State Code’s Case Notes Not Protected by Copyright

James Lake and Daniela Abratt reflect upon a recent ruling regarding copyright protection.

Case notes and other explanatory material that a state adopts as part of its annotated code are not protected by copyright, a federal appeals court has ruled.

In Code Revision Commission v. Public.Resource.Org, Inc., Case No. 17-11589 (11th Cir. Oct. 19, 2018), the U.S. Eleventh Circuit rejected Georgia’s claim that copyright law protects the Official Code of Georgia Annotated. Legislation belongs to the public, the Eleventh Circuit explained, because “the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority.” As the authors, “the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable.”

That public ownership applies to Georgia’s statutory text and extends to the code’s annotations, which according to the Eleventh Circuit’s opinion consist of history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references. Those annotations are prepared by legal publisher LexisNexis Group under a contract with the state. The contract specifies the types of annotations, tells Lexis how to arrange the content, designates a state commission to supervise Lexis’s work, and provides that Georgia holds the copyright. The Georgia General Assembly votes annually to incorporate the annotations into the OCGA.

Asserting its copyright, Georgia objected to the online posting of the code with annotations on the freely accessible website Public.Resource.Org. A district court granted the state summary judgment and ordered the removal of the annotated code from the website. The Eleventh Circuit reversed that decision. Statutes and court decisions have long been seen as freely available and not subject to copyright, the appeals court noted. Although annotations do not have the force of law, annotations “are part and parcel of the law” and “so enmeshed with Georgia’s law as to be inextricable.” Consequently, the Eleventh Circuit concluded, the annotations are uncopyrightable.

 The Eleventh Circuit’s decision gives considerable protection to legal commenters and others who wish to share official summaries of the law. Such republishers would likely have a strong fair use defense to any infringement claim. But under the Eleventh Circuit’s decision, that defense is not necessary, because official annotations are not protected by copyright in the first place.

Judge Stanley Marcus wrote the Eleventh Circuit’s opinion, which was joined by Senior Judge Frank Hull and Senior District Judge Susan C. Bucklew (sitting by designation).

James Lake is a partner in the Tampa office of Thomas & LoCicero.  His practice focuses on media law, intellectual property, and business litigation.  He represents clients in state and federal courts and before the U.S. Patent & Trademark Office, and he frequently renders advice on newsgathering, defamation, trademark and copyright matters.

Daniela Abratt is an associate in the Fort Lauderdale office of Thomas & LoCicero with a practice concentration in media and communications law, including defamation and invasion of privacy.  She also focuses on business litigation and intellectual property matters.