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Religious Use of Copyrighted Works after Smith, RFRA, and Eldred

Steven D. Jamar

Howard University School of Law; Institute for Intellectual Property and Social Justice (IIPSJ)

May 3, 2011

Cardozo Law Review, Vol. 32, No. 5, 2011

In this Article, I evaluate the copyright doctrine of fair use and the use of injunctions to enforce copyrights in the context of religion in light of the Supreme Court decisions in Employment Division v. Smith and Eldred v. Ashcroft, and in light of the Religious Freedom Restoration Act (RFRA), the Congressional response to Smith. I conclude that religion is a special category such that the religious nature of the work and the religious nature of the use of a work should affect fair use analysis and, where fair use does not protect the use, injunctions should be used sparingly in favor of using the remedy of compulsory license.

These conclusions are supported by and are indeed in part a consequence of the social utilitarian foundation of copyright law in the United States and the related social justice principles of inclusion and empowerment, combined with the special place religion has in our constitutional scheme. My proposal provides a balanced, principled means for treating religion specially in the copyright context while maintaining both the copyright incentivizing function and the aim of making appropriate space for religious exercise and discourse.

Number of Pages in PDF File: 27

Keywords: copyright, social justice, inclusion, empowerment, rfra, religion, free exercise, fair use, injunction, intellectual property, first amendment, constitution

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Date posted: May 4, 2011  

Suggested Citation

Jamar, Steven D., Religious Use of Copyrighted Works after Smith, RFRA, and Eldred (May 3, 2011). Cardozo Law Review, Vol. 32, No. 5, 2011. Available at SSRN: http://ssrn.com/abstract=1830000

Contact Information

Steven D. Jamar (Contact Author)
Howard University School of Law ( email )
2900 Van Ness Street NW
Washington, DC 20008
United States
HOME PAGE: http://iipsj.com/SDJ/

Institute for Intellectual Property and Social Justice (IIPSJ) ( email )
United States
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