David A. Simon


The goal of this Article is to do what others have not: determine whether religious organizations should use copyright law to advance their goals of censorship and doctrinal purity. Answering this question entails a two-step analysis. First, the religious motivations must be compared with the underlying theories of, or justifications for, copyright law. Whether those principles align or conflict with religious motivations will inform our normative answer. Regardless of the answer to the aforementioned inquiry, the second step analyzes whether substantive copyright law doctrine facilitates or impedes the achievement of the ends advanced by these religious motivations. As a result of this analysis, this Article finds that these religious motivations for pursuing and enforcing copyright protection are antithetical to its foundational principles. Not only do these religious motivations run counter to the basic theory of copyright law, they directly conflict with specific copyright doctrines that exist today. Therefore, this Article argues that copyright law is an inadequate tool for "protecting" religion or members of a religion. Although inadequate, copyright law can aid religious goals in some instances. Those instances, however, are drowned out by the foundational and doctrinal noise that religions must mute to protect their religious works. This analysis shows that copyright is not designed to address many concerns of religious organizations. Therefore, it should not be used to advance the religious motivations of censorship and doctrinal purity. Part I explains the reasons that religious organizations might employ copyright law. To accomplish this task, this Part reviews literature and case law. From those two sources, this Article deduces that among these motivations, two are the most prominent: (1) censoring spiritual dissention, denigration, or criticism and (2) maintaining doctrinal purity. Part II of this Article explores the interaction between religious motivations for seeking copyright protection and the underlying principles of copyright law. To achieve this objective, this Part explains three theories of copyright: economic theory, property rights theory, and cultural theory. After explaining each theory, this Part examines whether the religious motivations identified in Part I harmonize or clash with the principles underlying each theory. This discussion focuses heavily on the property rights theory of copyright because many religious organizations frame their motivations in natural law terms. Part III recounts the doctrinal obstacles that copyright presents for religious organizations and the achievement of their goals. To do this, this Part explains several copyright doctrines and explicates how they prevent religious organizations from achieving their goals. Among the doctrines examined are originality, the merger doctrine, and fair use. Part III concludes that copyright law doctrines do not facilitate the achievement of censorship and doctrinal purity. Based on the analysis in Parts II and III, the Article concludes that religious organizations' attempts to censor and preserve doctrinal purity are wrongheaded. Therefore, religious organizations should not use copyright law to achieve these aims.