimmer § 2.01[B], at 2-17). As so often
is the case, context matters.18
Here, we have no context to analyze. Aside from brief-
yet-undeveloped citations to relevant case law, the Archbishop
fails to identify -- whether below or on appeal -- the alleged
18
Compare Applied Innovations, Inc. v. Regents of the U. of Minn.,
876 F.2d 626, 635 (8th Cir. 1989) (holding test statements in
copyrighted psychological test sufficiently original to be
copyrightable as derivative works); Salinger v. Random House, Inc.,
811 F.2d 90, 98 (2d Cir. 1987) (noting although ordinary phrases
might not be copyrightable, their "use in a sequence of expressive
words does not cause the entire passage to lose protection") with
ATC Distrib. Grp., Inc. v. Whatever It Takes Transmissions & Parts,
Inc., 402 F.3d 700, 706-10 (6th Cir. 2005) (denying copyright
protection to part numbers and transmission parts catalog partly
because did not show originality required for copyright
protection); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286-
87 (3d Cir. 2004) (similar); Lexmark Int'l, Inc. v. Static Control
Components, Inc., 387 F.3d 522, 541-43 (6th Cir. 2004) (rejecting
copyrightability of toner loading software program and lock-out
code because lacked creativity warranting protection).
-41-
short phrases which he contends are not copyrightable. Judges are
not mindreaders. To properly assess whether the alleged short
phrases are subject to protection, we must know what they are. We
have often admonished counsel that "it is not the job of this court
to do [appellant's] work for him." United States v. Rodríguez, 675
F.3d 48, 59 (1st Cir. 2012); United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990). In contrast to the cases to which appellant
cites, which specifically reference the contested short phrases and
thoroughly explain why those are or are not subject to copyright
protection, the Archbishop has left us to sift through the parties'
respective translations and weed out the alleged short phrases that
he contends represent the only original (yet not copyrightable)
portions of the Works.
Left alone with a plethora of ancient religious texts and
phrases, we cannot properly know those phrases the Archbishop wants
us to touch versus those we should not. And we need not so
decipher on our own. We thus deem the Archbishop's dissection
argument as to the copyrightability of the Works waived.
Rodríguez, 675 F.3d at 59; Zannino, 895 F.2d at 17.
b. Merger Doctrine
The Archbishop raises an additional challenge to the
copyrightability of the Works and the district court's
determination as to his liability for infringement. He argues that
because there are only a limited number of ways by which the Works
at issue could have been translated, the Works consist of non-
-42-
copyrightable ideas that have merged with expression, preventing
the final product from being copyrightable. Best described as a
reliance on the merger doctrine, we unfurl the Archbishop's
argument.
It is accepted that "[t]he merger doctrine denies
copyright protection when creativity merges with reality; that is,
when there is only one way to express a particular idea." Coquico,
562 F.3d at 68; see also Merkos, 312 F.3d at 99. Thus, the merger
doctrine will, where applicable, prevent copyright protection to a
work; this is so because
[w]hen there is essentially only one way to
express an idea, the idea and its expression
are inseparable and copyright is no bar to
copying that expression. [Even] [w]hen the
idea and its expression are not completely
inseparable, there may still be only a limited
number of ways of expressing the idea.
Yankee Candle, 259 F.3d at 36 (quoting Concrete Machinery, 843 F.2d
at 606) (second and third alterations in original). Conversely, if
a work consists of a more specialized expression, "it moves further
away from [merger of idea and expression] and receives broader
copyright protection." Concrete Machinery, 843 F.2d at 607(quoting Atari, 672 F.2d at 617) (alteration in original) (internal
quotation mark omitted).
The Archbishop claims the Monastery's Works fall on the
former end of this spectrum because there were only a limited
number of manners by which the Works (originally in ancient Greek)
could be translated into English. Thus (so we presume the argument
-43-
goes, as the Archbishop does not clearly articulate as such), the
expression of these once ancient Greek texts effectively merged
with the (unstated) idea because the resulting translations were
essentially the only viable interpretations that could result from
an English-rendition of the ancient Greek works.
Yet again, the Archbishop leaves us in the dark as to
what idea(s) he claims has, for all intents and purposes, merged
with expression such that copyrightability may not attach. On a
more basic note, though, lies the essence of this dispute: we are
dealing here with translations, and "the art of translation
involves choices among many possible means of expressing ideas,"
making the merger doctrine "inapposite to the context presented
here." Merkos, 312 F.3d at 99; see also id. at 97 ("The
translation process requires exercise of careful literary and
scholarly judgment."). We thus reject the Archbishop's merger
argument and affirm the district court's well-supported finding as
to the respective texts' substantial similarity.
c. Comparing the Texts
The district court carefully compared each of the
allegedly infringing texts with the Monastery's Works. On
reviewing detailed, side-by-side comparisons of the texts, and
specifically noting those sections in which slight variations in
the texts were present, it found that no reasonable juror could
conclude the Archbishop's versions were not "substantially similar"
-44-
to the Works. See Holy Transfiguration II, 754 F. Supp. 2d at 227
& n.4, n.5; Holy Transfiguration I, 685 F. Supp. 2d at 226 & n.13.
Our independent review of the Works and the Archbishop's
translations confirms the district court's ruling. We agree that
the Archbishop's translations are, as a matter of law,
substantially similar to the Monastery's Works where his versions
differed -- if at all -- only in minor textual variations that
would likely cause the ordinary observer to overlook the subtle
discrepancies and deem the texts essentially indistinguishable.
See Johnson, 409 F.3d at 18; Matthews, 157 F.3d at 28 (substantial
similarity requires "the disregard of minor differences in favor of
major similarity").
