The title of this piece tracks a common “phrase of exasperation used to emphasize a question or statement.” If that be the case, and I think it is, then the subtitle implies the question this piece will address. That question is “how have various countries’ intellectual property laws addressed efforts to copyright, trademark, or patent holy names, sacred words, or outputs of creation?” The title, of course, also is a bit of play on words, as it asks the question more directly “what intellectual property rights are out there that people can acquire ‘in the name of God’?” That can mean rights to the name (or one of the names) itself. It can also mean as the proxy or substitute holder of rights here on earth because no spiritual being will receive a copyright certificate, trademark registrations, or letters patent. So a lot is implied in, or possible from, the title (as is often my intent on this blog).
This author’s interest in the topic was rekindled by a recent article asking whether a movie studio would make copyright claims to control the Norse mythology of the trickster god Loki, and another article concerning a lawsuit against the Vatican concerning a newly-issued papal postage stamp depicting an angel as found in local street art outside the Vatican. But it runs deeper and further back for this author, and provides for a broader discussion, as it seems to be an issue many countries have addressed, differently, as my research here has revealed.
Before jumping into comparative law issues, one should note that these questions are ones of concern beyond lawyers, and have much greater practical importance than “How many angels can dance on the head of a pin?” That is because religion is big business, as the Washington Post noted in detailing a 2016 empirical study on the socio-economic contribution of religion to American society. As that report noted:
The study’s most conservative estimate…takes into account only the revenues of faith-based organizations, [and] is $378 billion annually … By way of economic perspective, this is more than the global annual revenues of tech giants Apple and Microsoft combined. …Our second mid-range estimate … provid[es] an estimate of the fair market value of goods and services provided by religious organizations, and … include[es] the contribution of businesses with religious roots. This mid-range estimate puts the value of religion to U.S. society at over $1 trillion annually. Our third, higher-end estimate recognizes that people of faith conduct their affairs to some extent (however imperfectly) inspired and guided by their faith ideals [and] … places the value of faith to U.S. society at $4.8 trillion annually, or the equivalent of nearly a third of America’s gross domestic product.
Having greater revenue than Microsoft and Apple combined is the 21st century equivalent of saying, “we’re bigger than U.S. Steel” (which is actually more a Godfather reference than a God one). The report notes on page 11 that “In 2003, research estimates put the [U.S.] market for religious publishing and products at $6.8 billion and growing at a rate of nearly 5% annually.”
Beyond pure economics, intellectual property rights can impact on the ease or difficulty with which sacred books may be translated into new languages, which has extra-economic impacts as well, as some have noted. In fact, in his 2019 book Copyrighting God: Ownership of the Sacred in American Religion, Andrew Ventimiglia examines the “intersection of intellectual property and religious publishing,” the “tensions between religious and legal logics,” and “foundational tensions between private and sacred property continue to manifest in…intellectual property law, creating unique challenges…” (at page 9 and 13). That book has a U.S. focus and does a good job of telling that story. This blog piece looks beyond the U.S. context to see how various other countries have responded to such challenges as well, not only in copyright but in trademark and patent too.
A. “…this glorious and awesome name…”: Trademarks Using Holy Names and Words
In Europe and the United States at least, every trademark has at least three purposes:
(1) It identifies the origin of a product or service; (2) It guarantees consistent quality of that good or service; (3) It serves as symbolic communication as a basis for publicity and advertising
[Juliet Dee, Sweet baby Jesus, the band who must not be named, and friends U can’t trust: Disparaging, immoral and scandalous trademarks in the United States and the European Union, 53 First Amendment Studies 91, 93 (2019)].
One can recognize the importance of God’s names spiritually, of course, as Dr. Tony Evans has in his 2014 book, The Power of God’s Names. But just a quick look at the USPTO’s Trademark Electronic Search System (or TESS) databases reveals many live deistic trademarks include as all or part of a U.S. registered trademark the various names of God that Dr. Evans analyzed, names that he described as reflecting “the idea of power, responsibility, purpose, and authority”; they “not only express the essence and significance of what is being named but also when duly authorized, access the quality it conveys.” Evans (2014) at 12. Since, as noted above, trademarks, duly registered, also speak to the sense of quality conveyed, consider that the following names of God are currently all or part of the following number of live U.S. registered trademarks:
Plus TESS shows live US trademarks for or including:
As one commentator has noted, in the United States “[t]here is no inherent or statutory bar for a symbol that has acquired religious connotations and spiritual meaning to a group of believers to be protected as a commercial trademark, provided that certain legal conditions are met.” Aseri, Commercializing Religion Via Trademarking God, 23 J. World Intellect. Prop. 75, 79 (2020).
