Soc'y of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory of Denver

United States Court of Appeals For the First Circuit No. 11-1262 SOCIETY OF THE HOLY TRANSFIGURATION MONASTERY, INC., Plaintiff, Appellee, v. ARCHBISHOP GREGORY OF DENVER, COLORADO, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge] Before Torruella, Circuit Judge, Souter,* Associate Justice, and Boudin, Circuit Judge. Chris L. Ingold, with whom Ingold Law, LLC, Harold R. Bruno, III, and Robinson Waters & O'Dorisio, P.C., were on brief for appellant. Kristen McCallion, with whom Lawrence K. Kolodney, Eric J. Keller, Fish & Richardson P.C., Mark A. Fisher, and Duane Morris LLP, were on brief for appellee. August 2, 2012 * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. TORRUELLA, Circuit Judge. Interpretations and studies of theological texts have led to countless disputes throughout the ages. This appeal concerns a different form of conflict arising from one monastery's translation of certain ancient religious texts, and another monastery's unauthorized use of verbatim or near-verbatim copies of such texts on its Orthodox faith-devoted website. Seven, a number both religiously and factually significant, is the quantity of works the former monastery contends the latter infringed. The parties here let fly a legion of arguments and defenses as to why ultimate judgment should rest in their favor. We have pored over the voluminous record before us and the district court's orders granting summary judgment to the former monastery. See Holy Transfig. Monas. v. Archbishop Gregory, 754 F. Supp. 2d 219 (D. Mass. 2010) ("Holy Transfiguration II"); Holy Transfig. Monas. v. Archbishop Gregory, 685 F. Supp. 2d 217 (D. Mass. 2010) ("Holy Transfiguration I"). We arrive at the same conclusion as the district court and hold that summary judgment was properly granted as to each of the former monastery's claims. We accordingly affirm the decision of the district court. I. A. Background1 A Tale of Two Monasteries 1 We construe "the record in the light most favorable to the nonmovant and resolv[e] all reasonable inferences in the party's favor." Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002)) (internal quotation mark omitted). -2- Plaintiff-Appellee Society of the Holy Transfiguration Monastery, Inc. (the "Monastery") is an Eastern Orthodox monastic order located in Brookline, Massachusetts. It was founded in the early 1960s and incorporated as a non-profit organization. In 1965, the Monastery began a spiritual affiliation2 with the bishops of the Russian Orthodox Church Outside of Russia ("ROCOR"). Although the Monastery concedes it commemorated the bishops of ROCOR for a time (until 1986 to be precise), it considers itself an independent entity in both its organization and governance. Stated differently, the Monastery was not formed at the order or direction of ROCOR or any bishop a part thereof; instead, its formation occurred prior to its spiritual affiliation with ROCOR. On December 8, 1986, the Monastery ceased its commemoration of the ROCOR bishops, thus ending its spiritual affiliation with ROCOR. Since the Monastery's formation, its members, consisting of approximately thirty-five monks, have worked on translating religious texts, including services, psalms, and prayers, from their original Greek into English. The cardinal works at issue (the "Works") consist of (1) the St. Isaac Work,3 (2) the Psalter, 2 The record reflects that "spiritual affiliation," often used interchangeably with the terms "ecclesiastical jurisdiction" or "in communion," is a term used when a monastery agrees with the particular confession of faith of a bishop or group of bishops and enjoys their blessing during that time. 3 The full title of the St. Isaac work is "The Ascetical Homilies of St. Isaac the Syrian." -3- (3) the Octoechos, (4) the Pentecostarion, (5) the Dismissal Hymns, (6) the Prayer Book, and (7) the Horologion.4 Though the Works and their corresponding translations are of ancient texts, they became in demand over the years amongst parishes due to an increasing need for English versions of Orthodox liturgical texts for liturgies conducted in English. The Monastery obliged such requests, but on a limited basis. provided copies of its then-in-progress For instance, it Dismissal Hymns to approximately twelve parishes with specific instructions that no copies be made. Its limited distribution purpose was two-fold: the Monastery hoped to receive feedback as to the quality of the translations for those parishes seeking a linguistically-friendly English-language religious text, and at the same time, help to meet the growing need for religious texts in English language religious services. Not all were satisfied with the Monastery's vocation. In the late 1970s (before the Monastery's termination of its spiritual affiliation with ROCOR), Defendant-Appellant Archbishop Gregory (the "Archbishop"), a member of 4 the Monastery at that time, The respective known dates of registration for these Works are January 3, 1986 (St. Isaac Work), February 24, 1986 (Psalter), June 24, 1986 (Octoechos), June 24, 1986 (Pentecostarion), December 10, 1987 (Dismissal Hymns), November 16, 1988 (Prayer Book), and December 3, 1997 (Horologion). Of the seven, four works were registered as published works (St. Isaac, Horologian, Prayer Book, and Psalter), and three, as unpublished works (Octoechos, Dismissal Hymns, and Pentecostarion). -4- obtained ROCOR's permission to leave the Monastery and move west to Colorado where he formed his own monastery, the Dormition Skete. Throughout the years, the Dormition Skete has dedicated itself to painting traditional Byzantine Orthodox icons for both church and private use. It is only composed of a few members; those relevant to this dispute include the Archbishop and Father Peter, a priest monk5 in the order who, true to his apostolic name, has served and supported the Archbishop in various capacities. In addition to forming the monastery, the Archbishop created a website devoted to the Orthodox faith, www.trueorthodoxy.info (the "Website"), over which he has conceded to having authority and ownership. The asserted purpose of the Website is "to share information about the Orthodox Christian religion with users of the internet." Created on February 8, 2005, religious works have since been posted free-of-charge to the Website for non-profit, educational purposes. Of relevance to this dispute are a posting of a portion of the St. Isaac work, done sometime in 2005, and postings of the remaining six Works in August 2007. To perform such postings, the Archbishop relied on Father Peter, who helped build, design, and program the Website. 5 At deposition, Father Peter defined the position of "priest monk" as a monk (a member of a monastic order who has withdrawn from the world for religious reasons and assumed certain vows) who also performs religious services. -5- Like many a missionary before him, the spreading of religious teachings religious texts via (here, the through internet) the posting brought of translated trouble upon the Archbishop -- trouble not isolated to this dispute alone. On January 23, 2006, the Monastery filed a lawsuit in the U.S. District Court for the Eastern District of Michigan against the Archbishop and his publisher at the time, Sheridan Books, Inc. The Monastery alleged copyright infringement of two works, the St. Isaac work (at issue on this appeal)6 and the St. Andrew work (not at issue on this appeal).7 The parties ultimately entered into a Settlement Agreement on July 24, 2006. Pursuant to the terms of this agreement, the court dismissed the Michigan lawsuit with prejudice. Notably, the Archbishop, in settling, agreed to the following: [T]he Monastery is the owner of the copyrights in and to the translations of [the St. Andrews work and the St. Isaac work] . . . . [The Archbishop] further agree[s] that, in consideration of the overall settlement of the dispute concerning the Works, [he] will not challenge the validity of the Monastery's copyright and/or the registrations in and to the Works at any time in the future. . . . Archbishop Gregory warrants and represents that . . . no copy, duplicate, transcript, reproduction or replica, of any 6 The electronically posted (and now contested) St. Isaac work consisted of one of the homilies from the Ascetical Homilies of Saint Isaac, specifically, Homily 46. 