The Monastery having established both elements of an
infringement claim -- i.e., actual copying and actionable copying
-- we echo the district court's determination that the Archbishop
copied the Works. We thus affirm the district court's grant of
summary judgment to the Monastery as to copyright infringement of
the Works. See Johnson, 409 F.3d at 18; Yankee Candle, 259 F.3d at
37 ("Although summary judgment is often inappropriate on the
question of substantial similarity, where reasonable minds cannot
differ, summary judgment is appropriate.") (internal citations
omitted).
C. Defenses
-45-
The Archbishop next argues that even if we determine
copyright infringement occurred, he should not be held liable for
such transgressions. The Archbishop brings four principal
defenses: (1) the copyright claim was for direct infringement, and
because the Archbishop was not the specific individual responsible
for uploading the translations at issue, he may not be held liable
for infringement; (2) the Archbishop is immune from liability under
the 1998 Digital Millennium Copyright Act ("DMCA"), 17 U.S.C.
§§ 101, et seq. or other applicable law; (3) the Archbishop's
reproductions of the Works constituted fair use; and (4) the
Monastery misused its copyright, thereby preventing it from
litigating a copyright infringement claim. We address each
seriatim.
1. Direct Infringement Defense
The Monastery contends the Archbishop violated its
exclusive right to display the Works. It specifically directs us
to the Archbishop's statement in his Answer, conceding that copies
of the Works "were available on his website." The Archbishop
counters that he may not be held liable for direct copyright
infringement because he "is not the person who posted the disputed
Works on the website." Relying on Sony Corp. of Am. v. Universal
City Studios, Inc., he argues that only the one who "trespasses
into [the copyright holder's] exclusive domain" constitutes a
direct infringer of a copyright; because he himself did not
-46-
volitionally copy or post the Works to the Website, liability may
not attach to him. Sony, 464 U.S. 417, 433 (1984). We disagree
with the Archbishop's position.
As set forth above, the Monastery is the owner of the
copyrights at issue. See supra at Part II.A. By virtue of its
ownership, it holds certain exclusive rights, including the right
to perform or authorize reproduction of the Works, to prepare
derivatives of the Works, to distribute copies to the public, or to
publicly display the Works. See 17 U.S.C. § 106; see also Cartoon
Network LLP v. CSC Holdings, Inc., 536 F.3d 121, 126 (2d Cir. 2008)
(stating "[s]ection 106 of the Copyright Act grants copyright
holders a bundle of exclusive rights" (quoting Bill Graham Archives
v. Dorling Kindersley Ltd., 448 F.3d 605, 607 (2d Cir. 2006))
(internal quotation marks omitted). An infringer of a copyright is
thus "[a]nyone who violates any of the exclusive rights of the
copyright owner as provided by section[] 106." 17 U.S.C. § 501(a).
The specific exclusive right at issue here is the Monastery's right
to display its Works. We turn to the Copyright Act itself for
guidance.
Section 101 of the Copyright Act defines "copies" as
"material objects . . . in which a work is fixed by any
method . . . and from which the work can be perceived, reproduced,
or otherwise communicated . . . ." 17 U.S.C. § 101. A work is
"'fixed' in a tangible medium of expression when its
-47-
embodiment . . . is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a period
of more than transitory duration." Id. A "display" of a work is
defined under the Act as "show[ing] a copy of [a work], either
directly or by means of a film, slide, television image, or any
other device or process." 17 U.S.C. § 101. Applying these
definitions to the facts, we draw the following conclusions.
Here, the Archbishop's verbatim or near-identical
versions of the Works constituted a "copy" under the Copyright Act.
The translation images were embodied in a medium (here, the
computer server and internet) where they could be perceived by,
electronically communicated to, and/or reproduced by those who
accessed the server. See 17 U.S.C. § 101.
The copies also were embodied or "'fixed' in a tangible
medium of expression," as they were loaded on the Archbishop's
computer server and posted to his Website. Id.; see Cartoon
Network, 536 F.3d at 129 (to determine whether a work is "fixed" in
a medium, court must examine whether the work is "embodied" in the
medium); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160
(9th Cir. 2007) (citing MAI Sys. Corp. v. Peak Computer, Inc., 991
F.2d 511, 517-18 (9th Cir. 1993) and noting that "a computer makes
a 'copy' of a software program when it transfers the program from
a third party's computer (or other storage device) into its own
memory, because the copy of the program recorded in the computer is
-48-
'fixed' in a manner that is 'sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise communicated
for a period of more than transitory duration'" (quoting 17 U.S.C.
§ 101)). The copies likewise satisfy the statute's "transitory
duration" requirement, as they were continuously displayed on the
Archbishop's Website. See 17 U.S.C. § 101; see also Cartoon
Network, 536 F.3d at 129-30 (discussing meaning of Copyright Act's
"transitory duration" requirement). Before the Monastery served
the Archbishop with the Complaint in January 2008, the St. Isaac
Work had been posted on the Website continuously since 2005, and
the remaining six Works, since August 2007.
Lastly, the Archbishop "display[ed]" the Works publicly
-- that is, he "show[ed] a copy of" the Works "by means of a . . .
device or process," 17 U.S.C. § 101 -- when he posted the Works on
his website. Although the question of whether a computer has
"displayed" a copyrighted work may be a difficult one in other
contexts, see, e.g., Perfect 10, 508 F.3d at 1160-62, it is beyond
question here that the Archbishop has "displayed" the Works on his
website. We need not delineate the outer bounds of the scope of
the term "display" where, as here, the fact that the Works were
"displayed" on the Archbishop's website is undisputed.
