A new copyright infringement class action lawsuit filed against LexisNexis and West Publishing begs the question: Are legal documents copyrightable? White v. West Publishing Corp., 12 cv 1340 (S.D.N.Y, filed Feb. 22, 2012).
In White v. West, attorneys Edward White and Kenneth Elan, on behalf of themselves and similarly situated attorneys, are suing the publishers of Westlaw.com and LexisNexis.com (those sites where we attorneys do all our research) for infringing on their copyrights in litigation documents, specifically briefs and memoranda.
As most lawyers know, LexisNexis and Westlaw is where you go to look up case opinions, legal forms, and sometimes the briefs and memoranda of counsel in cases similar to yours so that you can research (read: copy) their thoroughly researched arguments and the occasionally witty turns of phrase. I do not think most lawyers consider that such “innocent” copying would ever be actionable. Apparently, to an extent it is. I will not go into a detailed legal analysis of the copyright law as it relates to this matter — I will just link to a very good blog article that does it for me: Click here.
In short, it is fairly obvious — I think — that there is an element of copyrightable creativity even to legal briefs. Of course, LexisNexis and Westlaw will argue fair use — IMO a poor argument consider how much they charge us for access to their database. And, equally obvious, is that the copyright protection in most “legalese” will be weak at best — entire paragraphs of a legal briefs are wholesale copies of sections of relevant legal opinions.
A bigger hurdle for plaintiffs to surpass here is the question of who exactly owns the copyright to an attorney’s work? The attorney or the client? (I have yet to see a retainer agreement with a copyright clause, but I might certainly add one to mine after this lawsuit resolves.)
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