Due Diligence in Drafting: Copyrights in Legal Documents
Imitation, it’s said, is the most sincere form of flattery.
But copying a work — including a legal document — in
In days gone by, we had limited access to legal documents drafted by other attorneys. The documents we had were usually those of colleagues with whom we had a personal relationship, such as friends, acquaintances and opposing counsel. Occasionally, if we found a published decision that was very similar to our own case, we might telephone the attorneys in that case and ask for copies of their briefs. But today, as the courts and government agencies move towards a completely electronic document system, virtually every legal document filed in any court or government agency is available over the internet.
While most of us are happy (and even somewhat flattered) to have other lawyers refer to our work, we wouldn’t be happy to have hundreds of lawyers we’ve never met copy our work and bill thousands of dollars in the process. If a novelist or other writer finds that their work has been copied, they can resort to the copyright laws to protect their creative expression. Can lawyers do the same?
Are Legal Documents Copyrightable?
Documents written by a lawyer are protected by copyright as much as the work of any other writer. Indeed, unlike some of the difficult copyright issues presented by electronic technology, the pen and ink (or word processor and laser printer) work product of lawyers presents no new or difficult copyright issues.
Virtually all the works created by lawyers in the ordinary course of their practice are literary works for copyright purposes. Literary works are works expressed in words, numbers or other verbal or numerical symbols or indicia.1 Literary merit is irrelevant; a fad diet book is as much a literary work (for copyright purposes) as The Adventures of Huckleberry Finn.
A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, motion picture version, art reproduction, abridgment, or other form in which a work may be recast, formed or adopted.2 Essentially, creating a derivative work is taking one copyrightable work and transforming it into another copyrightable work. Only the copyright owner owns the right to prepare or authorize derivative works.3 Thus, if someone prepares a derivative work without the permission of the copyright owner, the author of the derivative work may not claim a copyright in the derivative work and, in fact, will be liable for copyright infringement.
Copyrights come into existence at the moment of creation. Unlike patents, which must be granted by the government, authors do not have to take any action beyond creation of the work. Copyright registration has some benefits, but registration is not required to create a copyright.
Thus, documents drafted by lawyers are literary works protectable by copyright. A lawyer who rewrites another legal document creates a derivative work. Creating a derivative work without permission is copyright infringement. And of course, employers can be liable for infringement committed by their employees. So law firms and corporations may be the ones held responsible for infringement by their lawyers.
Are Legal Documents “Original”?
Copyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced or otherwise communicated.4 Originality simply means that the work was created independently (i.e., not copied from a preexisting source) and possesses some minimal degree of creativity.5 A copyrighted work does not have to meet a particular threshold of originality; it merely needs to possess “some creative spark, no matter how crude, humble, or obvious.”6
Thus, even though many legal documents are utilitarian and not particularly “original” in comparison to stories or novels, this does not prevent them from being protected by copyright.
Don’t Lawyers Waive Their Copyrights?
The fact that many legal documents become public records does not prevent them from being copyrightable. Filing documents with courts or government agencies (or simply serving them on opposing counsel) creates an implied license to make copies of the documents, but the scope of the implied license is not unlimited. Certainly the courts, government agencies and opposing parties have an implied license to make copies for their personal use. For instance, if your opposing counsel makes several copies of your brief in order to archive the original brief and distribute copies to the team of lawyers that is responding to the brief, there is no copyright infringement. Nor is there any copyright infringement in the judge making copies of the brief or, as occasionally happens, lifting portions of your brief to put into a written order.
Also, all jurisdictions have rules regarding public inspection and copying of public records. People have a right to go to the clerk of court and make copies of public litigation documents. So simply going to the clerk’s office or website and copying a brief or some pleadings is perfectly fine. But this right to inspect and copy doesn’t create a right to incorporate portions of those briefs or pleadings into your own. Copyists will be hard-pressed to make an argument that simply filing a document with a court or government agency means that every other lawyer in the country can take that document, change the names, claim it as his or her own work, and bill a client for it.
Who Owns a Legal Document?
Ownership of a copyrighted work belongs to the “author.” Typically, the lawyer drafting a legal document is the author of that work. A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.7 The authors of a joint work are co-owners of the copyrighted work. Since it is common for legal documents to be drafted by teams of lawyers, there may be one or more joint owners of a legal document.
Clients don’t own the copyright in documents drafted for them because, in most situations, a lawyer acts as an independent contractor. Unless there is some agreement to the contrary, an independent contractor, not the contracting party, is the author of the copyrighted work.8
However, copyrightable works created by employees during the course of their employment are works for hire, and the copyright belongs to the employer.9 Thus, legal documents drafted by lawyers who are employees of a law firm are owned by the law firm. Similarly, in-house counsel who are employees of the corporation are also subject to the work-for-hire doctrine, and legal documents drafted in the course of employment by in-house counsel will be owned by the corporation.
