Mormons and Intellectual Property

One might think that property, a uniquely secular notion, has no truck with ecclesiastic authorities. After all, there’s supposedly no property in Heaven. Instead, everything is free up there, and there’s no such thing exclusive use and the right to refuse. Jesus said …. never mind.

To show how daft the notion of property is to matters of religion, consider a case I stumbled on recently. In it, the court said:

Plaintiff, God, claims that Defendant [Arizona State] university is infringing his copyright by using his “autobiography,” namely, “Bible,” without paying him royalties. Complaint at 2. Plaintiff seeks 9.3 million dollars in damages…The Court finds these allegations to rise to the level of being both fanciful and factually frivolous; accordingly, the Court will dismiss the Complaint without using the Marshals for service, nor putting Defendant to the task of responding to the Complaint [1].

However, Mormons, as well as the LDS Church itself, are decidedly capitalist. This means private property is a big deal. Moreover, these days, at least within the U.S., property rights extend to intellectual endeavors.

Doubt that? Consider that the University of Utah, with a Board of Regents filled with Mormons, threatened to sue HBO over its use of the U’s logo in the television series “Big Love.” Why the outrage, when most schools would appreciate all the attention? It seems that HBO had the audacity to depict (accurately, according to knowledgeable sources) the LDS Temple ceremony. Is that sacred rite protected by intellectual property laws? That is a question that has been kicked around the Mormon blogosphere. In any event, some payback was in order, and the U. saw itself as a good vehicle.

What is the history of intellectual property rights, Mormon-style? I found some interesting cases, dating all the way back to 1940s Hollywood.

The first one involved the Twentieth Century Fox film “Brigham Young – Frontiersman,” and the claim by a writer – Eleanor Harris – that she did not get proper credit for coming up with the idea and the script for the studio. Her request for an injunction and for damages were denied [2]. Around that time, another writer, Clara Dellar, brought an action against Samuel Goldwyn Inc. for copyright infringement, based on what she said was the adaptation of her Mormon-themed play “Oh, Shah” into the film “Roman Scandals” [3].

The next published Mormon-related intellectual property cases did not arise for another 40 years, when a scholar named Andrew F. Ehat sued Jerald and Sandra Tanner for their sale of notes in which he claimed to have a proprietary interest. Ehat took notes from a 350-page transcript of the William Clayton Journals at the LDS Church Archives. He gave to his colleague, Lyndon Cook, material consisting of quotations he and another researcher had taken from the Journals as well as his own notes and comments. This material was surreptitiously taken from Cook’s office, copied, and replaced. One of these unauthorized copies found its way to the Tanners, who had no part in the original removal from Cook’s office. They blacked out the material added by Ehat, printed the original extracts, and sold them to the public. Although Ehat won the case in state court, it was eventually thrown out on the grounds that his exclusive remedy was copyright, a federal cause of action [4].

The LDS Church was sued for copyright infringement in the 1990s. Donna Hotaling, William Hotaling, Jr., James Maher, and Dorothy Sherwood compiled and copyrighted a number of genealogical research materials, which were published in microfiche form and marketed by All-Ireland Heritage, Inc. In the late 1980s, the LDS Church, acquired a single legitimate copy of the microfiche and added it to its main library’s collection in Salt Lake City, Utah. The Church made microfiche copies of the works without the Hotalings’ permission and sent the copies to several of its branch libraries, located throughout the country.

In July, 1991, Donna Hotaling learned that the Church was making copies and placing them in its branch libraries. She contacted the Church and demanded that it stop this activity. After receiving her complaint, the Church recalled and destroyed many of the copies that it had made.

All-Ireland Heritage, Inc., sued the Church in 1992 for copyright infringement. The district court dismissed the action because All-Ireland Heritage, Inc., did not own the copyright. As a result of the lawsuit, however, the Church became concerned that nine of its branch libraries might still possess copies of the Hotaling works. In October, 1993, it sent a memorandum to those branch libraries asking them to search their microfiche inventories for copies of the works. Six libraries found and returned one microfiche copy each. Upon receipt, the main library destroyed these copies.

