Re: copyright of briefs

     I apologize for this rather long posting, but given the degree of discussion the copyright protectibility of briefs has generated, I thought I would share an exam question I gave a few years ago in my copyright class and my "model answer" to the question. I should perhaps say that I am sympathetic to the policy arguments that John Lederer has been making on this topic, even though doctrine gets somewhat greater attention in my model answer than it would were I writing a law review article on this topic. Students, in my experience, don't do too well with policy arguments, and I've come not to expect them to.

     Anyway, for what they're worth, the question and answer are reproduced below.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu

     Question

     Lawyer, on behalf of and paid by Client, drafts and submits a five-page Brief to Court on a legal issue involving alleged criminal behavior by Client. Court accepts Lawyer's argument and declares Client free of any criminal responsibility in the matter in a published opinion in which four critical paragraphs of Brief are taken verbatim (without acknowledgement by the Court). Brief is on file with the clerk of Court and is available for public inspection.

     Professor wishes to compile a set of good legal briefs into a book to be used for teaching legal writing. She asks Lawyer's permission to use Brief in the book but Lawyer refuses. Professor comes to you asking whether she can publish Brief in her book, anyway. She also asks, if the answer to the first question is "No," whether she can at least use the four paragraphs appearing the Court's published opinion. Advise her.

     Answer

     The first issue is whether legal briefs, as opposed to judicial opinions and statutes, are copyright subject matter at all. The can be no serious issue concerning "authorship" in a brief of five pages, so the only question is whether there is some public policy for denying copyright to legal briefs. The policy for denying copyright to statutes and judicial opinions
(federal and state) is that these sources of law must be freely
available to the citizenry if they are fully to understand their rights and duties in society and to participate meaningfully in the democratic process. Recognition of copyright would hinder the free interchange and discussion of the very legal rules by which we are governed.

     However, that is not true of legal briefs, however effective some of them may be in persuading judges to declare the law to be one result rather than another. It's the judicial opinion that declares the law, not the brief. Therefore, it is difficult to conclude that the same public policy exception for opinions and statutes should apply to legal briefs. Can it nevertheless be argued, as a ground for denying protection, that copyright supplies no additional incentive to a lawyer writing briefs to a court? After all, lawyers are paid by their clients to do just that, and their reputations, if nothing else, depend on the job they do. Therefore, we are likely to get as many briefs that are just as good without copyright protection as with. Still, we do not normally inquire into specific incentives motivating authors in particular cases in determining whether to recognize copyright. Many independent contractors, like architects, produce work under similar conditions, and we continue to recognize the copyright. Consequently, I would advise Professor that Brief is copyright protected.

     Is it possible that Brief is a work for hire, so that Client rather than Lawyer would be considered the author? No. Lawyers are classically independent contractors.

     Therefore, reproduction of Brief in its entirety will infringe, unless it is excused by fair use. To determine whether the proposed use is fair, we must look to S107, as interpreted by the courts.

     The proposed use is teaching and is therefore within the list of examples of works in S107 that can qualify for fair use. Nevertheless, we must consider all of the four factors in S107 to determine whether the use is fair.

     The first factor is the purpose and character of the use. Here the Supreme Court in Campbell has told us that a transformative use is more likely to qualify than a verbatim copy. In this case, Professor proposes making a verbatim copy, although the audience at which the work is aimed (students) is different from that of the original Brief (judges). It is questionable whether a mere change in the intended audience counts as "transformative" within the meaning of the Supreme Court's opinion. Also, the proposed use is educational, which favors fair use, although presumably the book will also be sold at an attempted profit, so it is a commercial use as well. This is presumably not the only brief that may effectively teach legal writing, and since few lawyers worry about the derivative market for their briefs, most are likely to grant permission under circumstances like these. Therefore, it is not clear that education will suffer very much if students are denied access to this brief in the form that Professor wishes to publish. Overall, this factor seems to be slightly negative for Professor.