The Archbishop asks us to overlook the fact that images
of the Works were displayed via his computer, and instead, focus on
whether he was the specific individual who so electronically placed
-49-
the images on the Website. He argues that because he himself did
not personally engage or participate in any of the volitional
display acts that infringed upon the Monastery's exclusive rights,
he should not be held liable.
The Archbishop's "volitional act" position is not a novel
one; it is an argument that has been raised -- with varying degrees
of success -- in our sister circuits. See, e.g., Quantum Sys.
Integrators, Inc. v. Sprint, 338 F. App'x 329, 335-36 (4th Cir.
2009); Cartoon Network, 536 F.3d at 131-32; Parker v. Google, Inc.,
242 F. App'x 833, 836-37 (3d Cir. 2007); CoStar Grp., Inc. v.
LoopNet, Inc., 373 F.3d 544, 549-51 (4th Cir. 2004). We need not
determine whether a volitional act must be shown to establish
direct copyright infringement because, regardless of such a
holding, the Monastery here still prevails.
Contrary to the Archbishop's contention that he did not
engage in infringing acts, the record makes clear that he performed
several acts to ensure that copies of the Works were available on
his server and posted to his Website. First, the Archbishop was
the registered owner of the domain name, "trueorthodoxy.info,"
i.e., the Website. Second, during deposition testimony the
Archbishop "admit[ted] he bears responsibility for and has
authority over the content that appears on the [w]ebsite." In
fact, he expressly stated:
Q. Are you familiar with the website
trueorthodoxy.info?
-50-
A. Yes, somewhat.
Q. Who owns that website?
A. I do.
* * *
Q. [Referring to one of the Archbishop's
sworn affidavits] Where you say that the
website trueorthodoxy.info is registered to
you.
A. Yes.
Q. That's accurate?
A. Yes.
Q. And also . . . that you are responsible
for the content of the website.
A. Yes.
Q. And that's accurate?
A. Yes.
* * *
Q. Who selects the content that appears on
the website?
A. I, normally.
(Emphasis added.)
Third, at deposition the Archbishop conceded his active
involvement in the posting of materials to the server for public
access:
Q: Did you -- did you yourself actually
place content on the website?
-51-
A. No.
Q. Who did?
A. Father Peter.
Q. Did you supervise him in doing that?
A. To some extent, yes.
Q. How did you supervise him?
A. If there's something I liked, I had him
put it up.
Q. So you brought things . . .
A. I chose what goes up.
* * *
Q. [H]ave you been responsible for the
content of the website since the inception?
A. Yes.
Q. Okay. And you're still responsible for
the content now?
A. Yes.
(Emphasis added.)
Fourth, the Archbishop confirmed he knew Father Peter
generally was uploading religious services to the Website and that
he expressly authorized him to do so. Indeed, the Archbishop
appears to believe that this final point, in and of itself, will
save him from liability. It does not.
A review of the record makes clear that Father Peter
acted as the Archbishop's agent in both building and handling the
technical aspects of the Website. Established law confirms that
-52-
agency principles may apply in the copyright context, see, e.g.,
Metcalf v. Bochco, 294 F.3d 1069, 1072-73 (9th Cir. 2002); see also
d'Abrera v. U.S., 78 Fed. Cl. 51, 59 (Fed. Cl. 2007), and that a
principal (here, the Archbishop) may be held liable for the
authorized acts of its agent (here, Father Peter). See Restatement
(Third) of Agency § 1.01 (2006).
The record confirms that the Archbishop held authority
and control over the Website, and that he knew of and assented to
Father Peter's postings of religious texts to the site.
Furthermore, Father Peter's postings to the site clearly fell
within his actual authority because he knew of the Archbishop's
overall goal of "shar[ing] information about the Orthodox Christian
religion with users of the internet," and the materials he posted
fell within this ambit. See id. § 2.01 (defining actual authority
as "when, at the time of taking action that has legal consequences
for the principal, the agent reasonably believes, in accordance
with the principal's manifestations to the agent, that the
principal wishes the agent to so act."). For these reasons, the
Archbishop's attempt to shift the blame onto Father Peter --
because the latter personally performed acts of unauthorized
copying -- fails. See Restatement (Third) of Agency § 7.04 ("A
principal is subject to liability to a third party harmed by an
agent's conduct when the agent's conduct is within the scope of the
agent's actual authority or ratified by the principal; and (1) the
-53-
agent's conduct is tortious, or (2) the agent's conduct, if that of
the principal, would subject the principal to tort liability.").
The law on which the Archbishop relies concerning direct
infringement liability is equally unpersuasive. Although the
Archbishop contends the Supreme Court's decision in Sony supports
his postulation that a showing of personal involvement in the
alleged infringement is required, a close reading of the case shows
otherwise. The Supreme Court clearly defined an infringer as
"'[a]nyone who violates any of the exclusive rights of the
copyright owner,' that is, anyone who trespasses into his exclusive
domain by using or authorizing the use of the copyrighted work in
one of the [statute's listed exclusive rights]." Sony, 464 U.S. at
433 (quoting 17 U.S.C. § 501(a)) (emphasis added). It also noted
that an infringer is "not merely one who uses a work without
authorization by the copyright owner, but also one who authorizes
the use of the copyrighted work without actual authority from the
copyright owner." Id. at 435 n.17 (emphasis added). Here, the
Archbishop repeatedly confirmed his responsibility for and control
over the Website, as well as his express authorization to Father
Peter to engage in acts that would violate the Monastery's display
right.
