The law blog at the Wall Street Journal points out that a complaint filed against YouTube this week copies greatly from one filed a few weeks back. They highlighted the relevant text in the two complaints for you. Here is the first and second complaint. Is it infringment or fair use? Good question, which also dovetails into an article I am currently writing on a similar issue (more later).
The only article on the matter Davida H. 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), (pdf) applies a fair use analysis. Nimmer on Copyright § 2.18[E] suggests “There appear to be no valid grounds why legal forms such as contracts, insurance policies, pleadings and other legal documents should not be protected under the law of copyright.”
However, I throw my hat in with Prof. Thomas G. Field, Jr., who believes that law firms “[don't] have a protectable copyright in [] complaints” because they do not meet the creativity required to gain copyright protection. Under the idea/expression dichotomy in copyright law, facts are not protectable. Citing law, no matter how arranged, is simply citing to fact, and there is no creativity involved (unless you are wrong in what you believe the law to be, I suppose, which might make your interpretation very creative). I don’t think that you have to get to a fair use analysis here, as there is no protection available.
Of course, firms like Milberg Weiss (they sued a company I was an officer of once, but so did most state’s attorney generals) have been slapping a copyright warning on their complaints since 2001. If they sue you for copying wholesale from one of their class action complaints, give me a call to defend you; I would like an opportunity to make the argument in front of the Supreme Court.
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Keith Henning
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Filed under: Copyright, Fair Use, Legal Academics
That is not the only article on the topic - I wrote about briefs and copyrights back in 2001, in anticipation of electronic aggregation of briefs for data bases. (My article appeared in Legal Times Intellectual Property Magazine (May 7, 2001), but a draft is available on line here -
http://www.his.com/israel/loce/press/brief.pdf
I reluctantly concluded that briefs are copyright-able, though arguably, a complaint might be more analogous to a form.
Thanks for pointing this out. Although you feel that complaints are subject to copyright, is copying them arguably a fair use? Also, have you seen any articles on fair use of 3rd party material as evidence? Any help on this is appreciated.