Comment RELEASABLE X

 

NOT RELEASABLE


EXAM NO. ________


ARIZONA STATE UNIVERSITY

COLLEGE OF LAW

COPYRIGHT LAW

LAW 646


Professor Karjala


FINAL EXAMINATION


2-1/2 Hours


MODEL ANSWERS


Saturday, December 11, 2010                                                                                             9:00 a.m.


Instructions


            This examination consists of a two essay questions that you are to answer in bluebooks or by computer. The total exam time is 2-1/2 hours. The problems will be weighted equally in determining the grade on the exam, but you may allocate your time to the problems as you choose.


            You are permitted to have with you and to use during the examination your textbook, the statutory supplement or other printed version of the Copyright Act, any class handout materials (including materials printed from the Course Materials web page for the class), your class notes, and any other written materials made by you or your study group (not photocopied from printed materials). You may also make use of materials that are stored on the computer you are using to write the exam answers. During the examination you are permitted to visit the class web page at http://homepages.law.asu.edu/~dkarjala/Copyright/Syllabus.htm, including any links from that page, but visiting any other internet site during the examination will be considered a violation of the College Honor Code. Be sure to save your exam often while you are writing, and after the exam be sure your exam gets transcribed to the registrar’s thumb drive (if that is the method employed this year - in any event, make sure the registrar gets a copy somehow).


            Base your answers SOLELY on the materials that were assigned on the syllabus or discussed in class. Please remember that your answers should RAISE issues, not eliminate them. Even if you are quite sure that your resolution of one issue eliminates the need to consider others, where significant issues arise with another initial resolution, try to deal with those issues on the assumption that the first issue is resolved contrary to your own approach to it. This is especially the case if there are facts in the problem that are relevant only to these subsidiary issues and that you have not made use of in resolving the primary issue. This is an EXAM, not real life! Furthermore, do not give abstract lectures on copyright law (and, in particular, do not give back to me lengthy quotes concerning what you think I said in class), but in applying copyright law to the facts of a given problem, be sure you make full use of the facts that are given. If you have not used all the facts, you are probably missing an issue that you are expected to consider.


            If you write your answers in longhand, please write legibly, double space, and ON ONE SIDE OF A BLUEBOOK PAGE ONLY. If you type or use a computer, try to type enough of the letters of each word correctly to make the word decipherable. Your score will be based on what is actually on the paper, not my guess as to what you might really have meant.


GOOD LUCK!


Problem 1


            Edie (E) is the owner of Edie’s Electronics, which, as its name implies, is a retail electronics store. E decides to place an advertisement in the local Newspaper (N). E speaks with the head of N’s advertising department and outlines her overall vision of what the ad should look like. E also gives N a blank piece of letterhead stationery showing a drawing of the Edie’s Electronics storefront and a few standard items for sale there. These drawings were all made by E. E told N that she wanted the drawing of the store and the other items shown on the letterhead to be incorporated into the ad. N’s advertising department then produced the ad, incorporating the drawings made by E and adding others drawn by N’s art staff. N also added some phrases about the quality of the equipment sold by the store and the high level of service in composing all of these elements into the final advertisement. Once the ad was completed, N showed E a printout and E approved. E gave a check to N, which contained a legend on the back, where the endorsement was to be made, stating “In full payment for the advertisement prepared by Newspaper as a work made for hire and as a joint work with Edie and for the transfer of all other rights.” This check was duly endorsed by N and deposited in N’s bank account. The ad then appeared in N’s newspaper.


            E later runs the same ad in some competing newspapers. N brings an action against E for copyright infringement. E argues that she cannot infringe because she is the author or at least a joint author of the advertisement and in any event is the owner of the copyright. E also argues that, if she is neither an author nor a joint author, her running the ad is a fair use. Assuming the above facts are proved, how would you as judge decide the case? (Do not consider claims N may have against the competing newspapers.)


Model Answer


Work Made for Hire


            The first issue is whether the ad is a “work made for hire” (WMFH). N is not the employee of E, so this cannot be a WMFH as a work made by an employee in the course of employment under clause (1) of the WMFH definition in section 101. [NOTE: At least half the answers wrote several paragraphs to a couple of pages on whether N was an employee of E. This did not hurt their scores, but it wasted time that might profitably have been used on other aspects of the exam.] To qualify as a WMFH under clause (2), it must first fit within one of the nine categories listed there. The main candidate here would be a work “specially ordered or commissioned for use as a contribution to a collective work.” It conceivably might also be a work “specially ordered or commissioned for use as a . . . compilation,” but the same analysis applies to both, so we concentrate here on the ad’s status as a commissioned “contribution to a collective work.” Strictly speaking, a newspaper is a collective work (under § 101, a work in which independent contributions are assembled into a collective whole), but the statute seems to envision commissioning by the collective work author of the individual contributions. Here, the commissioning party is E, who has no interest at all in the collective work as a whole (the published newspaper issue in which E’s ad appears) and has no collective work copyright. Literally, E’s commissioning of the ad is “for use” in what ultimately does become a collective work, but it stretches the statute to get to this result.


