Soc'y of the Holy Transfiguration Monastery, Inc. v. Denver

• Citation: 2012 Copr.L.Dec. P 30297,103 U.S.P.Q.2d 1585,689 F.3d 29
• Decision Date: 02 August 2012
• Docket Number: No. 11–1262.,11–1262.
• Parties: SOCIETY OF the HOLY TRANSFIGURATION MONASTERY, INC., Plaintiff, Appellee, v. Archbishop GREGORY of Denver, Colorado, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

689 F.3d 29

2012 Copr.L.Dec. P 30,297

103 U.S.P.Q.2d 1585

SOCIETY OF the HOLY TRANSFIGURATION MONASTERY, INC., Plaintiff, Appellee,

v.Archbishop GREGORY of Denver, Colorado, Defendant, Appellant.

No. 11–1262.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 2012.

Decided Aug. 2, 2012.

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. Fischer, and Duane Morris LLP, were on brief for appellee.

Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, and BOUDIN, Circuit Judge.

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

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 affiliation ² 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, (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, 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 monk ⁵ in the order who, true to his apostolic name, has served and supportedthe 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.

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 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 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 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...