Is a filing in the public domain?

Question

Apparently, a Comic book shop filed a complaint as a comic book.

The third amended complaint in the case has, in part, the style of an illustrated novel. But it is also a court filing. Court Proceedings are a matter of public matter, and open to the public...

A graphic novel is clearly a creative work and could have copyright. But this is a court filing. Was it as a result put in the public domain?

Answer 1

Court filings are, in general, matters of public record. This does not automatically put them into the public domain. This will mean that, absent a special order of the court, anyone will be able to read this filing as pert of the court records.

Many courts now make all or parts of their records available on the web. But the copyright holders will possibly retain their rights to authorize the making of further copies, and surely retain the right to authorize the making of derivative works, and their other rights that are part of the copyright bundle, such as the rights of public performance. These rights would not be retained if the work had been placed in the public domain.

Answer 2

No.

Works made by federal employees, in the course of their official duties, are exempt from copyright under 17 USC 105. That includes opinions written by federal judges, as well as their orders etc., so long as such documents are created in the course of the judge's employment (and not, say, a photograph taken while the judge is on vacation). However, a filing such as that comic book is not a work of a federal employee in the first place. It's the work of either a party or their lawyers. When those filings are redistributed for noncommercial, educational purposes (see e.g. RECAP), there may be a fair use defense under 17 USC 107, but there is no good case law to that effect, and any such defense would be highly fact-specific, so it would be advisable to consult a copyright attorney before proceeding.

Answer 3

"Public domain" refers to works that have no copyright protection, generally due to their age. I don't think there's much an argument that this comic is in the public domain.

There are, however, strong arguments supporting the public's the right to access, copy, and redistribute the comic.

Roughly the same question came up in White v. W. Publ'g Corp., 29 F. Supp. 3d 396 (S.D.N.Y. 2014), where lawyers brought copyright actions after finding their briefs publicly available on Westlaw and LexisNexis. The court granted summary judgment for West and Lexis after finding that incorporating their briefs into their online databases was fair use. The court ran through the standard fair-use factors and concluded that none of them favored the plaintiffs:

1. The work was transformative because the lawyers wrote the briefs to secure specific legal outcomes for clients, while West and Lexis used them as parts of an interactive research tool.
2. The nature of the copyrighted briefs was to offer "functional presentations of fact and law," making them factual works with less copyright protection that more creative works of fiction.
3. West and Lexis copied the entirety of the copyrighted works, but doing so was necessary to integrate the documents into the databases.
4. The use of the briefs did not impair the market for the originals because there was no meaningful market for licensing the briefs.

As always, the fair-use analysis is fact-intensive, and there are important differences between the two cases, but I'd be comfortable arguing for a broad application of fair-use to most copies of the comic. Even the most egregious case, -- imagine you just pulled it down from PACER, printed off 100 copies, and sold them as "tales of corporate intrigue" for $5 each, you're still in largely the same position as Lexis:

1. Your work is transformative because the lawyers made it to secure a specific legal outcome, while you are using it as a device for entertainment. This points toward fair use.
2. The nature of the copyrighted work remains a functional presentation of fact and law, i.e. a factual work with reduced protection. This points toward fair use.
3. You would be copying the entirety of the copyrighted work -- or maybe less, if you omitted the several pages leading into it -- but doing so would be necessary to tell the whole story. This is largely neutral.
4. The effect on the market is your biggest vulnerability, because there is perhaps some conceivable market for licensing a legal filing when it is as creative as this. But I think it probably remains small and is unlikely to .

But in the end, you have at least two fair-use factors cutting in your favor, and maybe even three or four. And even if it's not fair use, this might be a rare case where there's a difference between fair-use protection and First Amendment protection, as the First Amendment protects both your right to access court records, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986) (“If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches.”), and your right to distribute information you've legally obtained, Bartnicki v. Vopper, 532 U.S. 514,(2001).

Answer 4

There is a theory (for California) that FOI type laws might not apply

Gov’t Code § 6254(k) which exempts

Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

The theory is embodied in a Cal. Att'y Gen'l opinion that

An elementary or high school district must provide a copy of a textbook or other written instructional material used in the district pursuant to a request, accompanied by the requisite fee, made pursuant to the California Public Records Act unless: (a) it is test material exempt from disclosure by the Act; (b) providing the copy would infringe a copyright; or (c) providing the copy would constitute an unreasonable burden on the operation of the district.

However, Texas (where the lawsuit exist) is not California. The Texas public records law, subchapter C, articulates the exceptions to disclosure. This subchapter is excruciatingly detailed, and virtually all of the exceptions relate to confidentiality (not potential subversion of property interest). There is no statutory exception to the disclosure requirement in Texas.

The fact of being a public record means that the clerk of the 151st District court can't refuse to disclose the petition ('cuz it is a public record). You may legally request a copy, at your reasonable expense. You may not re-disclose that document, that is, the obligation of the clerk to disclose the petition, under Texas law, does not cancel US copyright law (xref Supremacy Clause).