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Copyright provides some protection

Photo illustration by Mike Zellmer

Photo illustration by Mike Zellmer

Columbia, S.C. – Lawyers don’t need anyone’s blessing to copyright their own work. The question is, when they do, are their claimed rights enforceable?

The short answer is yes – maybe.

Intellectual property attorney John C. Nipp of Charlotte, N.C.-based Summa, Additon & Ashe told South Carolina Lawyers Weekly that the requirements for obtaining a copyright are not strict.

“It has to be a literary work in a tangible form of expression that involves some degree of creativity,” he said. “Plenty of documents in the legal world meet that definition.”

The problem with copyrighting legal documents, Nipp said, is the conflict between copyright law and the tradition of customary usage in legal community.

“There is no denying that there is a tradition or history of lawyers relying on or using other lawyers’ work in creating their own legal documents,” he said.

That is not done out of laziness. “It’s from the old adage that a lawyer should do what has been tried and true,” Nipp said. “Lawyers use arguments that have been demonstrated to have worked and to have been enforced by courts. That makes good sense.”

The result is that a great many provisions from legal documents are permitted to be copied.

But, Nipp explained, in recent years, lawyers and law firms have begun to recognize the value of their intellectual property.

“There have been some reported instances of law firms asserting intellectual-property rights in documents they’ve created,” he said. “In terms of having those rights enforced by the courts, I have seen no history or example of that.”

Milberg, a New York-based law firm, began affixing copyright notices to its securities complaints as early as 2001. Nipp said Milberg sought to prevent competitors from lifting its claimed intellectual property from its complaints and using the same for their own benefit. “That never resulted in any litigation that I am aware of,” Nipp said.

In one case – Hawaii Reinforcing Iron Workers Pension Trust Fund v. Intel Corp. – Milberg affixed its copyright notice to the first page of its complaint before setting out the material allegations of the complaint. The notice provided that the complaint was “a creative work fully protected by all applicable copyright laws, as well as by misappropriation, trade secret, unfair competition and other applicable laws.”

The notice explained that the drafters had “added value to the underlying factual materials … through … unique and original selection, coordination, expression, arrangement, and classification of the information.”

Milberg’s notice warned that the firm would “vigorously defend all of their rights to this writing/publication,” and reserved all rights, “including the right to reproduce in whole or in part in any form. Any reproduction in any form by anyone of the material … without the permission of [the firm] is prohibited.”

‘Useful articles’

The late Melville B. Nimmer, who literally wrote the book on copyright law (“Nimmer on Copyright”), observed, “There appear to be no valid grounds why legal forms such as contracts, insurance policies, pleadings and other legal documents should not be protected under the law of copyright.”

Nimmer explained that 17 U.S.C. § 113(b) “suggests this conclusion by negative implication.”

17 U.S.C. § 113(b) “… does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed. …”

That provision, Nipp said, draws a distinction between copyright law and patent law.

“You can’t copyright a pencil holder,” Nipp said. “A pencil holder does something: it holds pencils. People can’t be prevented from copying useful articles.”

Copyright, on the other hand, “is about protecting creative or artistic expression,” Nipp said.

A complaint is a useful article, like a pencil holder, because it does something. It initiates a lawsuit. But 17 U.S.C. § 113(b), Nipp said, does not specifically rule out copyrighting a useful literary work.

Gray areas

Nipp said the standard answer to a complaint is probably not copyrightable. A lawyer does it the same way every time and is restricted by rule as to what can be included in it.

A legal brief, on the other hand, whose effect is weighed and felt based on the manner in which it is put together, the manner in which arguments are presented and the choices made in terms of what evidence to put in and what evidence to leave out, involves a lot of creativity, Nipp said. “That certainly would meet the definition of copyrightable.”

In the legal world, most documents will fall somewhere between copyrightable and not-copyrightable. While many legal documents feature some elements of creativity, “Many documents also contain certain, specific mandates,” Nipp said. “In a complaint a lawyer has to allege jurisdiction and venue, has to identify the parties and set out the elements of the cause of action.”

But even within the strictures of the complaint, Nipp said, there may be some paragraphs that describe the lawsuit in very creative terms. “If a firm sees it, likes it and copies it word for word, I think the drafter would have a pretty good case for copyright infringement.”

Bringing a copyright-infringement action now would be easier than in the past, Nipp said, because of the ready availability of other lawyers’ work on electronic-filing sites such as Pacer.

He said to prove copyright infringement, “a plaintiff can show that the defendant had access to the work and that the infringing work is substantially similar to the copyrighted work.” Court databases that house pleadings provide a convenient way to satisfy the access requirement, Nipp said.

Legal tradition vs. copyright

The tradition of customary usage in the legal community is consistent, Nipp said, with an area of copyright law known as “the merger doctrine.”

There are only so many ways lawyers can allege someone acted tortiously. “Copyright law is not going to protect paragraphs in legal documents that express the concept of committing a tort,” Nipp said.

But at some point, he added – particularly if a lawyer uses unique, flowery language in presenting a concept – “the law is going to recognize that the lawyer has gone to a level of creativity that transcends traditional legal writing.”

But the deference to the legal tradition of customary usage may preclude suits by lawyers against lawyers.

“It would certainty gum up the legal system if a lawyer had to be looking over his or her shoulder to make sure no one else had written it that way,” Nipp said.

Paul Tharp can be reached at paul.tharp@sc.lawyersweekly.com.

One comment

  1. A good additional question is why Westlaw charges for access to lawyer’s briefs on appeal. Lawyers are never asked for permission or a license, West simply post briefs and charges to see them. That is wrong. Filing a document does not move it into the public domain. Now that e-filing exists in our state appellate courts, briefs can be found for free. But West and maybe others are selling access to copyrighted works by lawyers without permission and nobody seems to be able to stand up to them and say “no.”

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