On careful consideration of this evidence and relevant
precedent, we conclude that -- regardless of whether the law
mandates a showing of volitional conduct to establish direct
-54-
infringement -- 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.19
See generally Screen Gems-Columbia Music, Inc. v. Metlis & Lebow
Corp., 453 F.2d 552, 554 (2d Cir. 1972) ("[C]opyright infringement
19
The Archbishop additionally points to the Fourth Circuit's
decision in CoStar Group as authority for his claim that he cannot
be held liable because he, himself, did not personally post the
disputed material to the site. His position is inapposite. Costar
Group provides that "ISPs, when passively storing material at the
direction of users in order to make that material available to
other users upon their request, do not 'copy' the material in
direct violation of § 106 of the Copyright Act," and that "the
automatic copying, storage, and transmission of copyrighted
materials . . . does not render an ISP strictly liable for
copyright infringement." CoStar Group, 373 F.3d at 555 (emphasis
added). The Archbishop here, however, can hardly be described as
a passive conduit who unconsciously and mechanically loaded the
images onto his computer and made them available on the Website.
Cf. Quantum Sys. Integrators, 338 F. App'x at 336; CoStar Group,
373 F.3d at 558 (Gregory, J., dissenting) (citing cases and noting
"the non-volitional defense to direct infringement claims extends
only to 'passive' service providers, through which data flow is
'automatic'").
Moreover, the Fourth Circuit subsequently limited its CoStar
holding in Quantum, stating the appellant in that case (challenging
the lower court's finding of infringement) "overstate[d] the
'volitional' requirement purportedly established by CoStar" because
the latter concerned passive conduct "typically engaged in by an
ISP," and the acts at issue in Quantum were of a more active,
volitional, and controlled nature. Quantum, 338 F. App'x at 336
(internal citation and quotation mark omitted). Other courts
similarly have noted the distinction between active, volitional
involvement in infringement versus passive, mechanical, or habitual
actions that produce an infringing result, the latter of which
generally have been held not to trigger direct infringement
liability. See, e.g., Cartoon Network, 536 F.3d at 131; see also
ALS Scan, Inc. v. RemarQ Cmty., Inc., 239 F.3d 619, 621-22 (4th
Cir. 2001); Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp.
543, 552-53 (N.D. Tex. 1997); Marobie-Fl, Inc. v. Nat'l Ass'n of
Fire & Equip. Distribs., 983 F. Supp. 1167, 1176-79 (N.D. Ill.
1997).
-55-
is in the nature of a tort, for which all who participate in the
infringement are jointly and severally liable."); Shapiro,
Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.
1963).20
2. Digital Millennium Copyright Act Defense
The Archbishop next raises an argument concerning the
DMCA, which provides a safe harbor of immunity for certain service
providers. See 17 U.S.C. § 512. To begin with, the Archbishop
does not expressly assert a defense under the DMCA itself. Even if
he were to have done so, however, any such defense would have been
unavailing.
As the district court noted, the Archbishop failed to
raise an affirmative defense pursuant to the DMCA in his pleadings.
Holy Transfiguration II, 754 F. Supp. 2d at 228-29. The law is
clear that if an affirmative defense is not pleaded pursuant to
Fed. R. Civ. P. 8(c)'s requirements, it is waived. See Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st
Cir. 1994) (noting Rule 8(c)'s affirmative defense pleading
20
Because we conclude the Archbishop is liable for direct
infringement, we need not address his arguments as to why (despite
the Monastery's not raising such a claim) secondary liability
cannot attach. See Ortiz-González v. Fonovisa, 277 F.3d 59, 62
(1st Cir. 2002) (noting distinction between direct infringement
versus contributory or vicarious infringement, and concluding act
of infringement was only direct and did not trigger secondary
liability); see also Dream Games of Az., Inc. v. PC Onsite, 561
F.3d 983, 995 (9th Cir. 2009) (holding that theory of secondary
liability not raised below cannot be raised on appeal).
-56-
requirement and stating "[a]ffirmative defenses not so pleaded are
waived"). Although this rule is not absolute, see Conjugal P'ship
v. Conjugal P'ship, 22 F.3d 391, 400 (1st Cir. 1994), no grounds as
have been recognized for its relaxation are present here. See,
e.g., id. at 400-01 ("One sign of implied consent is that issues
not raised by the pleadings are presented and argued without proper
objection by opposing counsel." (quoting Matter of Prescott, 805
F.2d 719, 725 (7th Cir. 1986) (internal quotation marks omitted));
Law v. Ernst & Young, 956 F.2d 364, 375 (1st Cir. 1992) (citing
Lynch v. Dukakis, 719 F.2d 504, 508 (1st Cir. 1983)) (noting
implied consent lies where opposing party produced evidence as to
affirmative defense or failed to object to the introduction of the
same). We thus likewise deem any such defense waived.21
Instead of expressly asserting such a defense, the
Archbishop argues the DMCA "did not supplant law," directing us to
Ninth Circuit precedent in which that court stated the DMCA's
limitations of liability provisions did not substantially change
"[c]laims against service providers for direct, contributory, or
vicarious copyright infringement," which are "generally evaluated
just as they would be in the non-online world." Ellison v.
Robertson, 357 F.3d 1072, 1077 (9th Cir. 2004); see also Perfect
21
We moreover question whether any such defense, even if asserted,
holds any merit. The Archbishop likely would not qualify as an ISP
under the DMCA's express provisions, see 17 U.S.C. § 512(k), and
even if he did, he has not complied with the specific criteria
necessary for an ISP to receive the protections of the DMCA's safe
harbor provisions. See 17 U.S.C. 512(c)(1).
