The King James Copyright: A Look at the Originality of Derivative Translations of the King James Version of the Bible

Journal of Intellectual Property Law Volume 12 | Issue 2 Article 6 April 2005 The King James Copyright: A Look at the Originality of Derivative Translations of the King James Version of the Bible Jason L. Cohn University of Georgia School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Biblical Studies Commons, Intellectual Property Law Commons, and the Religion Law Commons Recommended Citation Jason L. Cohn, The King James Copyright: A Look at the Originality of Derivative Translations of the King James Version of the Bible, 12 J. Intell. Prop. L. 513 (2005). Available at: https://digitalcommons.law.uga.edu/jipl/vol12/iss2/6 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Cohn: The King James Copyright: A Look at the Originality of Derivative NOTES THE KING JAMES COPYRIGHT: A LOOKAT THE ORIGINALITY OF DERIVATIVE TRANSLATIONS OF THE KING JAMES VERSION OF THE BIBLE I. INTRODUCTION Imagine the pastor of a church sitting at his desk trying to decide which book of the Bible to cover for one of his Sunday school classes. After hours of contemplation, he decides to teach about the Book of Acts. The pastor pulls his New KingJames Version (NKJV) of the Bible down from his shelf and proceeds to the photocopy machine. Upon opening the cover of the Bible he notices that his version of the Bible is copyrighted and contains the following statement: The text of the New King James Version . .. may be quoted or reprinted without prior written permission with the following qualifications: (1) up to and including 1,000 verses may be quoted in printed form as long as the verses quoted amount to less than 50% of a complete book of the Bible and make up less than 50% of the total work in which they are quoted; (2) all NKJV quotations must conform accurately to the NKJV text.' After reading this statement, the pastor decides not to photocopy the Book of Acts in the NKJV for fear of copyright infringement. He returns to his office, looks at his King James Version (KJV) of the Bible, and notices a copyright on that version as well. The pastor, now confused about why the Bible is copyrighted, decides not to cover the Book of Acts in his Sunday school class, for the church cannot afford to purchase enough Bibles to avoid potential copyright infringement. The hypothetical situation involving the pastor and his two versions of the Bible raises this question: Since the KJV Bible is in the public domain, how enforceable is the copyright on the NKJV and KJV Bibles that the pastor possesses? In particular, what types of changes, and how many, are needed ' Copyright Preface (New King James) (Thomas Nelson, Inc. 1982). Published by Digital Commons @ Georgia Law, 2005 1 Journal of Intellectual Property Law, Vol. 12, Iss. 2 [2005], Art. 6 J. INTELL PROP.LV [Vol. 12:513 in a subsequent Bible translation in order to gain sufficient originality for copyright protection? Do the NKJV and KJV Bibles satisfy this threshold? This Note seeks to determine whether there is sufficient originality in the NKJV and KJV Bibles compared to the public domain version of the KingJames Bible. This Note begins by explaining the originality requirement as set out in the Copyright Act of 1976 (1976 Act).2 By examining relevant case law and comparing the reasoning to the NKJV and KJV Bibles, this Note analyzes the originality of the Bibles to determine if their copyrights protect their texts. Finally, this Note concludes that the printed KJV Bible is not sufficiently original from the public domain version, but that the NKJV Bible is sufficiently original. The NKJV Bible likely has a "thin" copyright ascribed to it, however, and will only be protected against verbatim copying. II. BACKGROUND A. COPYRIGHT LAW The United States Constitution allows for copyright protection in article 1, section 8, clause 8, which states, "Congress shall have the Power... To Promote the Progress of Science and useful Arts, by securing for limited Times, to Authors3 and Inventors, the exclusive Right to their respective Writings and Discoveries." In 1790, soon after this constitutional provision was adopted, Congress passed 4 our first copyright act, providing protection for maps, charts, and books. Since the introduction of the Copyright Act of 1790, Congress has revised our nation's copyright law numerous times, most notably with the Copyright Acts of 1909' and 1976.6 The Copyright Act of 1976 continues to provide the basis for copyright law today, although Congress is continually amending the statue to reflect the ever-evolving view of copyright law in the United States.7 2 Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. 101-810 (2000)). 3 U.S. CONST. art. I, § 8, cl. 8. 4 Paul J. Heald, Reviving the Rhetoric of the Public Interest: Choir Directors,Copy Machines, and New Arrangementsof PublicDomain Music,46 DuKE L.J. 241,247 (1996) (referring to the Copyright Act of 1790, ch. 15, 1 Stat. 124-26). 5 Copyright Act of 1909, ch. 320, 35 Stat. 1075-88 (amended 1976). 6 Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101-810 (2000)). 7 See CRAIG JOYCE ET AL., COPYRIGHT LAw 24-25 (6th ed. 2003) (listing many revisions and implementation acts in the Copyright Act of 1976). https://digitalcommons.law.uga.edu/jipl/vol12/iss2/6 2 Cohn: The King James Copyright: A Look at the Originality of Derivative 20051 KING JAMES COPYRIGHT Section 102 of the Copyright Act contains two requirements for obtaining a valid copyright: fixation and an original work of authorship.8 The statute further limits the protection of original works of authorship by stating "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied insuch work." 9 1. Oiginality Requirement. Courts have adopted two criteria for originality: "independent creation by the author and a modest quantum of creativity."' The independent creation prong of originality is satisfied if the work originated with the author." To be an independent creation, the author's work need not be novel or unique." In fact, independent creation is satisfied even "if a writer who has never known a previous work somehow creates an exact duplicate of that work or a substantial portion thereof.' 13 Significantly, in that situation "the second work is nonetheless copyrightable because, even though it is not 'novel' or 'unique,' it 'originated' with the second author."' 4 The amount of creativity needed to satisfy (...truncated)