Professional Reading: On Unauthorized Adaption of Litigation Documents

See David Isaacs, The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents, 71 Mo. L. Rev. 391 (2006).   

Abstract: Breaking from centuries-old tradition, attorneys have recently begun threatening one another with claims of copyright infringement based on the unauthorized appropriation and adaptation of their legal documents, particularly litigation documents. If these threats deter attorneys from adapting those documents, the cost of quality legal representation will increase significantly. This would place such representation out of reach of larger segments of the public and impair the legal system’s efficiency. With these potential consequences in mind, this article considers the validity of those copyright claims.

The article concludes that many memoranda of law, as well as a small number of complaints, likely contain expression entitled to copyright protection. Nevertheless, courts should permit attorneys’ unauthorized adaptation of copyrighted litigation documents as “fair use” for two reasons. First, penalizing attorneys would not advance copyright’s goal of providing incentives to create additional works, because subsequent unauthorized use does not diminish their market value. Second, because of the presence of market failures, the copyright owners do not license their documents, as one might otherwise expect: unfortunately, both a substantial number of hold-outs as well as transaction costs thwart frequent licensing; moreover, the marketplace is ill-equipped to permit the authors to capture the cumulative increase in value caused by the benefit to the public welfare from the dissemination of the documents.

In sum, enforcement of the copyright monopoly as to litigation documents would unnecessarily stifle progress and prevent both attorneys and the public from securing the full benefit of the work. As this article demonstrates, copyright’s “fair use” provision was intended to remedy these situations and should shield attorneys accused of copyright infringement.