     The second factor looks to the nature of the copyrighted work. In this case, Brief is unpublished, which may have made a difference until the recent amendment of S107. In Salinger the works taken were also publicly available in libraries, but the court denied fair use on the ground they were unpublished. Under the amended provision, the unpublished nature of Brief can be taken into consideration in finding fair use, but it is not determinative. In other respects, the nature of Brief places it more in the group of works for which courts tend more readily to find fair use. It is not a work of fancy or fiction but an argument designed to persuade human beings to act in a particular way, and indeed in a way that affects legal rights and duties. Other lawyers dealing with similar issues before the courts may feel it necessary to adopt this argument as the one most likely to effect the desired result. In this sense, a legal brief has a degree of functionality that is lacking in most traditional literary works. However, Professor is not using Brief to attain a particular result in court. Rather, she wants to use it simply as an example of how good arguments are constructed. So, whatever limits might flow from the functional nature of the use of Brief in court, they have little or no application to Professor's intended use. Moreover, denying protection to Lawyer's overall argument is one thing. It is quite another to deny protection to the verbatim language used by Lawyer to make the argument. So, while the nature of the work copied could more readily subject it to fair use, that nature does not argue strongly, if at all, for a finding of fair use here.

     The third factor is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Here Professor is proposing to use the entire Brief. This factor clearly works against her.

     The fourth factor is the effect of the use upon the potential market for or value of the copyrighted work. In Campbell the Supreme Court said that no presumption of market harm would be applied to even a commercial use that extended beyond mere duplication, but that clearly would not help Professor here, because she intends a verbatim reproduction. Moreover, publication of Brief by Professor would surely reduce the demand for Brief in, say, another book aimed at a similar audience. Can we argue that recognizing a derivative market of this type
(students learning how to write briefs) would give Lawyer no
additional incentive to write over what he already has from his client relationship? After all, Lawyer was not only paid by Client; he had an ethical obligation to do his very best in representing Client before Court. Recognizing a derivative market could arguably result in a conflict of interest for lawyers, as they would be thinking of that market in writing their briefs, possibly to the detriment of the interests of their immediate clients. While that argument has some theoretical plausibility, it is doubtful that it is of any concern to federal copyright. If a state wishes to require lawyers to give up copyrights in their briefs as part of their ethical obligations to clients, they are presumably free to do so. [Actually, this point may not be so clear. Federal copyright law may preempt state rules here. An interesting question, but beyond what we studied in this course.] Copyright law generally recognizes the right of copyright owners to govern the use of their works in derivative markets, and a court is almost certain to so hold in this case.

     I conclude that the four factor analysis of S107 would likely result in a holding that Professor's proposed use of Lawyer's copyright-protected Brief is not fair.

     There is always the possibility that a court would apply footnote 10 of Campbell and award Lawyer only damages (in effect, a compulsory license) rather than an injunction, should Lawyer sue for copyright infringement. That might be a sensible result in this case, because Lawyer's Brief is already available for those who wish to make use of its ideas and unprotected elements, and indeed four "critical" paragraphs have already been published. Still, how federal courts will apply footnote 10, if at all, is open to question, and it would be rash for Professor to assume that she can go forward with no more than an obligation to pay some sort of royalty to Lawyer.

     The final question is whether the four critical paragraphs of Brief that found their way into Court's opinion can be freely used by Professor. If those four paragraphs remain copyright protected after incorporation into Court's opinion, the fair use analysis would not significantly differ from that already given.
(The use is not of the entire Brief, but we are told that the
four paragraphs are "critical," so the result could hardly be different. Perhaps the need to be able to quote "legal" materials also somehow changes the analysis of factor two, but that is more appropriately dealt with in the copyrightability analysis directly.) Therefore, the question is whether copyright is lost by incorporation into Court's opinion.

     That Court did not credit Lawyer with authorship should in no way reduce or eliminate Lawyer's rights, but adoption of Lawyer's language in the opinion is a different story. First, there is probably an implied license in a court to adopt language from briefs. It is done all the time, often without giving credit. (Consequently, Court has probably not infringed Lawyer's copyright.) Moreover, the opinion in a sense has the force of law, much like a copyrightprotected  "model" statute or regulation that is adopted by a legislature or administrative agency. We discussed in class that such a model statute falls into the public domain to the extent that it becomes "law" in a particular jurisdiction, at least to the extent of reproducing the laws and statutes of that jurisdiction. The same reasoning applies to judicial opinions that adopt copyrightprotected  language from briefs. The opinions become part of the "law" in that jurisdiction. Lawyers and general citizens must have free and full access to the law and its sources. Having submitted a brief to a court that might adopt some or all of it in this way, Lawyer assumed the risk of losing, pro tanto, his copyright. Consequently, I would advise that Professor can reprint the four critical paragraphs, probably with a description of the rest of Lawyer's argument in her own words. That is likely to be as effective a teaching tool as verbatim use of the entire Brief. Received on Tue Oct 22 1996 - 22:57:08 GMT