The main protection afforded to copyright owners is the right to prevent others from copying one’s work without permission. Lawyers, however, copy existing material every day. We quote from cases, draw from briefs we’ve already written, and look to others’ filings for useful language and structure. We also incorporate materials from outside sources such as the websites, magazines, or books – often attaching them as exhibits in court filings. These routine practices may lead to the mistaken impression that filings in court are exempt from copyright infringement. They are not.
In Olson v. Law Offices of Kira Ann West, the U.S. District Court for the District of Columbia recently underscored the point that copyright law applies to lawyers and court filings, just like any other publishing medium. In Olson, the plaintiff was an expert witness who had authored an expert report that had been filed on a public docket. The defendants in Olson are law firms that reused the report in a different action without the permission of the expert. In their motion to dismiss the copyright action filed by the expert, the defendants argued, among other things, that the filing of the document destroyed the plaintiff’s property interest in the copyright because the public has a right to review and use court filings. The court disagreed, holding that a copyrighted work does not lose copyright protection simply because it was filed with a court. An attorney wanting to use the material in a different matter still has options, including citing the docket entry, summarizing the report, or quoting it in a limited way.
The case should also alert lawyers to other potential copyright pitfalls. The Copyright Act prohibits copying and distributing copyrighted works without a license or other recognized justification like fair use. That means common litigation practices – like copying a book chapter as part of an exhibit or reproducing a website or article in a court filing – might be copyright infringement, actionable if the author has registered the work with the Copyright Office.
Most lawyers probably don’t give much thought to copyright when preparing court filings. But as Olsen makes clear, the risk is real. Taking a moment to consider the source of material – the extent of any reuse, and whether a license or fair use may apply – can help avoid unnecessary exposure.