7 The full title of the St. Andrew work is "The Life of Saint Andrew the Fool-For-Christ of Constantinople." -6- portion of the St. Isaac Work has been or will be printed or published by or for Archbishop Gregory and that Archbishop Gregory asserts that he does not have any knowledge of the existence of any copy, duplicate, transcript, reproduction, or replica of any portion of the St. Isaac Work in any medium, and will not assist in the creation of copy [sic], duplicate, transcript reproduction or replica of the St. Isaac Work in any medium, at any time in the future. (Emphasis added.) Despite this agreement, the contested portion of the St. Isaac work resolution remained of the on the Michigan Dormition dispute, Skete's and in Website August post 2007, a collection of the remaining six Works also was posted to the site. B. Seeking Secular Judgment The Monastery took action. On December 28, 2007, it filed the Complaint in this action alleging infringement of the Monastery's copyrights in the Works and breach of the Settlement Agreement for the continued display of portions of the St. Isaac work. In response, the Archbishop promptly removed what he believed at the time to be the allegedly infringing material from the site. He then filed a motion to dismiss the Monastery's Complaint on February 14, 2008, which the court subsequently denied. When his efforts proved unsuccessful, the Archbishop answered the Monastery's Complaint on April 24, 2008. In his Answer, the Archbishop admitted that the Works, including a portion -7- of the St. Isaac work, were available on his Website. However, he denied both the Monastery's claim of ownership to the Works' copyrights, as well as its claims of copyright infringement. The Archbishop the also raised several defenses, including that Monastery's Works were made for hire for ROCOR; the Works had been published without copyright notice and were in the public domain; the Archbishop made fair use of the Works; and the dispute was a Church matter, best left to a different hierarchy of laws. On October 30, 2009, each of the parties filed cross motions for partial summary judgment. The Monastery claimed it was entitled to partial summary judgment because the Archbishop had breached the parties' prior Settlement Agreement by posting a portion of the St. Isaac work on his Website, and because the Archbishop's posting of the work, in and of itself, constituted copyright infringement. The Archbishop riposted, challenging the Monastery's ownership of copyrights in the Pentecostarion, the Octoechos, the Psalter, and the St. Isaac works, and asserting that ROCOR was the true owner of the copyrights at issue. Staying firm in his position that the Monastery lacked any legal right to enforce ROCOR's copyrights against the Archbishop, the Archbishop argued there was no genuine issue of material fact for the court to resolve. The district court found merit to the Monastery's motion. Holy Transfiguration I, 685 F. Supp. 2d at 229. -8- It granted partial summary judgment in favor of the Monastery as to both the breach of contract claim and allegation of copyright infringement of the St. Isaac work on February 18, 2010. Id. at 223-26. It in turn denied the Archbishop's motion, noting that he proffered no valid defense to the Settlement Agreement's enforcement, failed to establish a fair use defense, and could not show a valid ownership claim in the Works. Id. at 223-24, 226-29. Regarding the latter finding, the district court noted that the Archbishop's contention that ROCOR was the true owner of the contested copyrights failed, as the ROCOR documents on which he relied had not been authenticated; the court also expressed misgivings as to whether the Archbishop had standing to raise an ownership claim on behalf of ROCOR. Id. at 228-29 & n.17. On July 23, 2010, the Monastery moved yet again for summary judgment, this time on its surviving infringement claims against the Archbishop. The Monastery alleged that the Archbishop infringed its copyrights in the remaining six Works, specifically, the Psalter, the Prayer Book, the Horologian, the Pentecostarion, the Dismissal Hymns, and the Octoechos. The Archbishop opposed the motion. He asserted that the Monastery was not the owner of the copyrights at issue; the Works were in the public domain, having been published without copyright notice; and the Works lacked originality. Holy Transfiguration II, 754 F. Supp. 2d at 224-26. He also asserted a fair use defense, as -9- well as a defense under the Digital Millennium Copyright Act ("DMCA"), the latter of which limits the liability of internet service providers ("ISP") for copyright infringement by their users. See id. at 227-29; see also 17 U.S.C. §§ 101, et seq. The district court again found in favor of the Monastery. Holy Transfiguration II, 754 F. Supp. 2d at 230. As before, the court rejected the Archbishop's argument that ROCOR was the true owner of the copyrights and found no merit to his fair use defense. Id. at 224, 227-28. It additionally held that the Archbishop's evidence in support of his public domain argument was "neither clear nor persuasive," id. at 225, and found that "[t]he distribution by the Monastery of the Works to a select group of coreligionists for restricted purposes constitutes a limited publication as a matter of law," which does not extinguish a copyright, id. The district court further determined that the Archbishop failed to show the Works lacked originality, as he provided no evidence to support his argument or to counter the Monastery's "detailed side-by-side comparisons, illustrating the significant differences between the Monastery's Works and those" the Archbishop referenced as illustrating the lack of originality between the Monastery's translations and other versions. 226. Id. at Lastly, the district court deemed the Archbishop's eleventh hour DMCA safe harbor defense, not previously raised in either his Answer or amended Answer, waived -10- and additionally noted the questionable application of the DMCA to the Archbishop. Id. at 228-29. The Archbishop now appeals the district court's grants of summary judgment. The Archbishop reasserts for this court many of his prior arguments, including that ROCOR, not the Monastery, owns the copyrights to the contested Works; the Works lack originality; the Works were placed in the public domain without copyright notices; the Archbishop's use of the Works was fair; and the Archbishop is sheltered from liability pursuant to DMCA's safe harbor provision, and if he is not, he holds neither direct nor vicarious liability for the alleged infringement. additionally scatters the following claims The Archbishop amidst his prior arguments: the Archbishop was not the alleged direct infringer of the Works; the district court improperly determined that the Archbishop lacked standing to challenge the Monastery's ownership of the St. Isaac work; and the Monastery's course of engaging in litigation constituted an improper attempt to create a monopoly. We begin our journey through the intricacies of copyright law applicable to this dispute. II. Discussion We lay the foundation of the applicable standard of review. Summary judgment is properly granted where the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." -11- Fed. R. Civ. P. 56(a). We examine the district court's grant of summary judgment with fresh and searching eyes, Airframe Sys., Inc. v. L-3 Commc'ns Corp., 658 F.3d 100, 105 (1st Cir. 2011), keeping their lenses tinged towards "construing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party's favor." Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000). To establish copyright infringement, a plaintiff must concurrently proceed down two roads and "prove two elements: '(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'" Situation Mgmt. Sys., Inc. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1st Cir. 2009) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). We address each prong's requisites, i.e., ownership and copying, and set off first upon the ownership path. A. Validity of Ownership The Copyright Act provides that copyright protection extends to the individual who actually created the work. See 17 U.S.C. § 201(a) ("Copyright in a work . . . vests initially in the author or authors of the work."). To show ownership of a true copyright, "a plaintiff must prove that the work as a whole is original and that the plaintiff complied with applicable statutory formalities." Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st Cir. 1995); see also T-Peg, Inc. v. Vt. Timber Works, -12- Inc., 459 F.3d 97, 108 (1st Cir. 2006) (the claimant bears the burden of proving a valid copyright and its infringement). It is generally accepted that "a certificate of copyright registration constitutes prima facie evidence of copyrightability and shifts the burden to the defendant to demonstrate why the copyright is not valid." Lotus, 49 F.3d at 813 (emphasis in original) (quoting Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106 (9th Cir. 1990)) (internal quotation mark omitted). The Monastery has met its prima facie burden of establishing ownership of the copyrights to all the Works, as it holds a certificate of registration issued by the U.S. Copyright Office for each religious text.8 See 17 U.S.C. § 410(c); Situation Mgmt. Sys., 560 F.3d at 58 (stating "certificates of copyright are prima facie evidence of [a plaintiff's] copyright interests in its works"). ownership of valid Thus, it now falls to the Archbishop to carry the burden of establishing the invalidity of the Monastery's copyrights. See Lotus, 49 F.3d at 813; CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1513 (1st Cir. 8 According to the record, the St. Isaac, Psalter, Prayer Book, and Horologion Works were registered with the U.S. Copyright Office as published works within approximately five years of their first publication dates. See 17 U.S.C. § 410(c); Brown v. Latin Am. Music Co., 498 F.3d 18, 23 (1st Cir. 2007) (stating "a registration within five years of first publication is accompanied by a presumption of validity of the copyright"). As previously noted, the remaining works, the Pentecostarion, Dismissal Hymns, and Octoechos, were registered with the U.S. Copyright Office as unpublished works. -13- 1996). Although the Archbishop sets forth several arguments challenging the Monastery's ownership of the copyrights, he fails to so bear his evidentiary burden. We address each of his ownership challenges in turn. 1. Transfer Alert: Who Owns the Copyright? The cornerstone of the Archbishop's argument is that the Monastery's works are in fact owned by a third party, ROCOR. The Archbishop argues that the Monastery was once a part of ROCOR and its secession in 1986 had the effect of transferring its copyrights in the Works to ROCOR. There are two ways under governing transfer of copyright may be effectuated. law by which a The first manner is by "an instrument of conveyance, or a note or memorandum of the transfer, [that] is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." § 204(a). 17 U.S.C. The Archbishop does not allege, nor does the record reveal, any writing or instrument by the Monastery showing such an intent to transfer ownership of the Works' copyrights to ROCOR or another entity. Because there is no signed writing or instrument establishing a transfer of copyright to ROCOR, we turn to the second means of copyright transfer, i.e., by operation of law, with the governing law in this case being the Monastic Statutes for Monasteries of ROCOR (the "Monastic States") and the Regulations of ROCOR (the "Regulations"). -14- The Archbishop rests the yoke of his persuasive burden on this latter means of copyright transfer. Specifically, he contends a transfer by operation of law occurred here because, pursuant to the Monastic Statutes (to which all member monasteries must agree on joining ROCOR) the Monastery expressly accepted that if it ever ceased to be a ROCOR monastery, all of its property would transfer to ROCOR. The Archbishop cites to the following language from the Monastic Statutes for support: The articles of incorporation of the monastery, convent or community must make it clear that it will always be in the jurisdiction of the Synod of Bishops of [ROCOR] and that, in case of its closing or liquidation, its possessions will be handed over to the diocese subject to the Synod of Bishops of [ROCOR], or directly to the Synod of Bishops. (Emphasis added.) The Archbishop's argument leads us into a desert of case law on the issue of copyright transfers by operation of law. See Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 963 (8th Cir. 2005) ("[T]he Copyright Act does not define the phrase 'by operation of law,' and sparse case law addresses the transfer of copyright by operation of law.") (internal quotation marks omitted); Valdez v. Laffey Assocs., No. 07-CV-4566 (BMC)(LB), 2010 WL 1221404, at *6 (E.D.N.Y. Mar. 26, 2010) (noting sparsity of case law on transfer of copyright ownership by operation of law); Brooks v. Bates, 781 F. Supp. 202, 205 (S.D.N.Y. 1991) (same). -15- Indeed, not even the Copyright Act defines what constitutes a transfer by operation of law. See Taylor, 403 F.3d at 963. The few cases addressing this question generally concern a transfer by operation of state law, with the transfers at issue typically arising from a corporate bankruptcy, foreclosure, and the like. 2010 WL 1221404, at *6. merger or dissolution, See id. at 963-64; Valdez, Such cases also focus on whether the author of the transfer provided express or implied consent to such change of ownership. at 205 (stating Taylor, 403 F.3d at 963; Brooks, 781 F. Supp. "transfers of copyrights by operation of law . . . depend upon circumstances which establish the author's express or implied consent"); see also Time, Inc. v. Kastner, 972 F. Supp. 236, 238 (S.D.N.Y. 1997). Thus, a transfer by operation of law is a voluntary transfer done on the part of the copyright owner to another. See Advance Magazine Publishers, Inc. v. Leach, 466 F. Supp. 2d 628, 636 (D. Md. 2006) ("[T]ransfers by operation of law are expressly limited to voluntary transfers, except in bankruptcy proceedings."). The Archbishop's argument differs from the few cases that address transfers of copyright ownership by operation of law. To begin with, the underlying law which the Archbishop asks us to interpret and apply -- ROCOR's Monastic Statutes and Regulations -contrasts with the aforementioned cases predominantly served as the guiding light. -16- in which state law Generally, the Supreme Court has cautioned that where parties "seek resolution of a church property dispute in the civil courts[,] there is substantial danger that the State will become entangled in essentially religious controversies." Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 709 (1976); see also Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church et al., 393 U.S. 440, 449 (1969) ("If civil courts undertake to resolve [church property litigation disputes triggering religious doctrine and practice] . . . the hazards are ever present . . . of implicating secular interests in matters of purely ecclesiastical concern."). must be weighed the "obvious and Against this concern legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively." Jones v. Wolf, 443 U.S. 595, 602 (1979). The Supreme Court often has echoed that civil courts may resolve church property disputes, "so long as [such resolution] involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith." Id. (quoting Md. & Va. Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368 (1970)). Where such resolution is possible, the Supreme Court has advocated a "neutral principles of law" approach, "developed for use in all property disputes." Presbyterian Church, -17- 393 U.S. at 449; see also Jones, 443 U.S. at 603; Md. & Va. Churches, 396 U.S. at 368-70 (1970) (Brennan, J., concurring). A review of the record confirms that we may apply the Monastic Statutes' plain terms without treading upon religious doctrine, church governance, and ecclesiastical laws -- territory that the Supreme Court has made clear lies beyond our civil court jurisdiction. The specific section of the Monastic Statutes that the Archbishop asks us to apply provides in part: The articles of incorporation of the monastery [here, appellee] . . . must make it clear that it will always be [under ROCOR] jurisdiction . . . and that, in case of its closing or liquidation, its possessions will be handed over to the diocese . . . ." Neutrally applying this plain language, we conclude that the Archbishop's position as to ROCOR's ownership holds little water. We first examine the Monastic Statute language to which the Archbishop expressly directs us. language in monastery's two and articles turn of first to We split the statutory its incorporation requirement clearly state that a ROCOR jurisdiction. a. Monastic Statute Requirement that the Monastery's Articles of Incorporation Expressly Affirm ROCOR Jurisdiction An examination of the Monastery's various articles of incorporation and by-laws9 does not show language to the effect 9 Most of the copies of the Monastery's by-laws and articles of incorporation in the record do not contain a date, making it -18- that, from the date of its spiritual affiliation onward, the Monastery would permanently be under ROCOR jurisdiction or that it agreed to have its property continually fall under ROCOR's dominion and control. In fact, a review of all such articles and by-laws reveals no reference whatsoever to ROCOR or to the entities' ecclesiastical affiliation. The same holds true for a review of the certificates of registration (dating from 1986, the year the Monastery ceased its spiritual affiliation with ROCOR, on through 1997) for each of the respective Works. Each certificate expressly lists under Name of Author, "Holy Transfiguration Monastery," with no mention of or reference to ROCOR. The absence of a clear or implicit agreement on the Monastery's part (whether in its articles of incorporation, by-laws, the Works' certificates of registration, or otherwise) to be permanently bound by ROCOR statutory law or to relinquish title in its property to ROCOR does not constitute the type of "express or implied consent to transfer" copyright ownership that courts have held sufficient to support the finding of a transfer by operation of law. Valdez, 2010 WL 1221404, at *6; see also Taylor, 403 F.3d at 963. b. Monastic Statute Requirement that Upon Closing or Liquidation, the Monastery's Possessions Cede to ROCOR unclear as to how recent or old the various versions are and where they fall in relation to the period of the Monastery's spiritual affiliation with ROCOR. -19- The Archbishop argues that when the Monastery ceased commemorating the bishops of ROCOR, this act constituted a "closing or liquidation" Monastery's under ownership transferred to ROCOR. termination of the statutes, claims and and thus, property all of interests the were The Archbishop likens the Monastery's ecclesiastical affiliation to a corporate dissolution, merger, bankruptcy, mortgage foreclosure, or the like, the latter of which courts have held may indicate a transfer of copyright by operation of law. Cf. Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 719, 721 (9th Cir. 1984) (finding transfer of copyright by operation of law where corporation merged into another, leaving one surviving company that then transferred copyright to subsidiary); U.S. Home Corp. v. R.A. Kot Homes, Inc., 563 F. Supp. 2d 971, 976 (D. Minn. 2008) (similar); Fantasy, Inc. v. Fogerty, 664 F. Supp. 1345, 1356 (N.D. Cal. 1987) (concluding copyright transfer occurred where assets from dissolving corporation were transferred to sole shareholder). In contrast to these cases -- and even more telling, in contrast to the specific language of the statute -- the Monastery here continued to exist after it terminated its commemoration of the ROCOR bishops; it did not close, liquidate, dissolve, merge into another religious institution, or otherwise discontinue its existence. Instead, it continued to operate as it had prior to its spiritual affiliation with ROCOR, as an independent monastery. The -20- express terms of the Monastic Statutes are clear: "in case of [a monastery's] closing or liquidation, its possessions will be handed over to the diocese" (emphasis added). Because the Monastery never closed, liquidated, or otherwise ceased its existence, no such "hand[ing] over" of its possessions to ROCOR could have taken place, unless it authorized otherwise. And as we have explained, we find no such authorization or agreement in the record. c. Additional Relevant Language in the Monastic Statutes Lastly, immediately preceding the statutory language referenced and discussed above, the statute states that "[t]he possessions of a monastery, convent or community are its property and registered in its name, which is why each monastery, convent and community must take steps to become incorporated as an entity" (emphasis added). Reading this language, it seems clear that a monastery, on joining ROCOR, remains the owner of its possessions unless and until it becomes incorporated as an entity of ROCOR. Stated differently, if a monastery never so incorporates itself as dictated by the Monastic Statutes, its possessions will remain under the monastery's domain. Notably, a review of the record incorporation on the part of the Monastery. reveals no such The most the evidence shows is that the Monastery was founded in 1960 independently of ROCOR -- i.e., not at the order or request of ROCOR -- and incorporated in Massachusetts as -21- a non-profit corporation on January 12, 1961, before its spiritual affiliation with ROCOR. In 1965, the Monastery commenced its spiritual affiliation with ROCOR, but the only act it seems to have taken reflecting such an affiliation (the Archbishop pointing us to no contradictory evidence) is acceptance of an antimension,10 which the Monastery returned when it discontinued its affiliation with ROCOR. We are far from being authorities as to the weight the giving of an antimension to another religious body might hold under church law and offer no ruminations on the matter. But a review of the evidence reveals no other act or document confirming that the Monastery reincorporated itself under ROCOR law. The giving of a consecrated cloth does not, under civil law, ring of the type of alteration in corporate structure that a transfer in authority over the Monastery's possessions may properly be deemed to have occurred. In sum, with no evidence in the record showing a transfer of copyright ownership by operation of law, we hold that the Monastery, and not ROCOR, holds title to the copyrights at issue in this dispute. 