Authors: Gerald Flurry
Section 107 of the Copyright Act says that “the fair use of a copyrighted work, including such use by reproduction in copies …, for purposes such as criticism, comment, news reporting,
teaching
(including multiple copies for classroom use), scholarship, or research, is
not
an infringement of copyright.” Section 107 then notes four factors for a court to consider in determining whether or not the copied material is protected by fair use:
1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value of the copyrighted work.
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We felt like all four of these determinative factors leaned in our favor. On the first point, without question, the
PCG
had distributed
Mystery
for non-profit religious and educational purposes. We offered the book absolutely free upon request. Regarding the nature of the work, since
Mystery of the Ages
is a factual account of Mr. Armstrong’s teachings, as opposed to a work of fiction, that generally broadens the scope of fair use. The third factor considers whether the amount copied is reasonable in relation to its intended purpose. And since we use the entire text for teaching and educational purposes, we felt it reasonable to copy all of it. Finally, on the effect our printing had on the potential market and value of the book, there was none. The
WCG
didn’t value it—nor were they looking to market it. Indeed, they wanted to destroy it and keep it out of circulation forever. That was their story, judging by the huge amount of written statements and oral communication that circulated inside and outside the church.
For litigation, however, they invented another story.
The “Annotated” Version
Joseph Tkach Jr. wrote
Transformed by Truth
during the first six months of 1997—the same time period litigation got off the ground over Mr. Armstrong’s writings. After completing a final draft for his book, he submitted it to the church’s board and they all gave it a liability reading. According to Tkach, after a few minor changes to the text, the board approved its publication. When asked at his deposition if the board agreed with the text of the book, Tkach said “they all felt it was accurate.”
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We then asked him if he felt it was his “Christian duty” to keep
Mystery of the Ages
out of print. To which he responded, “
Not necessarily.”
12
A ridiculously lengthy exchange then followed as we tried to get Mr. Tkach to admit he meant what he said in his own book! During the exchange, Tkach did say it was important for his church not to distribute “lies.” But he also said the
WCG
had an obligation to protect the church’s “assets,” including the copyrights in question.
13
Besides that, he informed us that the
WCG
actually had plans
to use
Mystery of the Ages
again! Apparently, there had been many discussions about producing an annotated text that would correct all the “errors” in the original
Mystery of the Ages
. Mr. Tkach could not remember when those discussions began, whether it was before the lawsuit started or after. Greg Albrecht admitted in his testimony that it was “probably
after.”
14
Tkach also admitted the annotated version would not be a “high priority” since the church was in the midst of massive cutbacks and downsizing.
15
The Advisory Council of Elders
Three months after Tkach and Albrecht enlightened us about the annotation “project,” the
WCG
formalized the pronouncement in
made-for-litigation
minutes from an Advisory Council of Elders (
ACE
) meeting. Prior to the lawsuit’s beginning, keep in mind, there was not one shred of evidence indicating any intention of ever using
Mystery of the Ages
again. All the evidence—a mountainous pile of it—pointed to the fact that Mr. Tkach’s “Christian duty” statement accurately reflected the church’s position. So without any pre-1997 evidence to support their “big plans” for the literature argument, they had to make this up as the litigation unfolded.
This is what prompted these hilarious minutes from their December 4, 1998, Advisory Council meeting:
It was and is a common practice for the
WCG
or the college to retire works from publication, or to rewrite them, either to express the concepts contained therein differently, express facts more accurately, or because of a change in doctrine. W
CG
and the college would dispose of excess inventory copies of such works, but archive, research and personal copies would be retained. This procedure was in accordance with the long-standing custom, practice and procedure of
WCG
and the college.
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Notice how they equate the occasional modifications Mr. Armstrong made to the church’s teachings to Tkachism’s wholesale destruction of our entire belief system. It’s like saying a homeowner’s routine maintenance around the house is equivalent to one who later inherits the house, demolishes it, and then obliterates and hauls off the very foundation on which it stood. “We are changing at the very core of our church,” Mr. Tkach said in 1997.
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So it would not be correct to say,
as it says in those minutes,
that the church merely “
modified
its doctrines” after Mr. Armstrong died. When Joe Tkach Jr. begins his book by saying the
WCG
has “renounced” Mr. Armstrong’s “unbiblical teachings” and “embraced Christian orthodoxy,” those are not the words of a
modifier,
so to speak. Mr. Tkach said the
WCG
changes were so “radical” and “unprecedented” that evangelicals at first had a hard time
believing it was even true
.
18
In
Christianity Today,
Ruth Tucker said she was “taken aback” by the
WCG
’s transformation—a journey that turned a “heretical sect into an evangelical denomination.”
19
According to the Advisory Council minutes,
Mr. Armstrong explained many times how his doctrinal understanding changed in many respects over the years as he came to understand new biblical truths. In fact, he chided other churches over the years for being committed to creeds that prevented them from accepting new truth and changing.
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As if Mr. Armstrong would have fully supported their “modifications.” This is the same despicable reasoning we heard in the late 1980s when the church started dismantling Mr. Armstrong’s teachings.