            Assuming the work does fit within the clause (2) WMFH categories, there still must be a written instrument signed by the parties agreeing that the work shall be consider a WMFH. The only agreement we have is the check, which is of course signed by E as payor and by N in the endorsement. It states that the payment is made for the ad “prepared by Newspaper as a work made for hire.” While this language does not track the statute exactly, it is sufficiently close that this court can infer an agreement between E and N to treat the ad as a WMFH.


            There is a problem with the timing of the agreement, however. Here, the work was already prepared when the check with its endorsement was delivered and signed. If this endorsement serves as a valid WMFH agreement under § 101(2), it means that N was the author (or joint author) of the ad until the agreement was signed and then suddenly E became the sole author. This sort of thing makes sense if we are talking about copyright ownership, but does not fit well with the concept of authorship. The Schiller & Schmidt case (text p. 328) holds that the writing constituting a WMFH agreement under clause (2) must precede creation of the work. The Dumas case loosens this requirement somewhat by saying that the written agreement can be signed after creation provided an oral or implied agreement to treat the work as a WMFH is made before the work’s creation. Neither case is helpful to E here. These cases are well reasoned and require that this court hold against E on the issue of E’s authorship of the ad as a WMFH.


Joint Authorship


            A joint work is defined in § 101 as “a work prepared by two or more authors with the intention that the contributions be merged into inseparable and interdependent parts of a unitary whole.” The case law makes clear that each purported joint author must make independently copyright-protectable contributions. That seems to be the case here, because E’s drawings were used in the final ad, but additional graphic material (presumably), some text, and the overall composition were added by N. This situation is to be distinguished from the homeowner/architect and similar cases, in which the commissioning party gives only general guidelines and the other party transforms those guidelines into protectable expression. E’s drawings appear to be a substantial part of the final product and are seamlessly integrated into it. As to the intent requirement, the cases are uniform that both parties must entertain in their minds the concept of joint authorship. In particular, where there is a “dominant” author, the courts will scrutinize very carefully whether that dominant author intended to be placed in the position of allowing a purported joint author to exploit the work freely, subject only to the accounting required by the judicially created joint authorship law.


            Here there is no clearly “dominant” author, or if there is one it is not N. The legend on the check endorsement made explicit reference to the work as a “joint work,” and while that might not be determinative on different facts, it is supports the inference here that the parties probably intended to create a joint work (even though it was made “after the fact”). N has no intent to exploit the ad in question. Indeed, N by itself could put the ad to no useful purpose at all, except perhaps as a template for ads by other businesses. E came to N with her drawings and specifically requested that they be included in the final product, which they were. While neither party in this case seems specifically to have been thinking about copyright or joint authorship, a straightforward and realistic assessment of their interaction suggests strongly that both intended that their respective contributions would be merged into the final ad, which was a unitary whole. I find that this ad was a joint effort by E and N’s advertising department and that, therefore, E is a joint author of the ad.


            As joint author, E has the right to exploit the work without authorization from N. However, E must account to N for any profits she earns from such exploitation. Here E does “profit” because in running the ad in other newspapers, the cost is (or should be) lower because the other newspapers do not have to do any design work. Unless there has been a transfer of N’s interest in the copyright to E, E will be liable to N for half of the cost savings “earned” by E as a result of using this co-authored work. [NOTE: Only about half the answers even attempted to address E’s liability as a joint author exploiting the joint work. Those that did invariably looked to the damages allowed for infringement under § 504. Exploitation by a joint author is not infringement, however. E is liable only for the profits from E’s exploitation, which are wholly unrelated to the profits of E’s business, or even the incremental profit E makes as a result of running the ad.]


            It is also possible that N is the (sole) author of a derivative work based on E’s drawings, although this approach feels less “natural” than a straightforward joint authorship analysis. If this is a DW, N initially owned the copyright in the “new” portions – those expressive additions to E’s drawings. In this case, E would need N’s permission to use the ad unless it is a WMFH (with E as hiring party), or there has been a transfer of N’s ownership to E pursuant to the check legend, or unless E’s use is fair.


