To Register or Not to Register Copyright in Legal Briefs - That is the Question

Like many questions in the law, the answer is a conditional one - maybe, and maybe not. The question is not a new one, but the ease of distribution afforded to digital media has brought it to the fore once again. In White v. West Publishing Corporation et al, Case No. 12-1340 filed in the US District Court for the Southern District of New York, a class action suit filed by several subclasses of lawyers is challenging the right of Lexis-Nexis and West Publishing to collect (usually via download) legal briefs filed in cases, and then repackage them for sale, presumably to other lawyers. In a ruling issued on May 16th, U.S. District Court Judge Jed Rakoff dismissed the claim of the subclass of lawyers who had failed to register their briefs with the Copyright Office, on the grounds that, as he put it, "The statute is unequivocal that completing registration or pre-registration is a prerequisite to filing a claim".

Judge Rakoff's order does not address the validity of the claims of the other putative subclass - comprised of lawyers who did register their briefs.  While this decision, on its merits, seems unremarkable and consistent with long-established legal precedent, it does re-open the debate about the merit of the underlying claim - that lawyers have a right to, and should exercise their right, to register copyright ownership in their legal briefs. This presents the more interesting issues for discussion.

My review of previous commentary in this debate disclosed that two principal arguments seem to be advanced in opposition to registration - 1) all filings with a court are a matter of public record, which in turn means that briefs filed instantly go into the public domain, making registration impossible; and 2) absent someone directly copying a brief in its entirety, any subsequent re-packaging of a legal brief is a fair use, and therefore defensible against a subsequent infringement claim. 

The fact that court filings are a matter of public record doesn't mean that the contents of those filings are placed in the public domain. This is true of the legal briefs filed, and is made more evident if you consider that attachments to those briefs, particularly in intellectual property cases, often include material clearly protected by copyright registration. Filing a lawsuit claiming infringement of a motion picture script, where that script is attached as an exhibit to the complaint, doesn't result in a waiver of copyright protection for that script, merely because the script, as an exhibit, is now part of the public record.

The fair use argument presents a more complex problem, meriting a more detailed analysis. Is the nature of the use, in a legal brief, a commercial use, or a non-profit use? Is the use transformative? Is the nature of the work creative, thereby warranting greater protection? As is often the case in fair use defenses, it is impossible to posit a bright line answer to these questions, leaving lawyers to fall back to the dreaded "each case has to be separately analyzed on its own merits" answer, which gives little guidance to a practitioner faced with the decision of whether to raise the defense.

The fourth prong of fair use analysis, the effect of the use on the market for the original work, poses even more difficulties regarding legal briefs. The brief is not sold as a good itself, but rather represents the result of billable hourly work, which includes compensation for the research required, the time spent drafting and editing the brief, and the skill and experience of the author. None of these elements are subject to copyright protection.

Moreover, the attorney who drafts the brief is generally not in the business of selling the brief as an independent good, and the work is largely tailored to the specific facts of the case or needs of the client. Which of course raises another issue usually not discussed in this debate - while attorney work product belongs to the attorney, does the client have any ownership interest in the work which was created based on their case or need, and for which they paid the cost of its creation? And given these issues, is there really a strong argument that can be made that lawyers have an interest in marketing these briefs?

Since most of what is found in a legal brief isn't subject to copyright protection (ie:  the facts of the case, the case citations and the facts and quoted language from those authorities, the text of relevant statutes and prior orders in the case; the research efforts of counsel, and related items), what is left is the prose used by counsel to present the argument. It seems unlikely that the interest in this prose has enough value to make assertion of a protectable copyright interest worth pursuing - unless the universality of the issue and the high quality of the prose attracts the interest of an aggregator like Lexis-Nexis or West, who are thereafter able to make a sufficiently grand net profit from the resale of the text to warrant the claim.  Sounds unlikely to me - so let's wait to see the outcome of this class action suit to see if the District Court agrees.

Comics, Courts and Controversy

I'm back after an unexpectedly long hiatus. Part of the reason for my absence is the effort I've devoted to completing a lengthy new law review article: Comics, Courts and Controversy: The Cases of the Comic Book Legal Defense Fund, which has just been published by the Loyola Los Angeles Entertainment Law Review. You can download a copy at:  http://elr.lls.edu. 

Here's the abstract for the article:  

Cartoons and comics have been a part of American culture since this

nation’s formation. Throughout that lengthy history, comics and cartoons

have also been a subject of controversy, censorship, legislation, and litigation.

They have been viewed as a threat to society and a cause of juvenile

delinquency; they are scandalous, indecent, and obscene. The Comic Book

Legal Defense Fund (“CBLDF”), a New York-based non-profit organization,

provides legal defense for comic artists, collectors, distributors, and

retailers who face civil and/or criminal penalties for the creation, sale, and

ownership of comics, cartoons, graphic novels, and related works.

The Introduction to this article charts the history of the comic art form

and, in particular, its history in the United States. This section offers a

summary of the first efforts to restrict the content of comics via investigations

and Congressional hearings fueled by the dubious psychology and social

science theories of Dr. Frederic Wertham. These theories offer an example

of the kind of misguided fears that currently augment attacks on the

comic art form today. Finally, the Introduction explains the origin of the

CBLDF due to the prosecution of a comic storeowner.

The second section of the article provides a detailed discussion of Mavrides

v. Franchise Tax Board. In Mavrides, comic creator Paul Mavrides,

co-author of the notorious underground comic The Fabulous Furry Freak

Brothers, successfully battled the California Franchise Tax Board over the

taxation of comics. As a result, independent comic artists were free of undue

tax burdens that otherwise would have limited their ability to continue to create

comics with edgy political and social commentary.

The third section of the article focuses on the principal type of case the

CBLDF has worked on for the past two decades—fighting the U.S. Justice

Department and local state prosecutors’ efforts to censor the content of

comics, usually by alleging that the content is obscene or indecent. In particular,

the section focuses on the cases of Gordon Lee, a Georgia-based distributor

prosecuted for allegedly distributing an obscene graphic novel to a

minor, and Christopher Handley, an adult prosecuted under the PROTECT

Act for the mere possession of allegedly obscene Manga comics.

The final section of the article argues that the current American jurisprudence

imprisons creators, distributors, and collectors for the ideas they

express in graphic formats. It argues that the Supreme Court was wrong

when it decided that obscene materials are outside of the protection of the

First Amendment. Unfortunately, this decision has had a tremendous impact

on the rights of comic creators, distributors, and collectors. Furthermore,

the rationale for criminalizing explicit sexual material, to protect children

from the alleged harm exposure to these materials causes, is flawed.

The absence of any definitive proof of that harm leads to the recommendation

that at the very least, penalties for the creation, distribution, and ownership

of comics and cartoons with sexual content must be de-criminalized.

I hope you take the time to read it, and send me comments via this blog, or directly to me at mgreenberg@ggu.edu. Now that I'm back, more posts to come in the near future!