By Stephen McIntyre

Above a photocopier on the Brigham Young University campus hangs a sign that asks: “Are You COPYRIGHTEOUS?”¹ followed by a passage from the Doctrine & Covenants: “Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land.”² The sign’s invocation of LDS scripture, as well as its implication that devotion to God entails obedience to copyright law, not only raises questions about the intersection between religious morality and secular law but also highlights the role of copyright in Mormonism.³

Copyright law may be “complicated, arcane, and counterintuitive,”⁴ but because it subsists in nearly all types of human expression, it is “important in every area of culture, science, and technology,”⁵ including religion and religious media. Religious authority, belief, and identity often derive from texts that are both sacred and copyright-protected. Copyright law enables churches and religious leaders to control the manner in which others (adherents and dissidents alike) use their religious literature. As an increasing number of cases show, “copyright can [and does] impact religious practice.”⁶ When Joseph Smith established his Church of Christ in 1830,⁷ copyright law had already existed for 121 years.⁸

This article examines the role copyright has played in Mormonism from the religion’s founding until the present. I argue that the LDS Church’s copyright practices have primarily been motivated by a desire to guard Mormon texts from alteration and misuse by perceived enemies. While copyright empowers the Church to police the manner in which outsiders use Mormon publications, the control afforded by copyright is both a blessing and a curse; as experience has shown, exercising copyright may undermine beneficial technologies or tarnish the Church’s public image.

COPYRIGHT AND CONTROL

Copyright is a legal mechanism for controlling the use and dissemination of media. It encompasses several rights, including the right to reproduce a work, the right of distribution, and rights of public display and performance.⁹ These rights are exclusive to their holder and subsist in all “original works of authorship” from the time of their creation until 70 years after the author’s death.¹⁰ The traditional justification for copyright is utilitarian: as the U.S. Supreme Court has explained, “By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”¹¹ This rationale is codified in the Constitution, which empowers Congress to “promote the Progress of Science and useful Arts” through the bestowal of copyrights.¹²

Although fashioned as an “engine of free expression,”¹³ copyright law can also be employed to staunch that expression. In the late 1980s, J.D. Salinger, the renowned but reclusive author of The Catcher in the Rye, successfully used copyright law to prevent Random House from publishing an unauthorized biography about him.¹⁴ In recent years, news organizations and candidates for public office have relied on copyright law to restrict political speech.¹⁵ Though a copyright does not afford authors an absolute monopoly over their work,¹⁶ it does afford them a significant degree of control over others’ use of the copyrighted media.

COPYRIGHT AND RELIGION

Legal scholarship has only recently begun to explore the copyright system’s religious applications and implications. Depending on the nature of religious texts and religious organizations’ motivations for enforcing copyrights, religious cases can test the limits of copyright doctrines and challenge the premises of copyright law.

For instance, Thomas F. Cotter argues that there is reason for “considerable skepticism over the copyright status of some types of religious works.”¹⁷ When a text purports to have been written by an immortal God—or, as is more often the case, dictated by an immortal God to a mortal mouthpiece—how should the “life plus 70 years” term be measured? “An immortal author’s copyright . . . would last forever,” Cotter points out, “in apparent violation of the Constitution, which authorizes Congress to grant copyrights only for ‘limited [times].’”¹⁸ Further, “it would seem a bit presumptuous for [the] Prophet himself to claim a copyright interest in the work.”¹⁹ The few courts to grapple with this question have treated human revelators as authors,²⁰ though of course this means overlooking, if not altogether rejecting, religious claims of divine authorship.²¹

David A. Simon has recently shown that religious entities seldom enforce their copyrights for economic gain.²² Typically, the purpose of religious copyright claims has been to protect religious identity, to maintain secrecy, to preserve doctrinal purity, or to censor others.²³ In one frequently discussed case, an evangelical Christian group called the Worldwide Church of God (“WCG”) successfully enjoined a splinter group from printing Mystery of Ages, a book that the splinter group considered “central to its religious practice.”²⁴ WCG’s founder published Mystery of Ages prior to his death, but WCG, which retained the copyright, had since repudiated and ceased distributing the book. When two former WCG ministers founded the splinter group and began printing their own copies of Mystery of Ages, WCG sued. The U.S. Court of Appeals for the Ninth Circuit rejected the splinter group’s “fair use” and First Amendment-based defenses, and ordered them to stop printing the religious text.²⁵ Far from furthering the public-oriented goals of copyright law, the case inhibited religious practice and restricted public access to a religious work.

Cases such as that of the Worldwide Church of God demonstrate that, regardless of copyright’s intended purposes and despite the legal complexities that religious cases raise, copyright tends to be an effective means of policing religious media. Such cases provide insight into the religious litigants themselves. When a church attempts to control others’ use of religious media, it speaks to that church’s attitude toward its texts and its relationship with outsiders.

