Re: Original legal work?

David Ferguson <david.ferguson[_at_]geis.ge.com> wrote:
>
> The other day, I was describing to an attorney some of the intriguing
> threads I've followed on this list, and some of the U.S. copyright
> principles I think I've learned. He then said that from time to time,
> he'll submit some written work to another attorney -- say, text for a
> separation agreement. Once the "real work" has been finished, the
> second attorney will say in effect, "that was really well written. I'm
> going to save that and use that myself."
>
> The first attorney has joked on such occasions, "No, you can't, that's
> copyright 1997 Urfer Pendragon." Given our recent conversation, though,
> he wondered to what extent such writing would be protected by copyright.
>
> My own impression (not legal advice, not even training advice) is that,
> to the extent the text is an original expression of an idea, it is
> protected, and thus the second attorney cannot use that expression
> without permission of the writer. But in the multi-armed world of the
> law, someone always says, "On the other hand..."

I think that in many cases there is sufficient original expression to qualify for copyright protection. And the interesting thing from my point of view is that his statement about "No you can't" effectively eliminates any implied license that may come with such language.

> Maybe the text is really a work for hire because someone's retained the
> first attorney to prepare the agreement in the first place? Or, could
> it be that in legal circles, nothing under the sun is new? Nah...

Usually not though, since works for hire must either be by an employee (which attorneys usually aren't (but I am)), or qualify under one of the section 101 catagories.

-- 
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1997 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
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Bruce E. Hayden                      bhayden[_at_]acm.org               
Austin, Texas                        bhayden[_at_]copatlaw.com