Further, that same commentator has noted that:
In 2007, the U.S. Patent and Trademark Office granted ownership of the word “Jesus” to Jesus Jeans, owned by a publicly traded Italian company, BasicNet, giving the company exclusive rights in America to sell clothing bearing the name “Jesus.” In Jews for Jesus [v. Brodsky, 993 F.Supp. 282 (D.N.J. 1998)], the court determined that the trademark Jews for Jesus was descriptive, and therefore required secondary meaning before trademark protection could be granted….The word “GOD” has been trademarked by a company Morell International, Inc. for computer application software.
[Aseri (2020) at 80]
The United States Patent and Trademark Office has to apply 15 U.S.C. §1052(a), which precludes registering “immoral” or “scandalous” marks or those that “falsely suggest a connection with …beliefs, … or bring them into contempt, or disrepute.” But neither the PTO nor U.S. courts have denied registration to religious marks as being offensive to other believers or to non-believers.
Such trademarks would have a difficult time, however, in other countries with more specific statutes, such as India. Section 9(2) of the Indian Trademark, 1999, states:
(2) A mark shall not be registered as a trade mark if—
… (b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.
[Indian Trademark Act of 1999, Section 9(2)(b) (emphasis added)(language quoted from ¶17 of Amritpal Singh v. Lal Babu Priyadarshi]
Section 9(2)(b) “is an absolute ground for refusal for registration of a mark under the Indian Trademark Act.” Aseri (2020) at 70.
But that “provision only restricts registration of the mark. This provision does not prohibit the use of the mark offending the religious beliefs of the group as the unregistered mark.” Id. at 77. The Indian Supreme Court has taken this a step further:
The Supreme Court in the case of Amritpal Singh v. Lal Babu Priyadarshi for the first time imposed a blanket prohibition on the registration of name of religious book, and by extension, all names with religious connotation unworthy of trademark registration. …While ruling in favor of the respondent, the court observed that no single person should be allowed to gain exclusive use over the name of holy or religious books…
[Lovish Garg, Trademarking Religion- Examining The Judicial
Conundrum Of Section 9(2)(B) Of Indian Trademarks Act, 9 Indian J. Intell. Prop. L. 73, 77 (2018)(footnotes omitted)]
The Indian Supreme Court expressed three main reasons for this decision:
First, if the names of religious books should be prohibited, then by logical extension, names of all Gods and Goddess should also be prohibited for registration. The Hindu religion itself claims to have over 330 million different Gods and Goddesses. The same assumption would also extend to other demi-gods, saints, prophets of all the religions taking the total ban tally to an astronomical figure….
Second, it has been argued that the court merely espoused the settled principles of trademark law that ‘common’ names and phrases cannot be monopolized. The principle applies to religious names since they lack distinctiveness as per the threshold laid down under Section 9(1)(a). In fact, the courts in numerous instances have also mentioned that the name of Gods merely qualify as common words which should not be monopolized….
Third, it is a settled principle of law that common words can be registered only once they acquire secondary distinctiveness. The problem gets accentuated in the case of name of Gods and Goddesses because it is inherently difficult for such names to gain a secondary distinctiveness separate from the original common word.
[Garg (2018), at 78-80].
Thus, the Indian approach differs from the U.S. approach as to trademarking the sacred.
Other countries seem, for the most part, to divide, and fall in behind, either the Indian or the U.S. approach. “Jesus has been registered as a trademark in Belgium, the Netherlands, Luxembourg, Austria, France, Italy, [and] Spain,” for example. Dee (2019) at 119. But “[i]n England, the trademark examiner denied Jesus as a trademark,” and a “trademark for Jesus was also denied in Germany, Switzerland, Hungary, Ireland, China, Australia, Norway, Cuba, Turkey, Uzbekistan, Tajikistan, [and] Kyrgyzstan.” Id. But at least one European trademark office has not fallen clearly in either camp: “Just as the PTO has registered Jesus Jeans, the Benelux Office for Intellectual Property in the Netherlands has registered trademarks for Shiva and Ganesh, two important Hindu Gods,” but the same office “refused to register Allah as a trademark,” adding “only a cryptic explanation” stating that the “‘Allah sign, the name of God used in Islam, will not be regarded as a trademark and is therefore devoid of any and all distinctive character.’” Dee (2020) at 119-120.
