State Works in the United States

Copyright Law for State Works and Local Government Works

by Katie Fortney

While there are certainly those who advocate for that position (See, e.g., Kris Tells Us Why We Should Care, Posting of Daniel Cornwall to Free Government Information, freegovinfo.info/node/1955), what the pertinent section of the Copyright Act of 1976 actually says is that copyright protection “is not available for any work of the United States Government.” (17 U.S.C. § 105 (2006)) State government works are not mentioned anywhere in the Copyright Act, and the Act by its terms preempts their being covered by any other source, such as state law (17 U.S.C. § 301 (2006)).

Although states can be copyright holders, “facts are not copyrightable,” (Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 344 (1991)) and “for copyright purposes, laws
are ‘facts’…” ( Veeck v. S. Bldg. Code Congress Int’l, Inc., 293 F.3d 791, 801, ¶ 44 (5th Cir. 2002)). Many cases over the years have also reflected the related rule that statutes and judicial opinions cannot be copyrighted because all citizens should have free access to the laws that govern them and that they are presumed to know. See, e.g., Banks v. Manchester, 128 U.S. 244, 252–53 (1888); Veeck, 293 F.3d at 801, ¶ 44; Bldg. Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730, 734, ¶ 27 (1st Cir. 1980); Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886).

Compilations

Compilations are eligible for copyright protection (17 U.S.C. §§ 101, 103 (2006)) …, but the
protection only covers “the material contributed by the author of such work . . . .” (17 U.S.C. § 103(b)). Contributions such as summaries and headnotes are generally protected. As held in Banks Law Publ’g Co. v. Lawyers’ Co-operative Publ’g Co.,169 F. 386, 388, ¶ 6 (2d Cir. 1909), a reporter “may secure copyright of the headnotes, statements of cases, title of the volume, arrangement or grouping of cases, index digest, synopsis of the arguments, and in short, such portions of his compilation or authorship as requires the exercise of intellectual thought and skill.”

Whether the compiler’s arrangement or other contributions are protected depends on how
creative they are: if the parts are arranged in chronological, alphabetical, or some
other “mechanical or routine” order, then there has been no original expression contributed by the compiler and the arrangement does not meet the threshold level of creativity to merit protection (Feist, 499 U.S. at 362). The same should be true for anything flowing
mechanically from that arrangement, such as pagination (Banks, 169 F. at 390–91, ¶ 25–29).

This rule has played out in court for publishers and states seeking copyright protection for compilations of legal materials in a variety of ways. In Oasis Publishing Co. v. West Publishing Co., for example, a district court judge in Minnesota held that West Publishing’s arrangement of Florida Cases was copyrightable, and that someone republishing the text of the opinions could not include indications of West’s page numbers without infringing on West’s copyright. But in Matthew Bender & Co., Inc. v. West Publishing Co., a New York district court and the Second Circuit disagreed (Matthew Bender & Co., Inc. v. West Publ’g Co., No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), aff’d, 158 F.3d 693 (2d. Cir. 1998)). The Second Circuit held that star pagination―the indication of where West’s page breaks occur—did not “create a ‘copy’ of any protected elements of West’s compilations or infringe West’s copyrights.” (Matthew Bender & Co., Inc. v. West Publ’g Co., No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), aff’d, 158 F.3d 696 (2d. Cir. 1998)). In a companion case, the court also held that West’s arrangement and selection of information about parties, court, date of decision, attorneys, and procedural developments were not protectable.

The cases drew the attention of the Department of Justice and a coalition of library associations, including the American Association of Law Libraries and the American Library Association, both of which filed amicus briefs describing the copyrightable contribution in West’s case compilations as “trivial,” and warning against the dangerous implications and bad policy of letting a dominant publisher hold public domain legal information hostage. See Brief for American Ass’n of Law Librarians et al. as Amici Curiae Supporting Appellees, Matthew Bender, 158 F.3d 693 (No. 97-7430), reprinted in 91 Law Libr. J. 385 (1999); Brief for United States of America as Amicus Curiae Supporting Appellees, Matthew Bender, 158 F.3d 693 (No. 97-7430), available at usdoj.gov/atr/cases/f1100/1191.pdf.

The Court, in the Feist case, expressly rejected the ‘sweat of the brow’ doctrine, which had justified the extension of copyright protection to the facts and other non-original elements of compilations on the basis of the labor invested in obtaining and organizing the information.

L. Ray Patterson & Craig Joyce, in their article “Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations” (36 UCLA L. Rev. 719, 728–31 (1989)), provides an illuminating history of the efforts of Illinois and Texas to assert that the numbering of their statutes was part of the public domain, rather than property of the West Company.

The majority view is that “the law” is not copyrightable, and copyright in compilations of the law extends only to the parts of the compilation that are expressions of sufficient originality. However, as pointed out by Peter Martin, the existence of the case creates enough of a litigation risk to deter risk-averse parties regardless of its continued viability. Peter W. Martin, Neutral Citation, Court Web Sites, and Access to Authoritative Case Law, 99 Law Libr. J. 329, 345, 357, 2006 Law Libr. J. 19 ¶¶ 34, 66. Section numbers, titles, headings, and page numbers should not qualify. This view complements the long-standing tradition of favoring access to the law because such access is essential to due process and because citizens are considered to be the authors and owners of the law (Bldg. Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730, 734, ¶¶ 26–27 (1st Cir. 1980)).