Reprinting Lyrics in Court Cases

On Thu, 11 Apr 1996, Mark Lemley wrote:
[snipped discussion about copyright protection for legal briefs]
>
> I have tried without success to get guidance on a related question of
> particular personal interest -- what liability (if any) would a
> casebook author have for reprinting a court decision which included
> as an appendix copyrighted pictures, song lyrics, etc.
>
> Mark Lemley
> Assistant Professor, University of Texas School of Law
> Of Counsel, Fish & Richardson, P.C.
> mlemley[_at_]mail.law.utexas.edu

First, distinguish a decision to include the lyrics from a decision to include a case that itself includes the lyrics. We are discussing only the latter. You are still fundamentally reproducing a copyright protected work, and you are looking to fair use for salvation. Under that analysis, I see a few factors at work:

Purpose: When you reprint the lyrics for their own sake, you are probably not making a transformative use, and your book has the ambiguous mixed commercial/noncommercial purpose. But once the court incorporates the lyrics into the decision, it has itself transformed the lyrics from art into a crucial element of legal analysis. Your reprinting of the case is similarly transformative with respect to the original. Your purpose also takes on stronger "noncommercial" implications, because publishing and sharing information about the law is an essential form of communication needing greater protection under fair use.

Effect: Lyrics in a court decision and in your book do not compete for the market for the original work. Indeed, it is a market over which the copyright owner has no control (no one controls judges!), and putting the lyrics in the case is inherently an unlicensable market for derivative works.

Then there are some practical issues.... What judge would want to rule that students cannot be allowed to learn from having the benefit of full court cases? And are copyright owners accepting the risk of some limited disclosure and continued, but limited, reproduction as a result of bringing their case (implied consent???)?

What do others think?

Kenneth Crews
Indiana University
Indianapolis
<kcrews[_at_]velcome.iupui.edu> Received on Fri Apr 12 1996 - 21:19:19 GMT