2. No Notice?: No Problem The Archbishop casts his next lot and contends that certain of the Monastery's Works became a part of the public domain 10 The Monastery defines an antimension as "a cloth signed by a bishop that is kept on an altar table to indicate that the bishop has consecrated the cloth to be served on as an altar." -22- because they were published without copyright notice prior to 1989. There were three paths under the common law pursuant to which a work could be exposed to the public or enter the public domain: (1) exhibition or performance of the work; (2) limited publication; and (3) general publication. 688, 691 (1st Cir. 1979). Burke v. Nat'l Broad. Co., 598 F.2d Only one such path, however, would extinguish the creator's copyright in a work; the road to such loss was general publication. Id.; see Brown, 498 F.3d at 23. For the most part, the Copyright Act of 1976 abolished the common law of copyright, but even under the 1976 Act, general publication without notice could cause a work to enter the public domain if the copyright owner failed to register the work within five years of the date of first publication. Brown, 498 F.3d at 23; see also Charles Garnier, Paris v. Andin Int'l, Inc., 36 F.3d 1214, 1224 (1st Cir. 1994). The Berne Convention Implementation Act of 1988 transformed this legal landscape, and notice is no longer mandatory for works published after that Act's March 1, 1989 effective date. See Pub. L. No. 100-568, sec. 7, § 401(a), 102 Stat. 2583, 2857 (codified at 17 U.S.C. § 401(a)); Garnier, 36 F.3d at 1219. But the Berne Act does not apply to works published before 1989, so a work published without proper notice prior to 1989 would still become part of the public domain if the copyright owner failed to cure the defective notice in time. -23- Id. at 1224-26. On appeal, the Archbishop does not clarify whether his position is that all of the disputed Works passed into the public domain or that only some did. Moreover, he does not clarify which of the three copyright regimes -- the 1909 Act, the 1976 Act, or the Berne Act -- apply to which works. Regardless, under all three regimes, lack of proper notice definitely would not render the Works part of the public domain if there had been no "general publication" of the Works. Because the Archbishop has not established that "general publication" without notice has ever occurred for any of the disputed Works, we may reject his publicdomain claim without having to untangle the web of statutory regimes. A general publication is "when a work is made available to members of the public at large without regard to who they are or what they propose to do with it." Burke, 598 F.2d at 691. That is, a general publication consists of such a level of circulation within the public sphere that a work may be deemed "dedicated to the public and rendered common property." Id. Conversely, a limited publication "occurs when tangible copies of the work are distributed, but to a limited class of persons and for a limited purpose." Id. at 692. The Archbishop's brief arguments on appeal do little to show such a dispersal of the Works that they could be deemed to have entered the public domain. At most, the Archbishop contends -24- that the Monastery "allowed the disputed Works to pass into the public domain and provided the court with evidence of the same," and therefore, the district court erred in granting summary judgment against him. The evidence to which the Archbishop directs our attention, however, does not show the wide distribution typically associated with a general publication; instead, it simply shows the Archbishop's unsupported assertions that translations of certain Works were disseminated into the public, with a vague reference to the fact that certain Works were sent to people for use in their churches. The Monastery does not contest this latter proposition. In fact, it concedes it authorized St. Nectarios Press to distribute booklets –- composed of in-progress translations of certain of the Works at issue on appeal expressly attributing copyright ownership to the Monastery –- to certain parishes for their use and editorial critiques. Any such promulgation though, according to the Monastery, was restricted and should be deemed a limited publication not requiring such notice. We agree. Delivery of these booklets to selected religious congregations for the circumscribed purpose of literary feedback rings more of a limited publication (distribution "to a limited class of persons and for a limited purpose") – than of a general publication (distribution to "the public at large without regard to who they are or what they propose to do with [the -25- work]"). Inc. v. Burke, 598 F.2d at 691; see also Warner Bros. Entm't, X One (distinguishing X Prods., between a 644 F.3d general 584, 593 (8th publication and Cir. a 2011) limited publication). The Archbishop directs us to nothing more than his own unsubstantiated contentions that certain Works were "passed around" in the public sphere for decades without notice. Even accepting this statement as true, we face the reality that not just any publication of the Works without notice will insert them into the public realm; instead, any such injection must be authorized by the copyright holder, i.e., the one effectively relinquishing its copyright. Harris Custom Builders, Inc. v. Hoffmeyer, 92 F.3d 517, 521 (7th Cir. 1996) ("A finding of forfeiture of copyright protection cannot be based on an unauthorized distribution of the work without notice because the notice requirement applies only to copies of works published 'by authority of the copyright owner,' pursuant to § 401(a)."); see also Copyright Act of 1976, Pub. L. No. 94-553, § 401(a), 90 Stat. 2541, 2577 (amended 1988) ("Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed copies . . . ." (emphasis added)); Cipes v. Mikasa, Inc., 346 F. Supp. 2d 371, 374-75 (D. Mass. 2004); Zito v. Steeplechase Films, Inc., 267 F. Supp. 2d 1022, 1026 (N.D. Cal. -26- 2003) (citing 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 4:04 at 4-22 to 4-23 (2002)) (hereinafter 1 Nimmer). Here, the only copyright holder that could have authorized such publication without notice is the Monastery. We find no evidence of such authorization in the record, nor does the Archbishop direct us to any material showing to the contrary.11 Because any authorized publication of the Works that took place was only to a select group (specific religious congregations) for a particular purpose (editorial feedback), only a limited publication took place. Thus, the Monastery did not lose its copyright ownership via a general publication. If any copies of the Works were circulated outside the targeted circle of parishes, it was unauthorized and did not affect the Monastery's ownership. 