Is Borrowing from Another Lawyer’s Brief a Copyright Violation?

Sue Altmeyer, Electronic Services Librarian, sue.altmeyer@law.csuohio.edu | September 04, 2007 – 18:26

Attorneys commonly borrow language from complaints and briefs filed by other attorneys in other court cases. This practice has become even more common with the rise of (1) brief databases on LexisNexis and Westlaw, and (2) web dockets with accessible copies of filings. According to a recent article, copying of legal documents may constitute a copyright violation. Thomas J. Stueber, Due Diligence in Drafting: Copyrights in Legal Documents, 24 The Computer & Internet Lawyer 21-25 (August 2007) (Available via the Ohiolink Legal Collection)

Stueber’s article further states that even a lawyer using his or her own previous work may be committing a copyright violation. This is true if the attorney prepared the document while working for a prior employer. The prior employer owns the copyright in the document.

Stueber discusses several factors which may determine whether copyright infringement has occurred, including:

-Whether the legal document is “original” and possesses some minimal degree of creativity.

-Whether the language of the document is copied, or the ideas presented in the document are copied. Copyright extends to the words used in the pleading or brief, not the theories or ideas.

-How much of the brief or pleading is “borrowed”: a sentence, a paragraph, a page or more.

There have been several instances where attorneys have threatened to sue other attorneys for copyright infringement. See Davida H. Isaacs, The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents, LexisNexis® 71 mo. l.rev. 391-446 (Spring 2006). Isaacs asserts that in most cases, the fair use defense should be applied to allow litigation attorneys to adapt documents written by other attorneys.