The upshot seems to be that, in the United States at least, registering any of the various names of God as all or part of a trademark is relatively commonplace, and certainly does not face some of the categorical prohibitions found elsewhere.
B. “…the glad tidings of a Word…”: Copyrights In Sacred Texts And Rites
Though the United States is relatively open to trademarking holy names or terms, the U.S. Copyright Office approach to the sacred differs. The Compendium of U.S. Copyright Office Practices “provides an explicit ‘Human Authorship Requirement’ for a work to be subject to copyright protection. The Compendium specifically excludes works alleged to be created by a divine being.” Jarrod Welsh, Copyrighting God: New Copyright Guidelines Do Not Protect Divine Beings, 17 Rutgers Journal Of Law & Religion 121 (2015). As that Compendium notes in its 2021 edition at Section 313.2:
The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.
So, whatever the religious truth revealed in John 1:1 that “In the beginning was the Word, and the Word was with God, and the Word was God,” that is not true as a matter of U.S. copyright law.
The centrality of human authorship is largely shared outside the United States as well. This was historically the sense in Canada, France, the Netherlands, and Belgium, for example, and has been argued even to be required internationally under the Berne Convention, as Jane Ginsburg (2003) has noted. But she has also noted, then, that some systems such as Australia allow copyright ownership for “works of authorship (whose creators are, implicitly human beings) and [copyrightable] ‘subject matter other than works.’”(emphasis added). She also noted that, within the United Kingdom, decided cases did not preclude human registration and ownership of the divinely revealed: “’when faced with claims of supernatural authorship, courts invariably conclude that humans own the intellectual property,’” awarding copyright rights even to “medium[s]…disclaiming personal creativity.” Ginsburg (2003) at 1086-87. Though continuing more recently in 2018 to extol the human author requirement, her 2003 work demonstrates that the UK has historically been more flexible on this issue than the United States has now become. Indeed, she cites there (in fns. 98-99) the 1927 English case of Cummins v. Bond that both disregarded the claim (or the court’s jurisdiction to rule on such a claim) of the supernatural authorship, and recognized the possibility of joint authorship between living humans and a spirit, each of which is a far cry from the U.S. Compendium’s unforgiving standard.
Because religious publishing is, as noted above, big business in the United States, religious groups continue to seek copyright protection on their works and have tilted in the U.S. and similar jurisdictions toward attributing their inspiration to a divine spirit rather than their exact words. Welsh notes a variety of reasons why religious groups may seek copyright protection for sacred works, and the reasons can conflict with one other or pull at the competing reasons underlying copyright generally:
- Monetary Reasons: “Some religions may seek copyright protection, and later on litigate copyright infringement cases, in order to obtain money, …to provide income for the proper owner of the religious work,” or to prevent merely “copying religious texts without payment.” Welsh (2015) at 134.
- Secrecy Reasons: “Some religions use copyright law to keep their religions secret; some religions do not want to disclose their works to the general public.” Welsh (2015) at 135 (referencing Scientology as “a religion that has ‘taken extraordinary measures to try to maintain the secrecy’ of its texts.”) Other religions “seek copyright for secrecy, but secrecy to protect their students[,]…teachers and religious doctrine,” to protect against “desanctification,” and to assure “the spiritual secrecy of their teachings.” Id. at 135-36.
- Censorship Reasons: “Copyright law can be used by religious groups through censorship to silence viewpoints that oppose, criticize, or are in competition with any given religion[,]…avoid any bad publicity[,] …affect the perceived truth or perceived reputation of their religious doctrine, …squelch opposition[,] …prevent the other group from publishing edited or alternative version of their religious works by invoking copyright law[, and] …prevent[ing] not only their competitions counterarguments, but all of their arguments, making the group who censored stronger because their competition is now silenced.” Id. at 136-38.
- Doctrinal Purity Reasons: “This desire to control religious doctrine can motivate religious groups to use copyright protection to protect their religious works, even internally,” to “control the texts of their religion and maintain doctrinal purity,” and to avoid “the potential for distortions, rearrangements, and abridgements to appear…. To avoid these issues, religious groups can implement copyright law to prevent all impermissible copying and distribution of the religious works and any derivative works, and therefore maintaining their doctrinal purity.” Id. at 138-139.