3. Originality of the Works The Archbishop next asserts that the Works here were not original, and therefore, not copyrightable.12 See Johnson v. 11 The Monastery points to the Archbishop's undeveloped references to booklets lacking a copyright notice during the course of this dispute, but which he contended supported the conclusion of a publication without notice. The Monastery counters the Archbishop's argument with a sworn affidavit from the publisher of St. Nectarios Press stating that the "versions" the Archbishop references are inaccurate copies of those actually distributed to the public. Such evidence falls far short of supporting the conclusion that the Monastery authorized publication without notice of the underlying Works and relinquished its copyright. 12 The Archbishop brings additional challenges to the Works' originality. Because these arguments better fall into the analytical category of whether copying of the Works occurred, we turn to these points infra. -27- Gordon, 409 F.3d 12, 17 (1st Cir. 2005) (to establish ownership of a valid copyright, a "plaintiff must show that the work, viewed as a whole, is original"); Lotus, 49 F.3d at 813 (showing ownership of a true copyright requires that a plaintiff "prove that the work as a whole is original"). Principally, the Archbishop alleges that the underlying Works are derivative of other works, that is, they are merely a commixture of various ancient religious works that had previously been translated into English, with the Monastery making only "minor edits," "insignificant changes," or "negligible additions or subtractions" to the translations it relied upon. To bolster this argument, the Archbishop affidavits from a colleague, Bishop John.13 proffers The Bishop's sworn statements compare various texts to the Works and claim that the former texts clearly demonstrate the duplicative nature of the latter. Thus, so the Archbishop postulates, because the Monastery's translations are nothing more than a nearly identical, cobbling together of already translated religious texts, the Monastery cannot claim copyrights to the contested Works. The Monastery retorts that its translations are both unique and entitled to copyright protection, citing to the Copyright Act's express acknowledgment of the copyrightability of 13 According to his sworn affidavit, Bishop John is "a hierarch in the Genuine Orthodox Church of America," who "was ordained to the holy priesthood by Metropolitan Valentine, First Hierarch of the Russian Orthodox Autonomous Church" and "[f]or more than 20 years . . . ha[s] been a student of Orthodox Christianity." -28- derivative works. 17 U.S.C. §§ 101, 103. Moreover, it notes that courts repeatedly have recognized the validity of copyrights to works that the Monastery claims are comparative to those at issue here. See, e.g., Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 97 (2d Cir. 2002) (citations omitted) (recognizing copyrightability of translations of religious texts). The Copyright Act provides that "[c]opyright protection subsists . . . in original works of authorship." 17 U.S.C. 102(a). Assessing whether a work is original is a matter of law. Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n.5 (1st Cir. 2001). Courts assessing the applicability of the Copyright Act's protections to allegedly unique works frequently note that the "originality" bar is set quite low. 345 ("[T]he requisite level of See, e.g., Feist, 499 U.S. at creativity [required to show originality] is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark . . . ."); Universal Furniture Int'l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 430 (4th Cir. 2010) ("Establishing originality implicates only a light burden."). The Copyright Act makes clear that translations may be original and copyrightable, despite being derivative of another product. upon See 17 U.S.C. § 101 ("A 'derivative work' is a work based one or more preexisting works, such as a translation . . . ."); id. § 103 ("The subject matter of copyright -29- as specified by section 102 includes compilations and derivative works . . . .") (emphasis added). The originality standard for such derivative works is, as set forth above, far from a high one. Specifically, courts have held there is a "'minimal,'" "'low threshold,'" Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982) (quoting Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980)), that is "modest at best," Thomas Wilson & Co. v. Irving J. Dorfman Co., 433 F.2d 409, 411 (2d Cir. 1970), for establishing compilation or derivative work. have two responses to the the originality of a With this framework in mind, we Archbishop's argument that the Monastery's Works cannot be original or copyrightable because they are composed of an amalgamation of different English translations of religious texts. First, the law does not support the Archbishop's argument that such a derivative work or compilation cannot be copyrightable. Courts consistently have held that such works may be copyrighted provided that "there is originality in [the works'] arrangement or selection." M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 438 (4th Cir. 1986); see also Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 388 (5th Cir. 1984) ("The mere fact that component parts of a collective work are neither original to the plaintiff nor copyrightable by the plaintiff does not preclude a determination that the combination of such component parts as a separate entity -30- is both original and copyrightable." (citing 1 Nimmer §§ 3.02, 3.03)). Indeed, in a case that is at least comparable to the Archbishop's framing of the Monastery's Works, the Seventh Circuit held that flashcards containing standard, publicly-known mathematical equations and their solutions were protected under copyright law because "the arrangement, the plan and the manner in which [the equations and answers] were put together by the author, does constitute originality." Gelles-Widmer Co. v. Milton Bradley Co., 313 F.2d 143, 147 (7th Cir. 1963); see also M. Kramer Mfg. Co., 783 F.2d at 439 (citing examples of copyrightable compilations and noting that "[i]n each case the copyright depended on the fact that the compiler made a contribution - a new arrangement or presentation of facts - and not on the amount of time the work consumed").14 Thus, even if the Monastery's translations of the religious texts may be deemed nothing more than a blend of various pre-existing English versions, this, in and of itself, does not make the Monastery's gathering of such texts automatically unoriginal. Second, the record does not support the Archbishop's argument. The only evidence the Archbishop offers to show a lack of originality in the Works are Bishop John's affidavits, stating the Works contain "insignificant changes" or "negligible additions or subtractions" to other sources he has examined, assessed, and 14 Even Bishop John concedes that the Monastery "has expended some effort in their copyrighted work." -31- compared to the Works.15 However, the Monastery examined the same sources the Bishop attested to having compared with the Works. The Monastery created a detailed comparison in which it placed its translations along-side those materials cited by Bishop John, as well as the Archbishop's translations, effectively demonstrating notable differences between the Bishop's referenced texts and the Monastery's (and nearly identical similarities Archbishop's translations and the Monastery's). between the Although the comparison shows certain similarities between the Monastery's Works and those referenced by the Bishop, the differences