Transfer of Ownership


            Because this court has found N to be a joint author, there is a question whether N transferred its interest in the copyright to E pursuant to the check endorsement. Section 204(a) provides that a transfer of copyright ownership is not valid unless there is a written instrument of transfer signed by the owner of the rights conveyed. Courts have held that check endorsements, if sufficiently specific, can effect the transfer of a copyright interest. Here, the endorsement said, “In full payment for the advertisement prepared by Newspaper as a work made for hire and as a joint work with Edie and for the transfer of all other rights.” This language is far from crystal clear. It says that E is paying N for preparing, and presumably running, the ad and seeks to say something relevant to the WMFH and joint authorship issues, which we have already discussed. What does the language “and for the transfer of all other rights” mean? In particular, what “other” rights are involved here? Does it mean, as E would argue, that “all other rights” must mean all copyright rights that somehow inhere in N after the WMFH and joint authorship issues are resolved? This would include, for example, any rights N held as (sole) author, DW author, or joint author. Most courts interpret § 204(a) as requiring at least enough specificity to show a transfer of the copyright and not just a transfer of the physical copy. In this case, there seems to be no evidence on what became of the physical copy, or master, that was used to generate the published ads. On the other hand, the Effects Associates case (text p. 347) says that the purpose of § 204(a) is to prevent misunderstanding over who owns what, and in particular to make sure that the copyright owner does not transfer copyright rights by mistake. This court is reluctant to give N too much of the benefit from this ambiguity, however, because N is in the business of designing and selling ads and should be reasonably well aware of its rights.


            Here, it is difficult to think of what “all other rights” could mean if it does not mean “all remaining copyright rights, if any.” I conclude that the check endorsement constituted a transfer of N’s rights in the advertisement, so that E is the sole owner of the copyright. Therefore, E is free to exploit the ad as she sees fit, without any accounting to N.


Fair Use


            I will address E’s fair use claim here in case this court is reversed on appeal. This will arise if there was no transfer of copyright ownership from N to E, if E is not a joint author of the ad, and if E is not the author as a WMFH under 101(2).


            Fair use is governed by § 107 and the case law. Factor 1 of § 107 looks to the purpose and character of the use, including whether it is commercial, educational, or transformative. The use in question is E’s publication of the ad in competing newspapers without N’s authority. This use is mildly educational in telling people where they can buy goods of the type sold by Edie’s Electronics, but it is also wholly commercial. Moreover, the ad seems to be used “as is” and in the precise context as the original, namely, a newspaper advertisement. The is therefore no basis for saying that this use is “transformative.” Factor 1 necessarily disfavors a finding of fair use.


            Factor 2 looks to the nature of the protected work. Here it is an advertisement, which is not something at the traditional core of copyright. Indeed, until the Bleistein case (text p. 33) it was assumed that a “mere advertisement” did not qualify for copyright protection. While commercial ads do now clearly qualify if they meet the originality and creativity requirements, they are less entitled to fair use than, say, a novel or motion picture. Factor 2 favors fair use.


            Factor 3 looks to the amount of the protected work used, and here it is used in its entirety. Using the entire work does not inevitably result in a denial of fair use, but typically we measure the allowed amount in relation to a legitimate purpose under Factor 1. Here, Factor 1 does not suggest a socially beneficial purpose, so Factor 3 disfavors a finding of fair use.


            Factor 4 looks to the effect of the use upon the potential market for or value of the protected work. Here, there is no evidence that the work has any value at all as an independent work of graphic art. Moreover, the only market for the protected work is E herself. We are placed in a circular position: If the use is fair, there is no market for the work at all, because this use by E is the only market there is. On the other hand, if the use is not fair, this market is “lost” to the copyright owner. Whether or not we count this market is largely determinative of whether there is fair use, and whether there is fair use is determinative of whether there is any market effect. Courts have dealt with this circularity problem in various circumstances and as a general rule seem inclined to look to the market for the very use under scrutiny as a factor in the fair use analysis, at least if there is evidence that there is no market failure. This case is not very similar to Princeton University Press (text p. 787) or Texaco (text p. 803), in which licensing of the type sought by the copyright owners was highly institutionalized. However, cases more similar to this one have also considered the market for the use at issue, such as the Images Audio Visual case (text p. 807).