Why, we’re just doing the same thing Mr. Armstrong would be doing today if he were alive
. Back then it was at least more plausible, albeit deceitful. But to rehash that lame excuse
in 1998
after so much had been written about this unprecedented transformation? In his book, speaking on behalf of the
WCG
, Tkach said, “Today we reject what is well known as ‘Armstrongism,’ that is, adherence to the teachings of Herbert W. Armstrong in lieu of biblical evidence to the contrary.”
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That doesn’t exactly leave you with the impression they are just following Mr. Armstrong’s example of modifying a few teachings here and there.
The minutes go on to list a few of the doctrines Mr. Armstrong changed (as if that somehow justified their repudiation of “Armstrongism”). And because he sometimes retired or rewrote church literature to more accurately reflect a new understanding in doctrine, it naturally followed that Tkachism was doing the exact same thing.
In fact, it has been the intent of
WCG
to consider revising, editing, or republishing
MOA
, and other works to which it holds copyright, in some annotated or revised form, and to distribute the same either free of charge, or, if selling them, at a reasonable price as an income producing item.
Retiring
Mystery of the Ages
was only temporary, you understand, “until appropriate revisions could be effectuated.”
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Judge Letts’s Ruling
The preliminary injunction hearing was set for the afternoon of February 8, 1999. That morning, before we appeared in court, my father told Dennis Leap and me, “Although I don’t know exactly what will happen today, I feel strongly that something positive will result.”
It was my second appearance in court across the aisle from the
WCG
’s representatives—and it was every bit as memorable as the first encounter. The five of us arrived first—our two attorneys carrying three-ring-binders. The rest of us had notepads and pens. Moments later, after we settled in,
WCG
reps, together with their Hollywood lawyers, came bounding through the doors—wheeling in giant file boxes, carrying huge books and binders. (And funnier than that, they never once touched the boxes of documents during the hearing.) They looked like they were ready for all-out war. But in Judge Letts’s courtroom, they were barely able to fire off one round. Not but five minutes into the hearing, both sides knew where the judge stood.
“First, I don’t think this was work for hire,” the judge said. “I think that it’s rather clear that … Mr. Armstrong was not an employee and that this was not work for hire.”
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He went on to say that he thought the question of who owned the copyright was a “little more complex” than either side had explained in their briefs. He asked that if the copyright transfers to someone, who then repudiates the teachings of the book, would that change the nature of the copyright? Could the successor then actually use the copyright to abolish the book, as opposed to protecting the ideas of the author? In the judge’s view, the answer was
NO
. In such a scenario, the judge wondered if the copyright could even exist anymore! But even if it did, he said the copyright laws would not allow the
WCG
to suppress a written work.
In his judgment, our use of
Mystery of the Ages
was “fair use” under the Copyright Act simply because the book was not otherwise available. Regarding the “annotated version,” the judge said, “I cannot imagine that if somehow there were a copyright on the Bible itself that somebody could buy that copyright and simply then say,
I’ll only permit my annotated version of that to be in use
.
”
In fact, as he later brought out, should they pursue the annotated project further, a case could be made that our distribution of the original work would actually
increase
the market for their annotated version.
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As to the prospect of the
WCG
licensing the works to us, the judge also expressed this view: “If you are in a circumstance where you’re simply saying they can’t be used, I don’t think there’s any question about that.”
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In other words, it would be futile to seek licensing from caretakers who want to destroy the work. The judge never bought into their litigation-driven plan to “use” the works again.
Thus, true to his prediction at the outset of the case, Judge Letts denied the
WCG
’s motion for preliminary injunction on February 8, 1999—just two days shy of the two-year anniversary of the lawsuit’s inception. In his written order on April 20, he said Mr. Armstrong had unilateral power within the
WCG
, that the church did not control Mr. Armstrong’s work, and that Mr. Tkach Sr. disavowed
Mystery of the Ages
as a religious work, destroyed existing copies of the book and refused requests for permission to reprint it. Judge Letts also found that “the
WCG
has no plans to print or use
MOA
as originally published” and that “although the
WCG
has indicated that it might publish an ‘annotated’
MOA
in the future, the
WCG
has not contracted with or otherwise arranged to have anyone write the ‘annotated’
MOA
.”
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In his legal conclusions, the judge determined that
Mystery of the Ages
was not a “work made for hire” and that the
PCG
’s distribution of the work was protected under the “fair use” doctrine of the copyright law.
As we listened to everything Judge Letts said in our favor during that February hearing, we were actually anxious for him to conclude so we could rush outside the courtroom and celebrate. Even then, after the proceeding, we managed to subdue our jubilation in the hallway, so as to not offend the
WCG
representatives. But once those elevator doors shut and we were all alone—“WOOOOOHOOOOOOOO!!!” As our two attorneys high-fived each other, we couldn’t help feeling like we had witnessed something truly historic for our work.
At church services that weekend, on February 13, my father heaped praise on the judge for grasping the spirit and intent of the copyright law. Certainly, Mr. Armstrong
NEVER
would have dreamed of using that law to prevent
Mystery of the Ages
from being distributed. The copyright law, after all, is supposed to protect an author’s writings, not destroy them. At the end of his sermon, my father said,
So we have to prophesy again and get this most important book that there is in this world, after the Bible, out to the largest audience possible, brethren. That’s what God inspired Mr. Armstrong to write. That’s what He wants us to do and what a glorious calling it is, to be able to do this work, and show the world how to have real peace and joy and happiness.
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