in the same reflect a creativity in the Monastery's word usage, structure, and overall translation. Cf. Feist, 499 U.S. at 345 (stating "[o]riginality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying"). It is well-accepted that "[o]riginal, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." (citing 1 Nimmer §§ 2.01[A],[B]). Id. at 345 The evidence in the record satisfies us that the Monastery has cleared the "extremely low" 15 Bishop John's affidavits do not go into great detail as to the methodology he utilized to analyze the translations of the Archbishop's and Monastery's works, its comparison of the latter to other translations, or the process behind the selection of these other texts. -32- creativity bar. Id. We therefore affirm the district court's determination that the Monastery's Works were original and thus copyrightable. Having concluded our traversal of the ownership prong of a copyright infringement claim, we proceed to the second prong of our analysis, i.e., whether copying of the Works occurred. Situation Mgmt. Sys., 560 F.3d at 58. B. Copying A party seeking to establish copying of a work's original elements must make a dichotomized showing. first must factually establish, The copyright holder whether via direct or circumstantial evidence, that the alleged infringer copied the protected work. Yankee Candle, 259 F.3d at 33. Secondly, the holder must show that the copying was so flagrantly extreme that the allegedly infringing and copyrighted works were, for all intents and purposes, "'substantially similar.'" Id. (quoting Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir. 2000)); see also Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009). It is accepted that "[p]roof of '[b]oth species of copying [is] essential for the plaintiff to prevail.'" Airframe Sys., 658 F.3d at 106 (quoting 4 Nimmer § 13.01[B], at 1310 (2011)) (hereinafter 4 Nimmer). Thus, if a plaintiff cannot show that factual copying occurred but can show such copying rendered the works substantially similar, his infringement claim will fail; likewise, if a plaintiff satisfies the factual copying -33- prong, but cannot show that such copying produced a substantially similar result, denial of his infringement claim will be warranted. Id. (citing Creations Unltd., Inc. v. McCain, 112 F.3d 814, 816 (5th Cir. 1997); 4 Nimmer § 13.01[B], at 13-10)). We commence our binary analysis. 1. Actual Copying Proving actual copying by direct evidence is generally a difficult task, as it is the rare case in which the specific act of copying was witnessed, observed, or recorded. See Johnson, 409 F.3d at 18 ("Plagiarists rarely work in the open and direct proof of actual copying is seldom available."). For this reason, parties typically rely on circumstantial evidence to prove that the defendant had access to the protected work and that the resulting product, when fairly compared to the original, was sufficiently similar that actual copying may properly be inferred. Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir. 1988) (quoting Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 614 (7th Cir. 1982)). We have termed the degree of similarity for purposes of indirectly adducing evidence of copying, "probative similarity." Johnson, 409 F.3d at 18; see also Lotus, 49 F.3d at 813 (describing "probative similarity" as when "the offending and copyrighted works are so similar that the court may infer that there was factual copying"). Although similar, this degree of similarity is not to be confused with the degree that a plaintiff must meet after he has -34- established infringing copying work is -- when he "must "substantially show similar" expression in the copywritten work.'" that to the the 'alleged protected Yankee Candle, 259 F.3d at 33 n.4 (quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir. 1998)); see also 4 Nimmer § 13.03[A], at 13-33 ("Although the term 'substantial similarity' often is invoked as a proxy to prove copying as a factual proposition, we have seen that the term 'probative similarity' is to be preferred in that context and the question of 'substantial similarity' arises analytically only thereafter."). Here, we have the relatively unique case of both direct and indirect evidence of copying. See Segrets, 207 F.3d at 61 (noting the "somewhat unusual[]" instance in which there is direct evidence of copying); see also Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992). Specifically, the Archbishop conceded in both his Answer and in deposition testimony that identical or near-identical reproductions of the Monastery's Works had been reproduced and "were available on his Website." Thus, there is no genuine issue of material fact as to whether the Archbishop reproduced and displayed exact or near-exact copies of the Monastery's Works. But lest there be any doubts as to the Archbishop's concessions, there is ample circumstantial evidence in the record from which we may infer actual copying. See Coquico, 562 F.3d at 67. As previously stated, the Archbishop admitted to accessing the Monastery's Works and does not dispute that he has copies of the -35- Works at issue in this case. TMTV, Corp. v. Mass Prods., Inc., 645 F.3d 464, 470 (1st Cir. 2011) (actual copying established where evidence showed, among other factors, that defendant-appellant had access to protected work). with those reproduced on Moreover, a comparison of the Works the Archbishop's Website more than satisfies the "probative similarity" standard, as the texts are nearly indistinguishable from one another, with only minor textual differences where such variation exists.16 See Lotus, 49 F.3d at 813; see also Coquico, 562 F.3d at 67 ("What we have called 'probative similarity' can, when accompanied by proof of access, serve as a harbinger of actual copying . . . ."). This evidence (access to the protected works coupled with probative similarity) sufficiently supports the Monastery's claim as to actual copying. And so, with no doubt as to actual copying, we continue onward in our similarity study. 2. Substantial Similarity We traditionally have assessed whether substantial similarity lies between copyrightable expressions by applying the "ordinary observer" test. Under this rubric, two works will be deemed substantially similar if a reasonable ordinary observer, on examining both, "would be disposed to overlook [the disparities 16 Both below and on appeal, the Monastery has provided detailed comparisons of the parties' respective versions of the religious texts. This extensive analysis shows verbatim or near word-forword similarities between the Works and the Archbishop's texts. -36- between the works], and regard their aesthetic appeal as the same." Concrete Machinery, 843 F.2d at 607 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)); see also Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966) (describing ordinary observer test as "whether an average lay observer would recognize the alleged appropriated from the copyrighted work"). copy as having been The district court here applied the ordinary observer test in its two orders. See Holy Transfiguration II, 754 F. Supp. 2d at 226-27; Holy Transfiguration I, 685 F. Supp. 2d at 226. It concluded in each that an average lay observer reviewing the Monastery's Works and the Archbishop's versions of such would be inclined to overlook any differences between the texts and consider them to be, for all intents and purposes, the same. See Holy Transfiguration II, 754 F. Supp. 2d at 226-27; Holy Transfiguration I, 685 F. Supp. 2d at 226. The Archbishop now attacks the district court's