COPYRIGHT AND MORMONISM

Mormon copyright practices are best explained as what Joseph Fielding Smith called a “jealous care pertaining to the word of the Lord and other publications and documents.”²⁶ Mormons take the integrity of their texts seriously and have consistently relied on copyright strictures to guard against distortion and misuse. People antagonistic to the Church have sometimes been able to circumvent copyright law and employ Mormon texts to challenge the LDS Church’s teachings and religious authority. Thus, while the modern Church has gained a reputation for being protective of its intellectual property,²⁷ this defensive stance is not unreasonable when viewed in historical perspective. Nonetheless, copyright enforcement carries certain risks, especially in the Internet era, a reality which has sometimes restrained the Church’s steps toward enforcement.

SACRED TEXTS IN MORMON THOUGHT

The “jealous care” to which Joseph Fielding Smith referred is deeply embedded in Mormon thought. The Book of Mormon, for example, repeatedly emphasizes the importance of safeguarding sacred texts. When entrusting the Nephites’ records to Helaman, Alma exhorts him to “take care of these sacred things.”²⁸ Enos entreats God to protect the Nephite texts from the Lamanites who had “sworn in their wrath that, if it were possible, they would destroy [the] records.”²⁹ Near the end of the volume, Mormon hides the prophets’ writings in the hill Cumorah in order to prevent them from “fall[ing] into the hands of the Lamanites, (for the Lamanites would destroy them).”³⁰ The Book of Mormon warns against not only physical destruction of holy writ but also figurative destruction through misapplication and distortion—a sin described as “wrest[ing] the scriptures.”³¹

LDS views of the Bible likewise reflect an anxiety for scriptural integrity. Where many Christians hold the Bible to be inerrant, Mormons believe that it has become corrupted through mistranslation and uninspired alteration; the Eighth Article of Faith states that the Bible constitutes the word of God only “as far as it is translated correctly.” Joseph Smith taught that “many important points touching the salvation of men [have] been taken from the Bible,”³² attributing these deletions to “[i]gnorant translators, careless transcribers, or designing and corrupt priests.”³³ This view is at least partly grounded in the Book of Mormon, which teaches that “plain and precious” truths have been deliberately removed from the Bible by those seeking to “pervert the right ways of the Lord.”³⁴

These beliefs help to explain Mormons’ “jealous care” for their texts. Like the Book of Mormon prophet who is their namesake, Mormons see themselves as stewards of the scriptures, tasked with protecting the word of God from desecration. This perception has informed Mormon copyright practice since the Church’s beginnings.

COPYRIGHT IN MORMON HISTORY

Early in his prophetic career, Joseph Smith learned the perils of losing control of sacred records. After dictating 116 pages of the Book of Mormon text, Joseph entrusted the unfinished manuscript to his scribe, Martin Harris.³⁵ As most Mormons know, these pages went missing and were never recovered. The loss triggered a revelation in which the voice of God rebuked Joseph for “deliver[ing] up that which was sacred into the hands of a wicked man.”³⁶ A subsequent revelation to Joseph said that the manuscript had fallen into the hands of “wicked men” who intended to alter the text so as to discredit Joseph’s prophetic claims.³⁷

This experience must have impressed upon Joseph the importance of maintaining physical and legal control over the Book of Mormon. Once Joseph finished translating the Book of Mormon in June 1829, he quickly secured a copyright.³⁸ Joseph’s promptness proved fortunate; although he closely guarded the manuscript during the printing process,³⁹ a few pages fell into the hands of detractor Abner Cole.⁴⁰ In December 1829, Cole began printing excerpts from the as-yet unpublished Book of Mormon in his weekly newspaper, thus giving rise to Mormonism’s first copyright dispute. Joseph confronted Cole in the printing office, informing him that “that book, . . . and the right of publishing it, belongs to me, and I forbid you from meddling with it any further.”⁴¹ Cole initially responded by “smacking his fists together with vengeance,” but after further pressure, Joseph persuaded Cole to submit to a legal arbitration that upheld Joseph’s copyright.⁴²

Some Mormons have alleged that Abner Cole, like the “wicked men” who allegedly planned to alter the 116 pages, changed the scriptural text. B. H. Roberts, for example, wrote that Cole “mutilated” it, “add[ing] vulgarisms intended to destroy the work.”⁴³ Cole may have struck a derisive tone in some of his columns, but he in fact faithfully reproduced the Book of Mormon passages, with only minor errors.⁴⁴ Insinuations to the contrary reflect Mormons’ concern for preserving their sacred texts inviolate in the face of hostile and suspicious outsiders.

In early 1830, Joseph Smith received a revelation concerning the Canadian copyright for the Book of Mormon. As David Whitmer later explained, “more money was needed to finish the printing” of the Book of Mormon in the United States, and Hyrum Smith suggested that the copyright might be sold to a publisher in Canada for “considerable money.”⁴⁵ After inquiring of God, Joseph received a revelation directing Oliver Cowdery, Joseph Knight, Hiram Page, and Josiah Stowell to travel to Kingston, Ontario, where they were to sell the copyright. The named brethren traveled to Canada but were unable to find a buyer. According to Whitmer, Joseph subsequently acknowledged that the revelation may have been erroneous.⁴⁶