-57-
10, 481 F.3d at 758 (DCMA's "safe harbors limit liability but 'do
not affect the question of ultimate liability under the various
doctrines of direct, vicarious, and contributory
liability'"(quoting Perfect 10, Inc. v. Cybernet Ventures, Inc.,
213 F. Supp. 2d 1146, 1174 (C.D. Cal. 2002))). In essence, the
Archbishop seems to remold his prior direct infringement claim to
argue that even if he does not fall under DMCA's safe harbor
provisions, his "passive involvement" in the alleged acts of
infringement is not sufficient to trigger secondary liability, and
by extension, direct liability. For the reasons previously set
forth, we reject the Archbishop's contention that his authority for
and control over the Website, or his express authorization and
supervision of Father Peter's postings may be deemed such a level
of "passive involvement" that no form of liability may attach to
his actions.
3. Fair Use Defense
The Archbishop attempts to carry his evidentiary burden
as to another defense, claiming his reproductions of the Works
constitute fair use. See Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 590 (1994) (stating "fair use is an affirmative defense"
for which its proponent bears the burden). Fair use "creates a
privilege for others to use the copyrighted material in a
reasonable manner despite the lack of the owner's consent."
Weissmann v. Freeman, 868 F.2d 1313, 1323 (2d Cir. 1989).
-58-
Specifically, the doctrine serves to mediate "the inevitable
tension between the property rights" lying in creative works "and
the ability of authors, artists, and the rest of us to express
them," providing a degree of protection to each where merited.
Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006).
The Copyright Act codifies the fair use doctrine and
breaks it into four factors that a court must weigh in assessing
whether use of a work is fair or infringing. See 17 U.S.C. § 107(listing the purpose and character of a work's use, the nature of
the copied work, the extent of the copying, and its effect on a
work's market value). When performing such weighing, a court
should carefully balance the relevant interests and apply "an
equitable rule of reason," as "each case raising the question must
be decided on its own facts." H.R. Rep. No. 1476, at 65 (1976),
reprinted in, 1976 U.S.C.C.A.N. 5659, 5679; see also Sony, 464 U.S.
at 448-49. Here, we have sufficient facts before us with which to
assess fair use as a matter of law; we accordingly arrange our
scales and begin the weighing process. See Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)
(stating "an appellate court . . . may conclude as a matter of law
that the challenged use does not qualify as a fair use of the
copyrighted work") (alterations omitted) (internal quotation mark
omitted).
a. Purpose and Character of the Use
-59-
The first factor we must consider is "the purpose and
character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes." 17 U.S.C.
§ 107(1). Our task under the first prong is to assess "whether and
to what extent the new work is 'transformative,'" that is, "whether
the new work merely supersedes the objects of the original
creation" or whether it "adds something new, with a further purpose
or different character, altering the first with new expression,
meaning, or message." Campbell, 510 U.S. at 579 (internal
citations and quotation marks omitted); see also Folsom v. Marsh,
9 F. Cas. 342, 345 (No. 4,901) (C.C.D. Mass. 1841) (Story, J.)
(stating for a work to be transformative "[t]here must be real,
substantial condensation of the materials, and intellectual labor
and judgment bestowed thereon; and not merely the facile use of the
scissors; or extracts of the essential parts, constituting the
chief value of the original work").
The Archbishop posits that his use of the Monastery's
Works was "productive" because his goal was educational, i.e., to
allow Orthodox Christians to sample and learn from the Works'
teachings on the Orthodox faith. Because he held no commercial
purpose in his use of the Works, the Archbishop contends we should
find the first prong to be in his favor. Notably, the Archbishop
seems to concede that his use of the Works might not have been
transformative per se, but contends nonetheless that "a work need
-60-
not be transformative to be fair;" because his use was productive,
we should find in his favor as to "purpose and character of use."
The Monastery counters that the Archbishop's use cannot
be deemed transformative because his versions simply supplanted the
original Works' purpose (also of a religious educational nature)
and failed to make any new or creative point. Additionally, the
Monastery rejects the Archbishop's contention that his use cannot
be deemed commercial. It argues that because the Archbishop has
repeatedly infringed the Works (which were expensive to create)
free of cost, he has profited in his alleged use to educate others
and benefitted from others' interest in his versions.
Regarding the "transformative" or "productive" nature of
the Archbishop's versions, the Archbishop is correct that
"transformative use is not absolutely necessary for a finding of
fair use." Campbell, 510 U.S. at 579. However, copyright's goal
of "promot[ing] science and the arts, is generally furthered by the
creation of transformative works," and the law is clear that the
lesser the transformative nature of the work, the greater the
significance of those factors that may weigh against a finding of
fair use. Id.The Archbishop's translations are not transformative. A
review of his works reflects minimal "intellectual labor and
judgment." Folsom, 9 F. Cas. at 345. The versions are essentially
verbatim or near-verbatim copies of the Works, with only minuscule
-61-
alterations of "expression, meaning, or message." Campbell, 510
U.S. at 579. Moreover, the Archbishop's translations hold the same
purpose and benefit as the original Works, i.e., to further
religious practice and education. They thus "merely supersede[]
the object[] of the original" Works. Id.; see also Worldwide
Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117
(9th Cir. 2000); cf. Núñez v. Caribbean Int'l News Corp., 235 F.3d
18, 23 (1st Cir. 2000) (holding that combining photographs with
editorial commentary created a new use for the works). Courts have
admonished that where a copy's "use is for the same intrinsic
purpose [as the copyright holder's] . . . such use seriously
weakens a claimed fair use;" we find the same debilitating effect
on the Archbishop's claim to be true here. Weissmann, 868 F.2d at
1324; see also Am. Geophys. Union v. Texaco, Inc., 60 F.3d 913, 923
(2d Cir. 1995) (stating "[t]o the extent that the secondary [work]
involves merely an untransformed duplication, the value generated
by the secondary [work] is little or nothing more than the value
that inheres in the original. . . . [T]hereby providing limited
justification for a finding of fair use").
