Locke Lord QuickStudy: SCOTUS Holds that Annotations to Georgia Code Are Not Copyrightable

On April 27, 2020, the United States Supreme Court held that annotations in the State of Georgia’s official codes are not eligible for copyright protection. The 5-4 decision marked the first time in over a century that the Court applied the “government edicts doctrine,” under which judges (and now legislators) cannot be “authors” of works—and may not claim copyright in such works— when the works are produced in the course of the judges’ and legislators’ official duties. 

Georgia has a single official code—the Official Code of Georgia Annotated (the “OCGA”). In addition to the full text of every Georgia statute currently in force, the OCGA includes non-binding annotations underneath every statutory provision. The annotations in the current version of the OCGA were produced by Matthew Bender & Co. (“Bender”) under a work-made-for-hire agreement with Georgia’s Code Revision Commission (the “Commission”). The Commission—which is a state entity comprised mostly of legislators and funded through legislative appropriations—assembles the OCGA. Pursuant to the agreement, the Commission specifies in great detail what must be included in the OCGA annotations. The agreement further provides that any copyright in the OCGA vests in the State of Georgia. Bender’s parent company, LexisNexus Group, has an exclusive license to publish, distribute, and sell the OCGA, and it offers hard copies of the OCGA at a retail price of $412. A free online version of the OCGA is made available by LexisNexus without any annotations.

Public.Resource.Org, Inc. (“PRO”), pursuant to its stated mission to facilitate public access to legal materials and government records, posted a digital version of the OCGA (including the annotations) on various websites where members of the public could download it for free. PRO also sent copies to various organizations and state officials.

The Commission sued PRO for copyright infringement on behalf of the Georgia Legislature and the State of Georgia. The District Court sided with the Commission, granting partial summary judgment and entering a permanent injunction against PRO’s distribution activities. The court held that the annotations were copyrightable because they were “not enacted into law” and lacked “the force of law.”

The Eleventh Circuit reversed, identifying a multi-factor inquiry to determine whether a work is “attributable to the constructive authorship of the People,” and thus in the public domain. Under that test, it found that the annotations were not copyrightable.

The Supreme Court affirmed the Eleventh Circuit’s reversal, but for different reasons. According to the Court, 19th-century precedent establishing the government edicts doctrine “reveals a straightforward rule based on the identity of the author.” Whether or not a work has the force of law, it is not copyrightable if its author is a judge or legislator who produced the work in the course of his or her official duties.

The 19th-century cases had applied the government edicts doctrine only to judicial opinions and judicially authored headnotes and syllabi of opinions. Writing for the majority, Justice Roberts reasoned that if “judges, acting as judges, cannot be ‘authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.”
Applying this framework to the annotations in the OCGA, the Court noted that the “author” for copyright determination purposes was not Bender, but the Commission, which functions as an arm of the Georgia Legislature. Since the Commission creates the annotations in the discharge of its legislative duties, the Court held that the government edicts doctrine applies and the annotations are not protected by copyright.

In closing, it is important to note that one key aspect of this decision was that the work-made-for-hire agreement between Bender and the Commission meant that the Commission (not Bender) was the purported author of the annotations. As such, the OCGA annotations were not eligible for copyright protection because the Court ruled the Commission was an arm of the legislature acting in its official duties. If, instead, Bender had acted as an independent contractor and given the Commission a license with respect to the annotations, then Bender would have been the author and the outcome of this case may have been different.

The Supreme Court’s opinion is captioned Georgia et al. v. Public.Resource.Org, Inc., No. 18-1150.

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