utilization of the traditional ordinary observer test. In essence, he argues that the court should have applied a more differentiating dissection analysis and isolated the original, or components of the Works from the remaining elements. protected, Had it done so, so the argument goes, it would have recognized that the Works consist of non-copyrightable elements, preventing a finding of actionable copying. In general, the Archbishop's overall argument rests on solid ground: a court's substantial similarity analysis must center -37- on a work's original elements. See Coquico, 562 F.3d at 68; see generally 17 U.S.C. § 103(b). Such examination may require more than the simple determination that "an overall impression of similarity" between the contested works as a whole exists. Johnson, 409 F.3d at 19; see also Yankee Candle, 259 F.3d at 33 ("The determination of whether an allegedly infringing [work] is substantially similar to [another work] is not so simple a task . . . as a strict visual comparison of the two items."). Typically, to properly conduct this examination, a court must "dissect[] the copyrighted work and separat[e] its original expressive elements from its unprotected content," honing in solely on the unique (and thus protected) components. at 68; see also responsibility to Johnson, examine 409 F.3d at "juxtaposed 19 works Coquico, 562 F.3d (noting as a court's whole" and decipher "'what aspects of the plaintiff's work are protectible [sic] under copyright laws and whether whatever copying took place appropriated those [protected] elements.'" (quoting Matthews, 157 F.3d at 27)) (alteration in original). This distillation process is necessary so as to ensure the purity of the originality that we are analyzing. See Feist, 499 U.S. at 348 ("The mere fact that a work is copyrighted does not mean that every element of the work may be protected."). similarity rest upon Indeed, should elements that a work's are appearance of not themselves copyrightable, this will drive a problematic stake through an infringement claim. See TMTV, 645 F.3d at 470 ("No infringement -38- claim lies if the similarity between two works rests necessarily on non-copyrightable aspects of the original . . . ."); Matthews, 157 F.3d at 27. Our review as to the carved out originality components of a work is de novo. Coquico, 562 F.3d at 68 ("Appellate review of the originality vel non of the constituent elements of the copyrighted work is de novo."); see also CMM Cable, 97 F.3d at 1517 ("[C]ourts clearly may determine the question of . . . copyrightability so long as they do so in accord with the familiar rules governing summary judgment."). a. Short Phrases The Archbishop attempts to guide us in the appropriate textual incisions he asserts are warranted. Specifically, he argues the district court erred in its comparison of the Works to the Archbishop's versions; instead of comparing the respective texts as a whole, the court should have performed the requisite triage pursuant to which it would have discovered that the only elements unique to the Works are, at most, "short phrases, single words, and expressions that are obvious." Because copyright protection cannot extend to such elements, the Archbishop claims it likewise cannot extend to the Works. We are not convinced that the district court's application of the ordinary observer test here was inappropriate or that a deeper dissection analysis was warranted. An examination of each of the district court's orders shows that it considered the respective works as a whole while also narrowing in on their -39- particular textual variations (where present),17 ultimately concluding that "the slight textual differences between the two [texts] are insufficient as a matter of law to render the Archbishop's versions not 'substantially similar' to the infringed portions of the Works copyrighted by the Monastery." Holy Transfiguration Monastery II, 754 F. Supp. 2d at 227; see Holy Transfiguration Monastery I, 685 F. Supp. 2d at 226 (noting the "minuscule differences" between the respective parties' versions of the St. Isaac texts "are insufficient as a matter of law to render the website copy . . . not 'substantially similar' to the version copyrighted in the St. Isaac Work"). Moreover, while both this court and the Copyright Office have generally recognized that short phrases may not be subject to copyrightability, see 37 C.F.R. § 202.1(a) (listing as "works not 17 For instance, the district court noted the following specific differences in the works' translations: [R]egarding Psalm 3 of the Psalter Work, the Monastery's phrasing "without cause" has been replaced by "vainly" in the Archbishop's corresponding website document. In addition, there are slight textual differences between portions of the Monastery's Prayer Book Work and the corresponding text posted on the Archbishop's website (e.g., the Archbishop changes "Friend of Man" to "Lover of man" throughout the document). Holy Transfiguration Monastery II, 754 F. Supp. 2d at 227 n.5 The Archbishop's copying [of the St. Isaac Work] omitted footnotes and a total of three words, added a question mark, and changed the spelling of six words. It also added six quotation marks, and changed some headings. Holy Transfiguration Monastery I, 685 F. Supp. 2d at 226 n.13. -40- subject to copyright" "[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; [and] mere listing of ingredients or contents"); see also CMM Cable, 97 F.3d at 1519, applicability of this law very much turns on the specific short phrases at issue, as not all short phrases will automatically be deemed uncopyrightable, see CMM Cable, 97 F.3d at 1520 n.20 (acknowledging that "not all short, simple, declarative sentences fall within the meaning of [37] C.F.R. § 201.1(a)"); Syrus v. Bennett, 455 F. App'x 806, 809 (10th Cir. 2011) ("[A] short phrase may command copyright protection if it exhibits creativity.") (quoting 1 Nimmer § 2.01[B], at 2-17). sufficient As so often is the case, context matters.18 Here, we have no context to analyze. Aside from brief- yet-undeveloped citations to relevant case law, the Archbishop fails to identify -- whether below or on appeal -- the alleged 18 Compare Applied Innovations, Inc. v. Regents of the U. of Minn., 876 F.2d 626, 635 (8th Cir. 1989) (holding test statements in copyrighted psychological test sufficiently original to be copyrightable as derivative works); Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir. 1987) (noting although ordinary phrases might not be copyrightable, their "use in a sequence of expressive words does not cause the entire passage to lose protection") with ATC Distrib. Grp., Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 706-10 (6th Cir. 2005) (denying copyright protection to part numbers and transmission parts catalog partly because did not show originality required for copyright protection); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 28687 (3d Cir. 2004) (similar); Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 541-43 (6th Cir. 2004) (rejecting copyrightability of toner loading software program and lock-out code because lacked creativity warranting protection). -41- short phrases which he contends are not copyrightable. not mindreaders. Judges are To properly assess whether the alleged short phrases are subject to protection, we must know what they are. We have often admonished counsel that "it is not the job of this court to do [appellant's] work for him." United States v. Rodríguez, 675 F.3d 48, 59 (1st Cir. 2012); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In contrast to the cases to w