Can’t I Copy Anything?
The most fundamental concept in copyright law is the idea-expression dichotomy, which states that copyright protection extends only to the creative expression of a copyrighted work, not to any idea, concept or principle expressed by the copyrighted work.10 In the context of legal documents, for example, a complaint for copyright infringement may be protected by copyright law. However, the copyright protection does not extend to the concept of suing someone for copyright infringement. Even if the author had developed some new theory or an extension of an existing law that created a unique new cause of action, the copyright does not extend to protecting the idea of that new cause of action; it would only extend to the particular words used to express that idea.
At one extreme end of the idea-expression dichotomy is the concept of idea-expression unity. Some ideas can only be expressed in a limited number of ways. In these instances, the scope of protection for the particular expression is very limited. And when the idea and expression are inseparable or merged, the idea and expression are indistinguishable and the merger doctrine will protect only identical copying.11 For instance, it would be impossible to protect statements like “Defendant denies the allegations of paragraph 6 of the complaint” or “To establish copyright infringement, the plaintiff must prove access and substantial similarity.” Statements like these can only be expressed in a very limited number of ways.
Fair use allows us to take quotations from other people’s work. It limits the exclusive rights of a copyright owner by allowing use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research.12 Four factors are used in determining whether a use is a fair use:
In analyzing fair use, we must be careful to distinguish between underlying facts and the way that those facts are expressed. For example, it is certainly not copyright infringement to state that a particular brief was filed, or to quote from an opposing party’s brief in order to rebut the argument.
A completely different issue arises when one attorney “borrows” complete paragraphs, pages or sections from a brief. Suppose, for example, you are writing a brief in support of a motion that the statute of limitations has expired on plaintiff’s cause of action. You find a published decision that is directly on point, and you obtain copies of the briefs filed in that published case. The defendant’s winning brief is quite good, so you take that brief, substitute the facts of your case, and paraphrase the analysis. Depending on exactly how much of that brief you lift, the author of the original brief may have a cause of action against you for copyright infringement.
To establish copyright infringement, a plaintiff must prove ownership of the copyright and copying by the defendant. Because defendants are typically not willing to admit that they copied a copyrighted work, copying is most commonly proven by circumstantial evidence of access and substantial similarity. To prove access, the plaintiff must only show that the defendant had an opportunity to see the work.14
With respect to legal documents, getting access used to be much more difficult. Now, however, virtually all litigation documents are available on the internet. Thus, today it would be very easy to prove access to most legal documents.
Substantial similarity is a fact question, and it obviously varies from case to case. The important thing to remember is that there is no magic formula that will allow you to avoid infringement. There are many “rules of thumb” floating around, like “If you change 30 percent of the words, it’s not copyright infringement.” If you hear any rules like that, they’re not true.
If a copyright is infringed, the owner is entitled to both an injunction15 and monetary damages.16 Monetary damages include both actual damages and the infringer’s profits.17 However, the copyright statute also includes the very powerful remedy of statutory damages. Statutory damages may be awarded for any sum between $750 and $30,000, as the court considers just.18 If the infringement is willful, the court has the discretion to increase the award of statutory damages to $150,000.19 Thus, the potential for statutory damages as high as $150,000 per infringement gives accused infringers a large incentive to settle.
However, it is important to remember that statutory damages and attorneys fees are only available for infringement of copyrighted works that were registered within three months of their first publication.20 Because legal documents are not routinely registered with the Copyright Office, statutory damages may not be available in many cases.
I’m Infringing Myself?!?
It’s also possible to infringe the copyright in your own work. As mentioned previously, writings prepared in the ordinary of a course of a lawyer’s employment are works for hire. Therefore, in most situations, law firms and corporations own the copyright in documents prepared by the lawyers they employ.
Imagine that you are an associate employed by a law firm who is doing litigation work. You keep a collection of briefs, motion papers, discovery requests, typical responses and objections to discovery requests, and other documents that you’ve prepared. When you need to draft a brief or a set of discovery requests, rather than start with a blank piece of paper, you pull out your favorite brief or discovery requests and rewrite them to fit your particular case.
Then you decide to take a new job with another law firm. Of course, you take copies of your favorite briefs and other legal documents with you when you leave your job. At your new law firm, when you need to write a brief or discovery request, you pull up your samples and begin editing. However, even though you wrote them, the documents that you are editing are owned by your previous law firm. Copying or modifying them is an infringement of the copyrights owned by your former employer.