It may seem anomalous that Joseph would consider alienating the Canadian copyright to the Book of Mormon—and, by extension, control over the book’s content and dissemination—in order to deliver himself from financial hardship.⁴⁷ However, an examination of the revelatory text shows that the contemplated sale was not inconsistent with Joseph’s manifest sensitivity to the Book of Mormon’s security. The revelation begins by directing Joseph and his associates to “be dilligent in Securing the Copy right of my work upon all the face of the Earth . . . that my work be not destroyed by the workers of iniquity.”⁴⁸ Copyright was not merely (or even primarily) an assertion of the right to commercial profits but an instrument for preventing the scriptures from falling into the hands of unidentified “workers of iniquity.” (Coming on the heels of the Abner Cole incident, the statement is hardly surprising.) Once the copyright had been secured, the revelation continues, the new scripture would become a “means of bringing souls unto Salvation.”⁴⁹

While granting the brethren a “privelige” to sell the Book of Mormon copyright, the revelation conditioned their success upon the “People harden[ing] not their hearts.”⁵⁰ The stipulation that the book’s prospective recipients open their hearts, taken together with the affirmation of copyright’s role in preventing “workers of iniquity” from frustrating God’s will, suggests that (at least in Joseph’s mind) God would not permit the sale to occur unless a faithful buyer were located. The copyright would then be a source of both “temperal” and “Spirit[u]al” blessings⁵¹—resolving Joseph’s financial problems while facilitating the Book of Mormon’s publication in Canada. So understood, the revelation does not seriously call into question Joseph’s protectiveness of the Book of Mormon; it merely evidences his faith that divine power would protect the sacred record from unrighteous designs.

In the years following the Church’s founding, copyright remained an essential tool for protecting Mormon texts from anti-Mormon scheming. In late 1831, Joseph Smith called Martin Harris, Oliver Cowdery, and John Whitmer to be “stewards over the literary concerns of [the] church,”⁵² and subsequent revelations often discussed printing and publication.⁵³ Significantly, in 1834, Joseph dictated another revelation that specifically addressed copyright.⁵⁴ In it, the voice of God commands Joseph to “take the [B]ook of Mormon and also the copyright,” and to secure copyrights for the Doctrine & Covenants and the new translation of the Bible, so that “others may not take the blessings away from you which I have confirmed upon you.”⁵⁵ Like the Canadian copyright revelation, the 1834 revelation portrays copyright as a divinely endorsed means of protecting Mormon scripture from unnamed “others.”

A few years later, Mormons again used copyright to thwart the plans of perceived enemies. While on a mission to England in 1845, Wilford Woodruff recorded that he had received word that a group of “apostates”⁵⁶—apparently members of Sidney Rigdon’s breakaway Church of Christ⁵⁷ —were plotting “in secret chambers in the city of Pittsburg, to rob the church of the copyright of [the Doctrine & Covenants] by entering it [in England] before me.”⁵⁸ Elder Woodruff promptly registered the English copyright to the Doctrine & Covenants, thereby defeating this “secret scheme of the enemies of the Church.”⁵⁹ It is no surprise that subsequent to this incident, Brigham Young—who was just emerging from the Mormon succession crisis—instructed other missionaries to begin copyrighting Church publications in his name.⁶⁰

I mention this tactic not to suggest that early Mormons were purely interested in defensive or censorial applications of copyright law. A December 1831 revelation to Joseph Smith commands that the Church’s revelations be published, not only to facilitate their dissemination “unto the ends of the earth,” but also to generate “funds which shall benefit the church in all things.”⁶¹

While early Mormons’ suspicions regarding unidentified “wicked men” and “workers of iniquity” may suggest a degree of paranoia, their fears were occasionally realized. Because copyright lasted for a mere 28 years under the Copyright Act of 1831,⁶² the Book of Mormon passed into the public domain in 1857, which meant that the Church could no longer prevent its enemies from copying or otherwise using it.⁶³ The following year, non-Mormon James O. Wright printed 4,000 copies of the book in an attempt to profit from public fascination with the Utah War.⁶⁴ Wright’s Book of Mormon was basically a reprint of the 1840 Nauvoo edition, except that he prefaced it with an anti-Mormon account of the book’s origins. While Wright sold few copies (despite urging Congress to “purchase and distribute copies . . . as the most effective means of destroying the religious delusion embraced by its believers”⁶⁵), his endeavor underscores the difficulties that attend losing control over sacred texts.⁶⁶

More significant was the Church’s failure to retain control over Joseph Smith’s new translation of the Bible. Despite the 1834 revelation directing Joseph to secure a copyright of the translation, he apparently never did.⁶⁷ After his death in 1844, the unpublished manuscript, along with the prerogative to register its copyright, remained with his widow, Emma. After winning Emma’s cooperation, the Reorganized Church published the translation in 1867 as the Holy Scriptures, under its own copyright.⁶⁸ This victory “was seen as validating the ministry of the RLDS Church”; as one RLDS elder proclaimed, the Holy Scriptures was “one of the strongest proofs that the Reorganized church [was] the church of Christ.”⁶⁹ Stinging from the threat to their legitimacy and unable to print their own copies of the translation, Utah Mormons accused the RLDS Church of mutilating the original manuscript, although there is no evidence to support this accusation.⁷⁰

Continued in Part II