The Archbishop contends the first factor still favors a
finding of fair use because any copying he did was not for
commercial gain. But removing money from the equation does not,
under copyright law, remove liability for transgressing another's
works. The Supreme Court has held that "the mere fact that a use
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is educational and not for profit does not insulate it from a
finding of infringement." Campbell, 510 U.S. at 584; see also
Sony, 464 U.S. at 450 ("Even copying for noncommercial purposes may
impair the copyright holder's ability to obtain the rewards that
Congress intended him to have."). In effect, the commercial-
noncommercial distinction the law draws centers not on whether a
user intends to line his own pockets, but rather on "whether the
user stands to profit from exploitation of the copyrighted material
without paying the customary price." Harper & Row, 471 U.S. at
562. "Profit," in this context, is thus not limited simply to
dollars and coins; instead, it encompasses other non-monetary
calculable benefits or advantages. See Worldwide Church, 227 F.3d
at 1117; Weissmann, 868 F.2d at 1324) ("The absence of a dollars
and cents profit does not inevitably lead to a finding of fair
use."); see also Webster's II New Riverside University Dictionary
939 (1984) (defining the term "profit" as an "advantageous gain or
return").
Applying this framework, we agree with the Monastery that
the Archbishop "profited" from his use of the Works. Regardless of
whether the Archbishop's versions generated actual financial income
for himself or the Dormition Skete, he benefitted by being able to
provide, free of cost,22 the core text of the Works to members of
22
At deposition, the Archbishop acknowledged his awareness of the
costs he was saving himself by not purchasing the Monastery's
Works, stating "[y]es, $120 per book [containing one of the Works].
Now you know why we don't buy their works."
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the Orthodox faith, and by standing to gain at least some
recognition within the Orthodox religious community for providing
electronic access to identical or almost-identical English
translations of these ancient Greek texts. For these reasons, we
conclude that as to the first factor, the scales tip in the
Monastery's favor.
b. Nature of the Copyrighted Work
The second statutory factor, "the nature of the
copyrighted work," 17 U.S.C. § 107(2), requires us to consider two
elements: (1) whether the Monastery's Works are factual or
creative, see Harper & Row, 471 U.S. at 563, and (2) whether the
Works have previously been published, Núñez, 235 F.3d at 23. Here,
due to its brief nature, the last factor shall be first.
When interpreting the copyright laws, courts commonly
have recognized an author's power to control whether, when, and how
to release his material. Harper & Row, 471 U.S. at 564. For this
reason, an author's right to control first publication of his
expression will weigh against another's use of the author's work
before its dissemination. See id. ("[T]he scope of fair use is
narrower with respect to unpublished works."). Here, it is
uncontested that certain of the Works are unpublished
(specifically, the Octoechos, Dismissal Hymns, and Pentecostarion).
It also is undisputed that the Monastery took steps to protect
these Works, registering them with the Copyright Office. Cf.
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Núñez, 235 F.3d at 24 (noting author's failure to control
photographs' distribution by referencing, among other factors,
their lack of copyright registration). And so, at least as to
these Works, the Archbishop effectively commandeered the
Monastery's control over if, when, and how any such release of
these Works to the public would take place.
However, the Monastery's remaining Works were published,
reducing -- to some extent -- concerns as to the Archbishop's
unilateral publication of versions of them. But that does not tip
the fair use balance in favor of the Archbishop, even with respect
to the previously published Works. See generally Fitzgerald v. CBS
Broad., Inc., 491 F. Supp. 2d 177, 187 (D. Mass. 2007) (fact that
photographs had been published before CBS's use of them "does not
mean that this inquiry weighs in favor of fair use, only that [the]
photographs do not fall into the category of private works to which
the doctrine of fair use is especially unsuited"). We proceed to
the second inquiry.
We believe the Works here fall closer to the creative end
of the copyright spectrum than the informational or factual end.
See Worldwide Church, 227 F.3d at 1118. The Works reflected
creativity, imagination, and originality in their language,
structure, word choice, and overall textual translation. See 17
U.S.C. §§ 101, 102 (establishing Copyright Act's protection for
translations of preexisting works); Feist, 499 U.S. at 345-46
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(noting low bar for establishing creativity of a copyrightable
work); Merkos, 312 F.3d at 97 (holding English translation of
Hebrew prayerbook as sufficiently original to be copyrightable).
We conclude that the scales lean away from the Archbishop's
contention of fair use as to this second factor.
c. Amount and Substantiality of the Use
The third factor requires us to consider "the amount and
substantiality of the portion used in relation to the copyrighted
work as a whole." 17 U.S.C. § 107(3); see Campbell, 510 U.S. at
586-87. Our inquiry here is pliable and not affixed by cold
calculations of the percentage of a work used versus unused. See
Harper & Row, 471 U.S. at 565-67 (emphasizing significance rather
than quantity of material copied); Núñez, 235 F.3d at 24. However,
even though "'wholesale copying does not preclude fair use per se,'
copying an entire work '[generally will] militate[] against a
finding of fair use.'" Worldwide Church, 227 F.3d at 1118 (quoting
Hustler Magazine Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155
(9th Cir. 1986)); see also Rogers, 960 F.2d at 311 ("It is not fair
use when more of the original is copied than necessary.").