The challenges that apply to asserting rights over religious names and religious texts have also moved into the realm of religious rites or spiritual practices, at least arguably. Because compilations and choreography can enjoy copyright protection, one can protect sequences of position and pose, and performances of ordered words, music, and movement. While that can be a dance, a musical, or a Super Bowl halftime show, it could arguably also be a religious rite or practice, or a spiritual exercise made up of a series of rhythmic movements.
The pros and cons, and the possibilities and problems, of such an effort are nicely illustrated in Jordan Susman’s detailed examination of Bikram Choudhury’s attempts to enforce copyrights in Bikram Yoga. There were various lawsuits in which Choudhury initially emerged with validating settlements before the 9th Circuit rejected his copyright claims in Bikram’s Yoga College of India v. Evolation Yoga, 803 F. 3d 1032, 1044(9th Cir. 2015), noting that his yoga sequences are “not copyrightable as a choreographic work for the same reason that it is not copyrightable as a compilation: it is an idea, process, or system to which copyright protection may ‘[i]n no case’ extend. 17 U.S.C. § 102(b).” As that Court stated in greater detail:
Choudhury contends that the Sequence’s arrangement of postures is “particularly beautiful and graceful.” But beauty is not a basis for copyright protection. The performance of many ideas, systems, or processes may be beautiful: a surgeon’s intricate movements, a book-keeper’s careful notations, or a baker’s kneading might each possess a certain grace for at least some viewers. Indeed, from Vermeer’s milkmaid to Lewis Hine’s power house mechanic, the individual engrossed in a process has long attracted artistic attention. But the beauty of the process does not permit one who describes it to gain, through copyright, the monopolistic power to exclude all others from practicing it. This is true even where, as here, the process was conceived with at least some aesthetic considerations in mind. Just as some steps in a recipe may reflect no more than the author’s belief that a particular ingredient is beautiful or that a particular cooking technique is impressive to watch and empowering to practice, some elements in Choudhury’s Sequence may reflect his aesthetic preferences. Yet just like the recipe, the Sequence remains unprotectable as a process the design of which primarily reflects function, not expression.
[Bikram’s Yoga, 803 F. 3d at 1040]
While this conclusion disposes (in a somewhat conclusory way) of many yoga copyright issues, other yoga intellectual property issues will be considered below as patents have been provided for processes and systems.
C. “…find out knowledge of witty inventions…”: Patents Of Natural Processes & Religious Matters
One does not often find patents being dealt with here by this author, though he has had his share of successes in a range of patent matters over the years, ranging from gasket design matters, to cell phone batteries, to other matters as well. Before turning to other matters though, let me just note something concerning patents and yoga. Although, “[i]n the United States alone, the patent authorities have issued more than 130 yoga-related patents,” the “US government has conducted a search of all patents issued and no US patents on yoga positions have been identified.” But the patent world and the religious/sacred can nonetheless intersect in different ways around the world.
For example, in the United States, there appear to be at least 23 granted patents that fit into the category of religious patents, along with a number of others that were applied for. These include an invention of some practical necessity, such as a method and apparatus for displaying the direction of Mecca on a wall or corner of a room, another that seems a bit more generalized (such as a system and method for enhancing prayer and healing rituals), and a double imputation scale, which though quite tangible in its preferred embodiment seems to plunge one into some pretty deep doctrinal waters. (“Imputed righteousness is the righteousness of Jesus credited to the Christian, enabling the Christian to be justified… Double imputation refers to the imputation of believers’ sin to Christ and the imputation of Christ’s righteousness to believers. It is closely related to the Reformed doctrine of justification by grace through faith alone. Passages like 2 Corinthians 5:21, are employed to argue for a dual imputation – the imputation of one’s sin to Christ and then of his righteousness to believers in him,” as one resource notes) Though of some interest, these inventions are religious, but not sacred since no one involved in the application claims a deity conceived or reduced such inventions to practice. (The claim that God inspired an invention is so often made that we will not linger on it here, though Richard Jones’ 2012 book on the connection between religious beliefs and the rise and development of modern science is available for those interested in further exploration).
But there are other patenting issues where the distinction between God’s and humanity’s creative contribution are a bit fuzzier. Some South African attorneys have taken a good run at explaining that distinction by focusing on the so-called God Particle, and the difference between invention and discovery:
The God Particle (Higgs boson) is a subatomic particle that imparts mass to all matter in the universe and it is believed to have originated during the Big Bang. … The Higgs boson has been labelled the God particle because of its effect in the creation of the universe…
Discoveries vs Inventions
Inventions: When you invent something that does not exist.
