Wednesday, May 21, 2014

Copyright status of original Commonwealth works

I'll be brief. Citations omitted.

Federal copyright law preempts any common law or state statutory provisions that may linger around. Under the most recent comprehensive revision of federal copyright law, that went into effect on January 1, 1978, copyright exists from the moment an original work is reduced to tangible form. Registration of a copyright with the U.S. Copyright Office is optional.

Ownership of a copyright belongs to the author of the original work unless the work was produced by an employee in the course of his or her employment (work for hire), in which case ownership is with the employer. This, is subject to modification by mutual agreement, and copyright ownership is subject to alienation or transfer.

By statute, original works created by the federal government are public domain, with exceptions (?).

Original works created by state or local governments are not, by way of federal law, public domain. The states are free to do with their own copyrighted works for hire as they see fit.

Justices of Kentucky appellate courts are employees of the Commonwealth and appellate decisions produced by those Justices in the normal course of their state employment are automatically protected by federal copyright law when written. Actual publication is not a prerequisite for copyright protection. Notice of copyright is not a prerequisite for copyright protection. Registration with the U.S. copyright Office is not a prerequisite for copyright protection. Copyright protections just happen as a matter of law.

The Commonwealth of Kentucky has not, by statute, waived or relinquished copyright in any original works to which it is entitled to copyright protection. The Kentucky Supreme Court has not adopted any rule to relinquish copyright in any original works to which it is entitled to copyright protection.  For the most part, the Commonwealth has not registered many copyrights with the U.S. Copyright Office, although in some instances the Commonwealth has registered a copyrighted work. No Kentucky court opinions have been registered.

Registration of a copyrighted work is a necessary prerequisite to maintain a copyright enforcement proceeding under federal law.  Registration of a copyrighted work can happen at any time, but civil penalties for infringement are available only for infringement after the date of registration.

Kentucky Supreme Court opinions, for example, are copyrighted and owned by the Commonwealth of Kentucky, but the copyright is not enforceable in court until such time, if any, that those opinions may be registered with the U.S. Copyright office.

There is no reason to suppose that the defense of 'fair use' does not apply to original works owned by the Commonwealth.

Whew! The end.


Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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This is not legal advice and I am not a lawyer.

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