A few years later, Donna Hotaling visited a branch library in Rhode Island discovered a paper copy of one of the Hotaling works. In 1995, Donna Hotaling went to the Church’s main library in Salt Lake City, where she observed that the library maintained a microfiche copy of the Hotaling works in its collection. The Church acknowledged that the single copy it kept in its collection was one that it made. The library retained this copy, the Church explained, because the copy it originally acquired was destroyed inadvertently.

In August, 1995, the Hotalings filed another lawsuit. Following discovery, the Church moved for summary judgment, arguing that the record did not include any evidence of an infringing act within the three year statute of limitations. The district court granted the motion, and the Hotalings appealed, winning a reversal of the dismissal [5]. Presumably there was some sort of settlement from there.

More recently, LDS Church-owned Deseret Book was sued for plagiarism. Gene S. Jacobsen, alleged that Dean Hughes unlawfully copied Jacobsen’s memoir, Who Refused to Die, in the writing of his successful five volume Children of the Promise series which is published by Deseret Book. Jacobsen wrote his memoir Who Refused to Die shortly following his release as a war prisoner in 1945. The memoir is a personal account of Jacobsen’s experiences in the Bataan Death March and as a prisoner of war in the Philippines and in Japan, and he made about 180 copies of it.

Dean Hughes entered into an agreement with Deseret Book in early 1994 to author his Children of the Promise series. At about this time he became acquainted with Jacobsen’s memoir through his wife who worked with Jacobsen’s son. Hughes requested a meeting with Jacobsen in order to discuss his work and experiences. The two met at length at least once. Hughes claimed he at least had implied permission to use Jacobsen’s material. He stated that he was not aware of Jacobsen’s objections until sometime after Volume III had been published.

Jacobsen sued, and Hughes and Deseret Book succeeded in getting a dismissal [6]. Jacobsen, however, won a reversal, at which point there was probably an out-of-court settlement [7].

The Tanners were in court again more recently, objecting to the registration of their names as Internet domain names and their use in anti-Tanner, pro-Mormon parody website affiliated with the Foundation for Apologetic Information & Research (Fair)[8].

The most recent Mormon-related intellectual property case involved John Raymond Design, which sells framed pictures and drawing of the LDS temples, and its former distributor. The lawsuit involved the claim that the distributor was producing framed products that were intentionally designed to look like the Raymond Design pieces. The request for a preliminary injunction was rejected [9].

How does this history compare with religions which the LDS Church is commonly confused?

The Seventh-Day Adventists have litigated a number of intellectual property controversies, from the 1960s and a trademark dispute involving one of its food companies [10] to more recent times when they have sued over other churches and organizations using the “Seventh-Day Adventist” name or logo in way they claimed created confusion [11]. I found only one modern case where the Adventist Church was a defendant, involving a claim that an official Adventist magazine plagiarized a book [12].

The Christian Scientist Church has similarly been involved in trying through trademark litigation to prevent confusion between itself and its dissident organizations [13]. Like the Mormons, there have been Christian Science legal controversies over ownership and use of historical papers [14]. In one seminal case, the Christian Science Church was found to not have the ability to control dissemination of its standard work, Science and Health, by Mary Baker Eddy [15].

The Jehovah’s Witnesses? I could not find a single intellectual property case dealing with them, which is strange, given that they tend to lead the pack in court references among the Mormon/Adventist/Scientist/Witnesses. I should note that the weird case that started this article was brought by …. a Jehovah’s Witness.
_________________

[1] God v. Arizona State University, 2007 WL 1539324 (D.Ariz. 2007).

[2] Harris v. Twentieth Century Fox Film Corporation, 35 F.Supp. 153 (S.D.N.Y. 1940); Harris v. Twentieth Century Fox Film Corp., 43 F.Supp. 119 (S.D.N.Y. 1942).

[3] Dellar v. Samuel Goldwyn, Inc., 40 F.Supp. 534 (S.D.N.Y. 1942).

