Should Attorneys Get Copyright Protection for Documents Filed in Lawsuits?

Two attorneys have filed a copyright infringement lawsuit against Westlaw and LexisNexis for selling copies of the pleadings and other documents attorneys submit during court proceedings. The case is White v. West Publishing Corp. (S.D.N.Y., filed Feb. 22, 2012). You can read the complaint here.

Curious but Little-Discussed Aspect of This Case

What I find most curious about this lawsuit which seeks class action status is its inclusion of works that have no copyright registration. According to the complaint, Subclass R consists of those attorneys who have registered the copyright in their pleadings and Subclass NR consists of those attorneys who have not registered the copyright in their pleadings. The overwhelming majority of attorneys do NOT register the copyright in documents they file with a court.

The lack of copyright registrations is a problem. Under current law, you have a valid copyright as soon as your work is “fixed in a tangible medium of expression”. That’s copyright law speak meaning you have a valid copyright as soon as you write or record your work. Hence, copyright registration is not necessary to have rights in your work. However, copyright registration is required before you can file a copyright infringement lawsuit. That seems to mean that the claims for any attorneys in Subclass NR can be easily dismissed. If there is any exception to the registration-before-lawsuit requirement for class action cases, I am not aware of it.

Other Commentary about Copyright Protection for Lawyers’ Briefs

There has already been much discussion about the attorneys’ chances in the White v. West Publishing Corp. Some commentators believe the lawsuit to be frivolous and predict the attorneys will be laughed out of court. The Voloch Conspiracy blog offers a more even-handed analysis of whether Westlaw and LexisNexis’ use of the brief qualifies as copyright infringement.