            In this case, E came to N and asked for N’s services in creating a copyright-protected work whose value was limited to E. No one else could reasonably be expected to make use of the ad, and N, as a rational economic actor, must have charged E the full cost of its design services, in addition to whatever it charges for running advertisements. N had no expectation that it would earn continuing income from ongoing exploitation of the ad. Moreover, N is in the business of designing and running ads and is more likely to have access to competent legal advice than a typical small businessperson. While the Images Audio Visual case (briefly discussed in class) did count the sole market in the person ordering the photos as one to be considered under Factor 4, that case also involved a contract explicitly saying that additional photos were available at a set price. Here, the “contract” says nothing about uses after the appearance of the ad. If N wanted to limit such uses, it could easily have done so by agreement with E. While this deviates from the usual analysis favoring the copyright owner in cases of ties, this court believes it to be justified here because of the relatively different positions of the parties in their ability to “fend for themselves.” Consequently, I find that Factor 4 favors fair use.


            The score on fair use is therefore 2-2. The factors are not given nor intended to be given equal weight, however. They are simply a list of considerations that courts must take into the fair use analysis. Many courts say that Factor 4 is the most important factor. Without relying solely upon that conclusion, and recognizing that the case is very close, I conclude that E’s use on these facts is fair, even if (contrary to my findings above) E is not a joint author and there was no transfer of N’s interest in the copyright to E pursuant to the legend on the check endorsed by N.


            An issue we leave for another day arises if E is a joint author and there was no copyright transfer of N’s interest pursuant to the legend. That issue would be whether a joint author can make a fair use of her coauthor’s interest – that is, make a commercial exploitation of the joint work that is not subject to any accounting to the coauthor because the use was “fair.”


Problem 2


            Lawyer, on behalf of and paid by Client, drafts and submits a five-page Brief to Court on a legal issue involving alleged criminal behavior by Client. Court accepts Lawyer’s argument and declares Client free of any criminal responsibility in the matter in a published opinion in which four critical paragraphs of Brief are taken verbatim (without acknowledgment by the Court). Brief is on file with the clerk of Court and is available for public inspection.


            Professor wishes to compile a set of good legal briefs into a book to be used for teaching legal writing. She asks Lawyer’s permission to use Brief in the book but Lawyer refuses. Professor comes to you asking whether she can publish Brief in her book, anyway. She also asks, if the answer to the first question is “No,” whether she can at least use the four paragraphs appearing the Court’s published opinion. Advise her. Be sure to address, in addition to fair use, the questions of whether Brief is copyright protected and, if so, whether the four paragraphs taken from Brief and used in Court’s opinion remain copyright protected after publication of the opinion.


Model Answer


            The first issue is whether legal briefs, as opposed to judicial opinions and statutes, are copyright subject matter at all. The can be no serious issue concerning “authorship” in a brief of five pages, so the only question is whether there is some public policy for denying copyright to legal briefs. The policy for denying copyright to statutes and judicial opinions (federal and state) is that these sources of law must be freely available to the citizenry if they are fully to understand their rights and duties in society and to participate meaningfully in the democratic process. Recognition of copyright would hinder the free interchange and discussion of the very legal rules by which we are governed. [NOTE: Many answers either assumed the criminal case was in a federal court or simply ignored section 105’s limitation of its express exception to “works of the United States Government” (emphasis added). Most of those compounded the error by assuming that anything incorporated into an unprotected government work automatically became a part of that work and was ineligible for copyright. However, works of the U.S. government must still be works, which means a government employee must be the author. To the extent a protected work is incorporated into a government work, the government employee is not the author, and the exception of section 105 – even if it applied – would not take away any copyright. If this were not the case, any federal judge could remove copyright from any work simply by incorporating the work into its opinion. The crucial issue in the copyright-protectability part of the problem was whether briefs filed in litigated cases could lose their copyrights for the same public policy reasons we deny copyright to state judicial opinions. Few answers even addressed this issue.]


            However, that is not true of legal briefs, however effective some of them may be in persuading judges to declare the law to be one result rather than another. It’s the judicial opinion that declares the law, not the brief. Therefore, it is difficult to conclude that the same public policy exception for opinions and statutes should apply to legal briefs. Can it nevertheless be argued, as a ground for denying protection, that copyright supplies no additional incentive to a lawyer writing briefs to a court? After all, lawyers are paid by their clients to do just that, and their reputations, if nothing else, depend on the job they do. Therefore, we are likely to get as many briefs that are just as good without copyright protection as with. We do not normally inquire into specific incentives motivating authors in particular cases in determining whether to recognize copyright. Many independent contractors, like architects, produce work under similar conditions, and we continue to recognize the copyright.


