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Can a person get sued for copyright if he uses the same wording from a brief as an appellate attorney used?

Grayling, MI |

Similarly, can you get sued for using the same exact wording the state appellate judges use in their decision and answer? Or is it usable because it is public record?

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Attorney answers 4

Posted

In these situations, there is not copyright, thus there is no copyright infringement. Without going to much in it, the common law that we have is based on precedent. Attorneys and judges are always citing the wise words used by those that have gone before them. The only thing you need to remember to do is to cite where the quotation has come from.

All information disclosed is for general discussion only. Attorney is not rendering a legal opinion nor is entering into an attorney client relationship, which requires an executed retainer agreement.

Asker

Posted

Thank you kindly for your comment and suggestion.

Bruce E. Burdick

Bruce E. Burdick

Posted

That is not accurate. There is copyright protection for briefs, and it is automatic. 17 USC102. However, there is never a registration, and without registration there is no jurisdiction for a suit. 17 USC 411(a)

Posted

Not so fast... When a federal judge writes an opinion, this is probably work for hire for the federal government which is not eligible for copyright protection. The state court judges are a different story and the state may very well be entitled to protect its copyrights, as a number of cases have held.
As far as briefs drafted by law firms, this is writing like any other and those law firms are entitled to copyright protection.
Needless to say that in this age of digitization of content, plagiarism gets exposed very easily, so even if you do not get in trouble for copying copying someone else's work, the credibility of your brief would suffer immensely and your judge/jury will not be pleased.

Bruce E. Burdick

Bruce E. Burdick

Posted

The question was one of suit. Briefs are never, to my knowledge, registered with the Copyright Office and therefor there is no jurisdiction for suit in the US.

Marc John Randazza

Marc John Randazza

Posted

I'm not sure how you figure state court opinions would be different. Federal works are not copyrighted.

Gergana Hristova Miteva

Gergana Hristova Miteva

Posted

I would rather the questioner be aware of his/her exposure.

Gergana Hristova Miteva

Gergana Hristova Miteva

Posted

I have had the occasion to advise a client on this, apparently it is not common knowledge. Only the federal government's works are not eligible for copyright, the state and local governments are a different story: http://www.cendi.gov/publications/04-8copyright.html#313

Posted

There is a technical copyright law distinction between an opinion and a brief, but in the end not an important one. No suit is going to be successful, as no damages are going to exist.

Copying from an opinion is certainly legal if done for purposes of citing case law. A Federal opinion is exempt from copyright under 17 USC 105 and a state opinion can be copied under 17 USC 107 fair use to use it.

Copying from a brief is another matter, that is infringement under 17 USC 501. However, I have never heard of a brief being registered for copyright with the US Copyright Office, and unless the brief is registered you cannot be sued for copying it, and even if later registered statutory damages will not be available and only actual damages would be possible, which are not going to be present in the case of a brief and certainly not in an amount sufficient to justify a suit.

That said, if you get copying from another brief, the fall out could be substantial, as court and client will seldom find it acceptable.

Bottom line is NO you will not be sued successfully for copying from a brief, but it's not often smart.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

Asker

Posted

I would assume it would pretty much have to be word by word in the same sequence etc. to be not tasteful to use. But if giving information on something someone has stated and giving credit for it, well, that would be ok, wouldnt it?

Marc John Randazza

Marc John Randazza

Posted

I see my briefing copied all the time. I consider it to be flattering. it is an acknowledgment by a colleague of the superiority of my work.

Gergana Hristova Miteva

Gergana Hristova Miteva

Posted

Short citation with attribution is probably fair use, however, from your question is sounded like you are planning to submit someone's brief as your own. It might be helpful for you to read about a recent scandal with Lindsey Lohan's attorney - she allegedly had plagiarized her brief: http://www.techdirt.com/articles/20120323/01363318218/lindsay-lohans-lawyers-loopy-legal-argument-laced-with-lifted-language.shtml No lawsuit seems to have been filed for this yet, but it damaged this attorney's reputation.

Asker

Posted

Oh gosh NO! I would never do that . But there are some really bright and talented attorney's comments made in their briefs which are hard for me to pass up not using. I have authored a few "How-To" books for "back -to -the -landers" years back and I know about giving credits and those type of copyrights and getting permission, even from National Geographic, which is rare. I have asked quite a few questions on this site in order to help me get my son's appeal in and I have never seen so many comments as these to any of my questions. Wow. Really stirred some souls up. Thank all of you for all the suggestions and help. It is truly appreciated in this time of my need to help my son.

Gergana Hristova Miteva

Gergana Hristova Miteva

Posted

Sounds like you are no the right track. Best of luck!

Posted

With regard to copying another attorney's brief, it may very well constitute copyright infringement. That will depend on the extent to which the copied content is in fact original to the other attorney, whether it is being copied for fair use purposes (e.g., comment or criticism), and other factors. As other responding attorneys have noted, it is extremely rare for attorneys to register the copyright in their briefs, and rarer still to file suit for copyright infringement. However, such suits have in fact been in the news recently. See http://blogs.wsj.com/law/2012/02/22/keep-your-hands-off-my-briefs-lawyers-sue-westlaw-lexis/. I'm aware of one article from a federal Court of Appeals judge suggesting that such suits could be viable (sorry I can't find the a link to the article).

As for copying language from a judicial opinion, such language is clearly not protected by copyright if it comes from a federal judge. If it comes from a state judge, it is not well-settled whether it is public domain. The statutory prohibition on copyright protection for government works only applies to works of the federal government, and some states do claim copyright protection in government works. See http://www.azlibrary.gov/policies/copyright.aspx. However, one federal appellate court has held that local building codes lose copyright protection when they become "the law," and this rationale would also seem to apply to judicial opinions. See http://www.law.cornell.edu/copyright/cases/293_F3d_791.htm. However, even if a state judicial opinion were protected by copyright, quoting the language would qualify as fair use in many instances.

I am an attorney, but I am not YOUR attorney. By providing free, generalized information , I am not entering into an attorney/client relationship with you, nor am I providing legal advice applicable to your particular needs.

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