Re: copyright notice on contract

There are several deep, interesting problems relating to copyrighting contracts.

1. The document is a legally operative thing. It has a status not as tangible property, but as a item of independent legal significance. (For those of you who remember evidence class, this is why a contract is not hearsay.) This arguably places an executed contract really outside the realm of copyrightability.
2. A corrolary of number 1 is that merger must apply. There is only one way to express that exact contract and the "idea" that it captures -- and that is the way the contract was written. *Any* change is a change of that captured idea. This, of course, relates to executed contracts.
3. Now, as to use of that executed contract -- if it is not copyrightable, then you can copy it and use it howsoever you want. But, what if you use it not as an executed contract (a legal thing of independent legal significance), but as a form or source of language? Does this matter? When the nature of the original uncopyrightable work changes by the intended use (from memorial of a deal to a source of expression of certain ideas for use in other works) does the copyright law suddenly come in to protect it?
4. If the contract is just a form contract -- sold as such, then it would seem that the form would be copyrightable. But what happens to the copyright when it is now executed and becomes an independent legal thing? Once again I think the executed contract is not independently copyrightable, but is a non-copyrightable derivative work. But as a derivative work, or copy even, it is not fair game to copy because you would then infringe the original copyright in the original form.
5. Any copyright in a form contract is going to be thin for several reasons.
6. It will be thin because of the potential for merger of the expression with the idea.
7. It will be thin because many of the clauses around in use predate the automatic copyright attachment or are so closely derived from such clauses as not to be copyrightable because they are in the public domain.
8. Implied license will carry you a long way in many circumstances, I would think.
9. The copyright may extend to the whole more than to any part. That is, if you copy the structure, sequence, and organization and the specific language, i.e., absolutely literal copying, then you may be over the line. This, I think, is what is going on in the new insurance contracts written in so-called plain language which may be protectible.
10. Independent origination is always a defense. And you can lift the ideas all you want. Then, it becomes hard to separate the precise idea from the precise expression. You need not create a clumsy way to say something elegant just because of copyright any more than a mathematician needs to avoid using the most compact, elegant algorithms or formulae in a proof just because someone else wrote it down first. (There are special issues of copyright and patent here, but the analogy maybe still is ok.)
11. Fair use will be broad.

I am unimpressed by any claims of copyright in contracts -- except, again, perhaps as a way to limit other *publishers* or *competitors* (e.g., insurance companies) from using the exact same thing you worked so hard on.

--
Steven D. Jamar
Professor of Law
Director LRW Program (http://law.howard.edu/lrw/)
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar[_at_]law.howard.edu

Those who fear men like laws.

Marquis de Vauvenargues, French moralist, in "Reflexions" 1746