            County of Suffolk (text p. 276) suggests looking to economic incentives and the need for public notice of the law in determining whether a state governmental work should be afforded copyright protection. Here, of course, the work is by a private citizen, namely, L. The New York Mercantile Exchange case, which was assigned and discussed in class, did offer as one of its reasons for applying the merger doctrine to the “settlement prices” involved there that the exchange did not need the incentive of copyright to create such prices, because the business could not function without them and because they were required to create such settlement prices by law. Except possibly for the four paragraphs from Brief that were incorporated into Court’s opinion, however, which are discussed below, the case for merger here is much weaker than that for a settlement price. Brief is a five-page document making an argument that, almost certainly, does not have to be reproduced verbatim in order to be fully understood. Consequently, I would advise Professor that Brief is copyright protected. Although the scope of copyright protection in Brief may be “thin,” it would be protected against verbatim copying (absent fair use).


            Is it possible that Brief is a work made for hire, so that Client rather than Lawyer would be considered the author? No. Lawyers are classically independent contractors. Nothing suggests any agreement between Lawyer and Client that Brief is to be considered a work made for hire, and in any event Brief does not fit within any of the nine categories of § 101(2) specially commissioned works that can qualify as works made for hire.


            Therefore, reproduction of Brief in its entirety will infringe, unless it is excused by fair use. To determine whether the proposed use is fair, we must look to § 107, as interpreted by the courts.


            The proposed use is teaching and is therefore within the list of examples of works in §107 that can qualify for fair use. Nevertheless, we must consider all of the four factors in § 107 to determine whether the use is fair.


            The first factor is the purpose and character of the use. Here the Supreme Court in Campbell (text p. 717) has told us that a transformative use is more likely to qualify than a verbatim copy. In this case, Professor proposes making a verbatim copy, although the audience at which the work is aimed (students) is different from that of the original Brief (judges). It is questionable whether a mere change in the intended audience counts as “transformative” within the meaning of the Supreme Court’s opinion, although some cases do suggest that a change of context in otherwise verbatim copying can be deemed “transformative.” Also, the proposed use is educational, which favors fair use, although presumably the book will also be sold at an attempted profit, so it is a commercial use as well. This is presumably not the only brief that may effectively teach legal writing, and since few lawyers worry about the derivative market for their briefs, most are likely to grant permission under circumstances like these. Therefore, it is not clear that education will suffer very much if students are denied access to this brief in the form that Professor wishes to publish. Overall, this factor seems to be slightly negative for Professor.


            L may well argue that his explicit refusal to license P’s use shows bad faith and is a mark against P under Factor 1. The NXIVM case (text p. 770) accepted in dictum that bad faith might be a negative under Factor 1 but still found that Factor favoring fair use, while Judge Jacobs’s concurrence cogently argued that bad faith should not be a factor in the analysis at all. And Campbell itself (text p. 723n.18) refused to consider that a denied request for permission might weigh against a finding of fair use, on the ground that the offer to license might simply have been a good faith desire to avoid litigation. That could just as well have been the case here.


            The second factor looks to the nature of the copyright-protected work. In this case, Brief is unpublished, unless availability at the courthouse counts as “publication,” but the last sentence of §107 makes it clear that the unpublished nature does not in itself prevent a finding of fair use. In other respects, the nature of Brief places it more in the group of works for which courts tend more readily to find fair use. It is not a work of fancy or fiction but an argument designed to persuade human beings to act in a particular way, and indeed in a way that affects legal rights and duties. Other lawyers dealing with similar issues before the courts may feel it necessary to adopt this argument as the one most likely to effect the desired result. In this sense, a legal brief has a degree of functionality that is lacking in most traditional literary works. However, Professor is not using Brief to attain a particular result in court. Rather, she wants to use it as an example of how good arguments are constructed. So, whatever limits might flow from the functional nature of the use of Brief in court, they have little or no application to Professor’s intended use. Moreover, denying protection to Lawyer’s overall argument is one thing. It is quite another to deny protection to the verbatim language used by Lawyer to make the argument. So, while the nature of the work copied could more readily subject it to fair use, that nature does not argue strongly, if at all, for a finding of fair use here.