The Archbishop attempts to narrow our focus to the fact
that the copying he did of the St. Isaac work (specifically, Homily
46) is only "one of seventy-seven homilies in the St. Isaac work,"
which is only "3 pages in a work that in [sic] 568 pages or
approximately a half percent of the entire work," and that his use
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as to the remaining Works only consisted of postings of small
portions of the texts. Our focus, however, is not so limited. See
Núñez, 235 F.3d at 24 (noting inquiry as to amount and
substantiality of a work's use "must be a flexible one, rather than
a simple determination of the percentage used"); see also Campbell,
510 U.S. at 586-89 (treating a single song from an album as a whole
work for purposes of fair use analysis); Hustler Magazine, 796 F.2d
at 1154-55 (deeming 300-word parody a complete work even though
part of 154-page magazine; stating "[a] creative work does not
deserve less copyright protection just because it is part of a
composite work").
Lifting our eyes to the full extent of the Archbishop's
use, we see that he made identical or near-verbatim copies of the
Works -- themselves parts of greater texts, but which alone may be
qualitatively significant. See Harper & Row, 471 U.S. at 564-66(use of quotations constituting 300 words of President Ford's
entire memoirs amounted to copying of "the heart of the book" that
weighed against fair use); Roy Exp. Co. Establishment of Vaduz,
Liechtenstein, Black Inc., A.G. v. Columbia Broad. Sys., Inc.,
503 F. Supp. 1137, 1145 (S.D.N.Y. 1980) (use of approximately one
to two minutes from hour-plus long films "quantitatively" and
"qualitatively" substantial). Thus, the Archbishop's pleas for us
to acknowledge how much of the Works he did not copy are
unavailing. See Harper & Row, 471 U.S. at 565 ("'[N]o plagiarist
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can excuse the wrong by showing how much of his work he did not
pirate.'" (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d
49, 56 (2d Cir. 1936)).
Courts have cut both ways as to the fair use of verbatim
copying. Compare Sony, 464 U.S. at 449-50 (holding identical
copying of videotapes under unique circumstances of case "[did] not
have its ordinary effect of militating against a finding of fair
use"); Núñez, 235 F.3d at 24 (finding newspaper's complete copying
of a photograph to be "of little consequence" because "to copy any
less . . . would have made the picture useless to the story"); with
Harper & Row, 471 U.S. at 565 ("[T]he fact that a substantial
portion of the infringing work was copied verbatim is evidence of
the qualitative value of the copied material, both to the
originator and to the plagiarist who seeks to profit from marketing
someone else's copyrighted expression."); Worldwide Church,
227 F.3d at 1118-19 (rejecting argument that verbatim copying of
religious text was reasonable simply because use was religious in
nature); Wihtol v. Crow, 309 F.2d 777, 780 (8th Cir. 1962) (where
defendant inserted identical copy of plaintiff's original piano and
solo voice composition into his choir arrangement, court held
"[w]hatever may be the breadth of the doctrine of 'fair use,' it is
not conceivable to us that the copying of all, or substantially
all, of a copyrighted song can be held to be a 'fair use' merely
because the infringer had no intent to infringe").
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A telling factor in conducting this analysis is "the
purpose and character of the use," as "[c]opying does not become
excessive . . . merely because the portion taken was the original's
heart." Campbell, 510 U.S. at 586-88; see also Castle Rock Entm't,
Inc. v. Carol Publ'g, 150 F.3d 132, 144 (2d Cir. 1998) (noting
importance of considering context to determine whether copying is
"consistent with or more than necessary to further 'the purpose and
character of the use'" (quoting Campbell, 510 U.S. at 586-87)).
Here, the Archbishop's copying is for the same purpose for which
the Monastery uses its Works -- for religious education and
devotional practice. Because the Archbishop's use here was "for
the same intrinsic purpose for which [the Monastery] intended it to
be used," this third factor weighs against his contention of fair
use. Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983); see
also Worldwide Church, 227 F.3d at 1118 (holding fact that
plaintiff-infringer used verbatim copy of religious text for same
purpose as defendant-owner weighed against finding of fair use as
to third factor).
d. Effect on the Market
The fourth and final factor addresses "the effect of the
use upon the potential market for or value of the copyrighted
work." 17 U.S.C. § 107(4). Considered "the single most important
element of fair use," Harper & Row, 471 U.S. at 566, this factor
requires us to consider both (1) the degree of market harm caused
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by the alleged infringer's actions, and (2) "whether unrestricted
and widespread conduct of the sort engaged in by the
defendant . . . would result in a substantially adverse impact on
the potential market for the original." Campbell, 510 U.S. at 590(internal quotation marks and citation omitted).
As to the degree of market harm, the Archbishop argues
that the Monastery has not shown specific lost sales or profits as
a result of the alleged infringement. But the fourth factor of the
fair use inquiry cannot be reduced to strictly monetary terms.
Statutory law expressly states that it considers not only the
impact of a work's use on the potential market, but also its effect
on the "value of the copyrighted work." 17 U.S.C. § 107(4)
(emphasis added). Indeed, "[e]ven copying for noncommercial
purposes may impair the copyright holder's ability to obtain the
rewards that Congress intended him to have." Sony, 464 U.S. at
450.23 Thus, the Copyright Act looks beyond monetary or commercial
value and considers other forms of compensation for a work. See
id. at 447 n.28 (explaining that compensation for copyright may
take different forms because "copyright law does not require a
copyright owner to charge a fee for the use of his works;" noting
"the owner of a copyright may well have economic or noneconomic
23
The district court likewise recognized as much, stating "[a]
rule that would require a victim of infringement to delay taking
action to defend its copyright until actual (and perhaps
irreparable) harm had accrued would run contrary to the very
purpose of the Copyright Act." Holy Transfiguration I, 685 F.