[4] Ehat v. Tanner, 780 F.2d 876 (10th Cir. 1985).

[5] Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997).

[6] Jacobsen v. Deseret Book Co., 2001 WL 1806858 (D.Utah 2001).

[7| Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002).

[8] Utah Lighthouse Ministry, Inc. v. Discovery Computing, Inc., 2005 WL 3263157(D.Utah 2005); Utah Lighthouse Ministry, Inc. v. Discovery Computing, Inc., 506 F.Supp.2d 889 (D. Utah); Utah Lighthouse Ministry v. Foundation for Apologetic Information and Research, 527 F.3d 1045 (10th Cir. 2008).

[9] Framed Wall Art, LLC v. PME Holdings, LLC, 2008 WL 5205822 (D.Utah 2008).

[10] Loma Linda Food Co. v. Thomson & Taylor Spice Co., 47 C.C.P.A. 1071, 279 F.2d 522 (Cust. & Pat.App. 1960).

[11] General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist, 887 F.2d 228 (9th Cir. 1989); General Conference Corporation of Seventh-Day Adventist v. Seventh-Day Adventist Kinship,1991 WL 11000345 (C.D.Cal. 1991); General Conference Corp. of Seventh-Day Adventists v. Perez,97 F.Supp.2d 1154 (S.D.Fla. 2000); General Conference Corp. of Seventh-Day Adventists v. McGill, 624 F.Supp.2d 883 (W.D.Tenn. 2008); ); General Conference Corp. of Seventh-Day Adventists v. McGill, Slip Copy, 2009 WL 1505710 (W.D.Tenn. 2009); General Conference Corp. of Seventh-Day Adventists v. McGill, Slip Copy, 2009 WL 1505738 (W.D.Tenn. 2009).

[12] Robles Aponte v. Seventh Day Adventist Church Interamerican Division, 443 F.Supp.2d 228 (D.P.R. 2006).

[13] Jandron v. Zuendel, 139 F.Supp. 887 (N.D. Ohio 1955); Christian Science Bd. of Directors of First Church of Christ, Scientist v. Evans, 191 N.J.Super. 411, 467 A.2d 268 (N.J.Super.Ch. 1983); . Christian Science Bd. of Directors of First Church of Christ, Scientist, in Boston, Mass., 199 N.J.Super. 160, 488 A.2d 1054 (N.J.Super.A.D. 1985); Christian Science Bd. of Directors of First Church of Christ, Scientist v. Evans, 105 N.J. 297, 520 A.2d 1347 (N.J. 1987); Christian Science Bd. of Directors of First Church of Christ, Scientist v. Robinson, 2000 WL 33422737 (W.D.N.C. 2000); Christian Science Bd. of Directors of First Church of Christ v. Robinson, 115 F.Supp.2d 607 (W.D.N.C. 2000); Christian Science Bd. of Directors of First Church of Christ, Scientist v. Robinson, 123 F.Supp.2d 965 (W.D.N.C. 2000); Christian Science Bd. of Directors of First Church of Christ v. Robinson, 115 F.Supp.2d 607 (W.D.N.C. 2000); Christian Science Bd. of Directors of First Church of Christ, Scientist v. Robinson, 2000 WL 33422739 (W.D.N.C. 2000); Christian Science Bd. of Directors of First Church of Christ v. Robinson, 1 Fed.Appx. 157 (4th Cir. 2001); Christian Science Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209 (4th Cir. 2001); Christian Science Bd. of Directors of the First Church of Christ, Scientist v. Robinson, Slip Copy, 2001 WL 1301343 (4th Cir. 2001).

[14] Carpenter Foundation v. Oakes, 26 Cal.App.3d 784, 103 Cal.Rptr. 368 (Cal.App. 1972).

[15] United Christian Scientists v. Christian Science Bd. of Directors of First Church of Christ, Scientists, 616 F.Supp. 476 (D..D.C. 1985); United Christian Scientists v. Christian Science Bd. of Directors, First Church of Christ, Scientists, 829 F.2d 1152 (D.C. Cir. 1987).