Are Annotated State Codes Entitled to Copyright Ownership? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Are Annotated State Codes Entitled to Copyright Ownership?

Are Annotated State Codes Entitled to Copyright Ownership?

After three years of law school and many years on the bench, you are now an Associate Justice on the Supreme Court of the United States. You pen a historic opinion that will surely be included in law school textbooks for future generations of lawyers. Do you own copyright ownership in the opinion? The answer is “no,” under the government edicts doctrine.

In a pending case, the Supreme Court will decide whether annotations of the Georgia state code are entitled to copyright protection.1 U.S. copyright laws provide that any work by the U.S. government cannot receive copyright protection.2 Also, under the judicially created government edicts doctrine, judicial decisions and statutes are not copyrightable.3 If the applicable statute and precedents are seemingly clear on the matter, why did the Supreme Court grant certiorari to begin with? It is because annotations, unlike actual laws, lack the force of law, which is a defining characteristic of a government work. The Supreme Court will therefore rule on whether valid copyright ownership can ever subsist in the annotations that are not arguably a government work.

The factual background of the case is relatively straightforward. The Georgia General Assembly entered a contract with LexisNexis to compile an annotated version of the state code. Public.Resources.Org, a non-profit, sought to share with the public the annotated state code for free under its belief that people should enjoy better access to government materials. The Code Revision Commission, as a part of the Georgia General Assembly, initiated a lawsuit to enjoin Public.Resources.Org by claiming its copyright ownership in the annotated state code. The Northern District of Georgia granted an injunctive relief.4

On appeal, however, the 11th Circuit reversed the district court ruling. The 11th Circuit ruled that Georgia has no valid copyright ownership in the annotated state code because the work at issue is “intrinsically public domain material.”5 Under the theory of representative democracy, the 11th Circuit found that “the People, as the constructive authors, are also the owners of the law” for the purposes of copyright ownership.6 The 11th Circuit also pointed to several provisions in the contract that provide highly specific instructions as to what LexisNexis must do and must not do in compiling the annotations7, thereby concluding that the Georgia Assembly has the ultimate control over the annotations.

Aside from contested doctrinal issues, this case brings forward interesting policy questions in the subject of copyright. John Locke theorized that one is entitled to own the thing one labored to create.8 This idea that effort creates ownership is deeply ingrained in the American psyche and firmly embedded in property law as a general guiding principle. Indeed, even in copyright, this Lockean vision led to the judicial creation of the “sweat of the brow” doctrine, which the Supreme Court later discarded in Feist.9 Yet, would not one think, after reading only the facts of the case, that Public.Resources.Org is, in some sense, a “bad guy?” Although the non-profit (legitimately) claims that the purpose of sharing the annotated version of the state code is for the public benefit, it is essentially “stealing” the work LexisNexis labored to create under the contractual arrangement with the state. The Supreme Court will hear the case and eventually announce its opinion, fully knowing that its opinion is not copyrightable.


  1. Georgia v. Public.Resources.Org, No. 18-1150 (U.S. filed Mar. 1, 2019).

  2. 17. U.S.C. § 105.

  3. See Wheaton v. Peters, 33 U.S. 591 (1834). See also Bank v. Manchester, 128 U.S. 244 (1888).

  4. Code Revision Comm’n v. Public.Resources.Org, 244 F.Supp.3d 1350 (N.D. Ga. 2017).

  5. Code Revision Comm’n v. Public Reserouces.Org, 906 F.3d 1229, 1232 (11th Cir. 2018).

  6. Id. at 1232.

  7. Id. at 1243.

  8. See John Locke, The Second Treatise of Government (1689).

  9. See Feist Publ’ns v. Rural Tel. Serv. Co., 449. U.S. 340 (1991).

Hongjun Byun

Hongjun Byun is a second-year J.D. candidate at Fordham School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. He worked at the Hansen Intellectual Property Institute during the summer of 2019. He holds a B.A. in Economics from New York University.