It has become a matter of course that any commercial publication is going to have a copyright notice slapped on it by the publisher regardless of the actual copyrightability of the material. I first noticed this when perusing a book store several years ago and came across a published copy of Congress’s 9/11 Commission Report. The Report is non-copyrightable as a government work. In this case, a publisher republished the Report in its entirety in book form, without adding any additional material, but nevertheless placed a copyright notice on the book in the publisher’s name. Over the years, I’ve notice copyright notices on all manner of materials otherwise devoid of copyrightable content, including some deposition transcripts.
The Exclusive Rights blog now points to an interesting unpublished opinion from the 10th Circuit concerning court reporters and their transcripts. A transcript, of course, is nothing more than a written record of all of the oral testimony and arguments made during court proceedings; the transcript is expected to be an exact and unedited record of every spoken word, with each speaker indicated. As such, transcripts are not copyrightable because, among other reasons, the reporters are not “authors” under the Copyright Act — the material, to the extent it is copyrightable at all, is not original to the court reporter.
This didn’t prevent a court reporter from complaining, however, when an attorney obtained copies of the reporter’s trial transcripts under New Mexico’s Inspection of Public Records Act, instead of paying the court reporter for a copy at a higher fee. When the attorney was ordered to pay the court reporter a little over $4,000, the attorney appealed and the 10th Circuit overturned finding that to require the attorney to pay the fee would effectively give the court reporter a copyright in his transcripts:
In broad terms, [the court reporter's] fee claim rests on the tacit premise that court reporters in some legal sense own the content of the transcripts they prepare, such that they are entitled to remuneration whenever a copy of a transcript is made (even if they played no role in making the copy). To accept this premise would effectively give court reporters a “copyright” in a mere transcription of others’ statements, contrary to black letter copyright law. See 2 William F. Patry, Patry on Copyright, Ch. 4 Noncopyrightable Material, § 4.88 (Updated Sept. 2008) (court reporters are not “authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings”).
–Matt