Supp. 2d at 228 n.16.
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reasons for permitting certain kinds of copying to occur without
receiving direct compensation from the copier"). So do we.
If we were to rule that the Archbishop's use here was
fair, this unquestionably would affect the market for translations
of ancient religious texts, likely discouraging other institutions
from investing in and expending the time, effort, and resources
necessary for producing works that, without modern translations,
would remain predominantly inaccessible to other religious
institutions and their members. See Núñez, 235 F.3d at 24 (quoting
Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 110 (2d Cir.
1998)) (internal quotation marks omitted) (acknowledging that the
fourth factor is "concerned with secondary uses [of works] that, by
offering a substitute for the original, usurp a market that
properly belongs to the copyright holder"); see also Weissmann, 868
F.2d at 1326 (finding copying of scientific works not fair use
where such a determination "would tend to disrupt the market for
works of scientific research without conferring a commensurate
public benefit"). To say that use of the Works along the lines of
what the Archbishop did here would not affect the value of the
Works would be to drastically undercut the import of such texts and
their corresponding translations within the religious community at
large.
As to our second inquiry, it is without question that if
others were to engage in the "unrestricted and widespread" copying
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of the Monastery's Works, this would have an "adverse impact on the
potential market for the original" Works. Campbell, 510 U.S. at
590 (internal quotation mark and citation omitted). If anyone
could freely access the Works, electronically or otherwise, the
Monastery would have no market in which to try and publish,
disseminate, or sell its translations. The Archbishop himself
seemed aware of this danger, conceding that his Website provided
explicit instructions so that users could access, download, and
print copies of the Works, effectively negating any potential
market in the Works. See Harper & Row, 471 U.S. at 568 ("[T]o
negate fair use one need only show that if the challenged use
'should become widespread, it would adversely affect the potential
market for the copyrighted work.'" (quoting Sony, 464 U.S. at 451)
(emphasis added)). Thus, the Monastery's translations of ancient
texts (which the Archbishop does not contest were expensive to
create) would have been toiled over, with no possible market in
which to reap the fruits of its labor.
In sum, the record shows that the Archbishop offered
identical or near-identical versions of the creative Works on his
Website for the precise purpose for which the Monastery had created
the Works in the first place, thereby harming their potential
market value. See Worldwide Church, 227 F.3d at 1120 (assessing
market factor and noting as relevant "[t]he fact . . . that
[appellee] has unfairly appropriated [the work] in its entirety for
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the very purposes for which [appellant] created [it]"). Having
carefully balanced the scales, we conclude that the Archbishop's
defense of fair use fails in full.
4. Misuse of Copyright Defense
And so, we come to the last defense. Attempting to cloak
himself in copyright misuse's protective armament, the Archbishop
alleges that the Monastery's litigation tactics are nothing more
than a deliberate stratagem to prevent the Archbishop from sharing
ancient religious works with the Orthodox community, thereby
engaging in anti-competitive behavior and creating a monopoly.24
"This court has not yet recognized misuse of a copyright
as a defense to infringement." García-Goyco v. Law Envtl.
Consultants, Inc., 428 F.3d 14, 21 n.7 (1st Cir. 2005). Moreover,
even if we were to follow the lead of other circuits that have
recognized a copyright misuse defense, see, e.g., Practice Mgmt.
Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 521 (9th Cir. 1997),
amended by 133 F.3d 1140 (9th Cir. 1998); Lasercomb Am., Inc. v.
Reynolds, 911 F.2d 970, 973 (4th Cir. 1990), this case certainly
would not be the appropriate vehicle. Where a misuse-of-copyright
24
The defense of copyright misuse "derives from the doctrine of
patent misuse," which "'requires that the alleged infringer show
that the patentee has impermissibly broadened the physical or
temporal scope of the patent grant with anticompetitive effect.'"
Broad. Music Inc. v. Hampton Beach Casino Ballroom, Inc., No. CV-
94-248-B, 1995 WL 803576, at *5 n.8 (D.N.H. Aug. 30, 1995) (quoting
United Tel. Co. of Mo. v. Johnson Pub. Co., 855 F.2d 604, 610 (8th
Cir. 1988)).
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defense is recognized, a "defendant may prove copyright misuse by
either proving (1) a violation of the antitrust laws[,] or (2) that
[the copyright owner] otherwise illegally extended its monopoly or
violated the public policies underlying the copyright laws." Broad
Music Inc., 1995 WL 803576, at *5 (citing Lasercomb, 911 F.2d at
978); Nat'l Cable Television Ass'n, Inc. v. Broad. Music, Inc., 772
F. Supp. 614, 652 (D.D.C. 1991)). There is no suggestion here that
the Monastery has violated antitrust laws, and the claim that it
has a "monopoly" on ancient Orthodox texts is belied by the fact
that, as the Archbishop emphasizes elsewhere in his briefs, the
sacred texts in question are available in English translation
through publishers other than the Monastery. Moreover, the
Archbishop attempts to raise this defense from a record in which it
has never before so much as breathed an appearance. We have stated
time and again that "theories not raised squarely in the district
court cannot be surfaced for the first time on appeal." Curet-
Velázquez v. ACEMLA de P.R., Inc., 656 F.3d 47, 53 (1st Cir. 2011)
(quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.
1991)) (internal quotation mark omitted); Ramos-Baez v. Bossolo-
López, 240 F.3d 92, 94 (1st Cir. 2001). We therefore deem the
Archbishop's copyright misuse defense waived.
III. Conclusion
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Our pilgrimage through the complexities of copyright law
concluded, we keep our words here few -- for the foregoing reasons,
we affirm the decision of the district court.
Affirmed.
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