A similar situation can be seen in the corporate world. Imagine that you are an in-house counsel at a corporation. You have a collection of contracts, SEC filings, tax documents, form letters, and other documents that you commonly use in your practice. The original versions of those documents were prepared by you in the course of your employment with your employer. Therefore, the copyright in those documents belongs to the corporation. If you move to another job and take copies of those documents with you, you may be infringing the copyright of your former employer when you copy or modify those documents.
Given the ease with which copyrights in legal documents can be infringed, what should the responsible practitioner do? Here are some guidelines on how to protect your own copyrights and to avoid infringing the copyrights of others.
Protecting Your Copyrights
Register Your Masterpieces. The primary weapon in enforcing a copyright is the threat of statutory damages and attorneys fees. Remember that in order to claim these remedies, a copyright must be registered within three months of its first publication. Of course, most lawyers churn out so much paper that it would be nonsensical to register everything they write. But if you have drafted a document that you think is particularly good or that you think might be copied, you should register it with the Copyright Office. Copyright registration is a simple process of filling out a form and mailing it to the Copyright Office with a $45 fee. It is also advisable to place a copyright notice on those works in which you claim copyright.
Discuss Ownership. Given the various situations in which the work-for-hire doctrine can arise in the preparation of legal documents, law firms and corporations should adopt a consistent policy (preferably written) regarding ownership of copyrights prepared by their employees. Lawyers will continue to move between jobs. Traditionally, most law firms and corporations have had no objections to attorneys taking copies of documents that they created with them to their new jobs. And it is certainly acceptable (and often gracious) for employers to waive their copyright claim with respect to their former employees.
But problems can arise when employers take inconsistent positions. Waiving (or ignoring) copyright claims in most employment situations, but then making a claim after a particularly contentious departure, will result in the same problems that other inconsistent employment practices cause. Therefore, it is best to openly discuss and consider these issues, rather than wait for bad situations to arise. A written policy may be useful, but at minimum, the topic should be addressed and resolved during exit interviews.
If You Must Copy, Copy Ideas, Not Expression. When using other legal documents as a resource in drafting your own legal documents, keep in mind the idea-expression dichotomy, as well as the concepts of merger and fair use. From a copyright standpoint, it is absolutely permissible to copy ideas. Basic concepts and arguments are not protectable; only the particular manner in which they are expressed may be copyrighted. Certain expressions, however, present ideas that can only be expressed in a limited number of ways and are not protectable. But a particularly eloquent discussion of the merger doctrine that you lifted from someone else’s brief certainly is protectable.
Use Other Peoples’ Work “Fairly.” Fair use is the most common defense to copyright infringement. The fair use defense essentially states, “Sure, I copied some material, but I only copied a little bit.” If you are relying on the fair use doctrine, the simplest way to avoid infringement is to put quotation marks around the material and give attribution to the original author. If you are copying something, and adding quotation marks and attribution doesn’t make sense, then it’s probably not a fair use. Also, remember that there is no magic formula to separate infringement from fair use. Just because your fifth grade teacher told you it was okay to copy from the encyclopedia as long as you changed every fourth word does not mean the same rule applies in front of a federal jury.
Be Careful How You Use Your Brief Bank. With the wide availability of digital documents and the ease with which they can be saved and stored, many practitioners have built up considerable “brief banks” or some other library of legal documents. Some people even collect them and post them on websites or intranets. Obviously, such a database can be an invaluable aid to your practice. However, be aware that the simple existence of such a database may be used to establish access and possibly even copying of any document in that database. Use other people’s work as a reference and resource, not as a shortcut to avoid doing your own work.
The wide availability of legal documents in digital form has created vast new opportunities to copy other lawyers’ work. In a profession that worships precedent, the temptation and ease of copying documents that worked in similar cases may become irresistible. While I doubt there will be a large number of copyright cases involving lawyers suing lawyers, there is nothing unique about legal documents that makes them impervious to copyright infringement.
Ten years ago people would have laughed at the idea that copying music onto computers would radically alter the music industry. Lawyers themselves need to be cautious and remember that the law applies to everyone, even lawyers.
Notes 1 17 U.S.C. §101.
1 17 U.S.C. §101.
3 17 U.S.C. §106.
4 17 U.S.C. §102(a).
5 Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340, 344 (1991).
7 17 U.S.C. §101.
8 See, Community for Creative Non-Violence v. Reid, 490 U.S.730 (1989).
9 17 U.S.C. §101.
10 17 U.S.C. §102(b).
11 See, Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971).
12 17 U.S.C. §107.
14 See, Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988).
15 17 U.S.C. §502.
16 17 U.S.C. §504(a).
17 17 U.S.C. §504(b).
18 17 U.S.C. §504(c)(1).
19 17 U.S.C. §504(c)(2).
20 17 U.S.C. §412.
THOMAS J. STUEBER is a shareholder of Kinney & Lange, P.A. in Minneapolis. He practices in the areas of patent, trademark and copyright law.