Discoveries: When you discover something that already exists.
Invention and discovery do not bear the same meaning. Invention is purely original and is the result of your brain work but the discovery has led people to know about it now, but it has existed well before it was found. Discoveries cannot be patented. When something is invented, it is made public so that people can use it and maybe even make money from it, but when something is discovered, it is made public so that people could understand it, and know about it.
Applying those reasonable distinctions in real cases about whether to grant a patent becomes hard, however, as the American Bar Association itself noted:
It is easy to understand why judges might seek to prevent anyone from patenting laws and phenomena of nature. Nature furnishes the essential building blocks on which every technological innovation rests. Since it cannot be invented around and because it is unlikely that the first to make a discovery will have the technical capacity and resources to fully exploit it, patents on nature risk preempting further innovation. As Justice Breyer put it, “sometimes too much patent protection can impede rather than ‘promote the Progress of Science and useful Arts.’”
Yet, as expensive treasures hunters have long proved, one often needs the lure of financial reward to entice searching for discoveries as much as, or more than, the pull of profits to inspire invention. That is part of the reason the ABA proposed in late 2019 loosening U.S. patentability standards.
Dreyfuss, Nielsen, and Nicol, in Patenting Nature—A Comparative Perspective, 5 Journal of Law and the Biosciences 550 (2018), had actually made a similar proposal over a year earlier. That trio argues that the United States Supreme Court’s Mayo Collaborative Services v Prometheus Laboratories, 566 U.S. 66 (2012), and Association for Molecular Pathology v Myriad Genetics, Inc., 569 U.S. 576 (2013), decisions and their progeny are too rigid and that an Australian more “nuanced” approach to such matters is worth a look. For them, Australian patentability concepts they urged Americans to emulate let one concede that a patentee had simply “discerned” the answer to “what hath God wrought?” (a phrase of fine inventive pedigree) yet allow such applicant a patent under a multi-factor test that balanced monopolization with innovation and social benefit. Dreyfuss, Nielsen, and Nicol (2018). Of course, the patenting of natural phenomena only connects one to the sacred if one assumes that some deity originally created the phenomena, or set in motion the process that caused it to occur. (Also, I was fascinated by Isaacson’s The Code Breaker: Jennifer Doudna, Gene Editing, and the Future of the Human Race, and recommend it to all interested in the science and scientists that provide the substance behind such legal debates).
Two other emerging patent areas may even more directly implicate Creator connections. First, artificial intelligence and other developments put within humanity’s invention records, as Aisling McMahon describes it (in Patents, Governance and Control: Ethics and the Patentability of Novel Beings and Advanced Biotechnologies in Europe, 30 Cambridge Quarterly Of Healthcare Ethics 529 (2021)), “the potential for the development of ‘novel beings,’” defined as technologies which may in the future display something akin to ‘consciousness…and/or which display characteristics of agency akin to human agency or ‘will.’” As McMahon (2021) notes, those creating sentient beings could arguably become patent holders in Europe and elsewhere despite morality provisions under European patent law and biotechnology directives. Without change and examination of such laws, this could give such patent holders the right to restrict or foreclose the evolution of such technology and development of such beings in a way unseen when early sentient beings were allowed by their creator to be fruitful and multiply, and to exercise will contrary to that creator’s hopes and plans. Second, patent holders may not have been present when “God created …every living creature that moveth” but the possibility exists that genetic technologies might allow recreation of extinct species, as McMahon & Doyle, Patentability And De-Extinct Animals In Europe: The Patented Woolly Mammoth?, 7 Journal of Law and Biosciences 1 (2020) notes. Should one be given a patent to re-create the previously created? Again, there seems no absolute ban on that under current patent laws, and a real Jurassic Park would be big business, as those authors state. But in many ways, the pre-extinct history of such creations might in some sense be considered some most invalidating prior art.
Where in the name of God this patent stuff will end up is entirely unclear – and really interesting. Perhaps we should conclude with the notion (from 1 Timothy 3:9-10) of “…Holding the mystery of the faith in pure conscience. And let these also first be proved.” I am told that means, in context, that certain leadership roles require one to have faith but also pass tests. Sounds like a good approach for those moving forward in such cutting-edge technologies raising such important questions. Makes the trademark and copyright questions seem easy.