            The third factor is the amount and substantiality of the portion used in relation to the copyright-protected work as a whole. Here Professor is proposing to use the entire Brief. This factor is usually analyzed in the light of the Factor 1 purpose. Factor 1 we have deemed only slightly negative, and to the extent we take Professor’s purpose to be education, it may justify a greater taking. However, it is difficult to justify taking Brief in its entirety, as much if not all of the educational purpose could probably have been achieved with a lesser taking. Factor 3 works against a finding of fair use, but perhaps not weightily against.


            The fourth factor is the effect of the use upon the potential market for or value of the copyright-protected work. In Campbell the Supreme Court said that no presumption of market harm would be applied to even a commercial use that extended beyond mere duplication, but that clearly would not help Professor here, because she intends a verbatim reproduction. Moreover, publication of Brief by Professor would surely reduce the demand for Brief in, say, another book aimed at a similar audience. Is this under Campbell the type of derivative market a lawyer might be expected to enter? Most lawyers do not attempt to sell their briefs for educational purposes. And if P is the only person attempting such a book, P is the only market at present and we have the circularity problem of PUP and Texaco again. Moreover, can we argue that recognizing a derivative market of this type (students learning how to write briefs) would give Lawyer no additional incentive to write over what he already has from his client relationship? After all, Lawyer was not only paid by Client; he had an ethical obligation to do his very best in representing Client before Court. Recognizing a derivative market could arguably result in a conflict of interest for lawyers, as they might be thinking of that market in writing their briefs, possibly to the detriment of the interests of their immediate clients. While that argument has some theoretical plausibility, it is doubtful that is of any concern to federal copyright. If a state wishes to require lawyers to give up copyrights in their briefs as part of their ethical obligations to clients, they are presumably free to do so. [Actually, this point may not be so clear. Federal copyright law may preempt state rules here. An interesting question, but beyond what we studied in this course.] Notwithstanding all of the above, copyright law generally recognizes the right of copyright owners to govern the use of their works in derivative markets, and a court would likely so hold in this case, as in PUP.


            I conclude that the four-factor analysis of § 107 would likely result in a holding that Professor’s proposed reproduction of Lawyer’s entire copyright-protected Brief in a book aimed at teaching legal writing is not a fair use. At a minimum, a conclusion that P’s proposed use of the entire brief is fair would be risky.


            There is always the possibility that a court would apply footnote 10 of Campbell and award Lawyer only damages (in effect, a compulsory license) rather than an injunction, should Lawyer sue for copyright infringement. That might be a sensible result in this case, because Lawyer’s Brief is already available for those who wish to make use of its ideas and unprotected elements, and indeed four “critical” paragraphs have already been published. Still, how federal courts will apply footnote 10, if at all, is open to question, and it would be rash for Professor to assume that she can go forward with no more than an obligation to pay some sort of royalty to Lawyer.


            The final question is whether the four critical paragraphs of Brief that found their way into Court’s opinion can be freely used by Professor. If those four paragraphs remain copyright protected after incorporation into Court’s opinion, the fair use analysis would not significantly differ from that already given. (The use is not of the entire Brief, but we are told that the four paragraphs are “critical,” so the result could hardly be different. Perhaps the need to be able to quote “legal” materials also somehow changes the analysis of Factor 2, but that is more appropriately dealt with in the copyright-protectability analysis directly.) Therefore, the question is whether copyright is lost by incorporation into Court’s opinion.


            That Court did not credit Lawyer with authorship should in no way reduce or eliminate Lawyer’s rights, but adoption of Lawyer’s language in the opinion is a different story. First, there is probably an implied license in a court to adopt language from briefs. It is done all the time, often without giving credit. (Consequently, Court has probably not infringed Lawyer’s copyright.) Moreover, the opinion in a sense has the force of law, much like a copyright-protected “model” statute or regulation that is adopted by a legislature or administrative agency. The Veeck case (text p. 280) holds that a model statute falls into the public domain as and to the extent that it becomes “law” in a particular jurisdiction, at least to the extent of reproducing the laws and statutes of that jurisdiction, although it retains its protected status as a model code. The same reasoning applies to judicial opinions that adopt copyright-protected language from briefs. The opinions become part of the “law” in that jurisdiction. Lawyers and general citizens must have free and full access to the law and its sources. Having submitted a brief to a court that might adopt some or all of it in this way, Lawyer assumed the risk of losing, pro tanto, his copyright. Consequently, I would advise that Professor can reprint the four critical paragraphs, probably with a description of the rest of Lawyer’s argument in her own words. That is likely to be as effective a teaching tool as verbatim use of the entire Brief. Of course, as a matter of courtesy, Professor should give Lawyer full credit for whatever of Lawyer’s Brief she ends up putting into her book.