Georgia v. Public Resource.Org: Decision of the Supreme Court 27 April 2020 – Case No. 18-1150

Non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law ( Banks v. Manchester , 128 U.S. 244 (1888)). The same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. If annotations to the law or certain statutes are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection. Instead of examining whether given material carries “the force of law,” it is only relevant whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable. The two cases Wheaton v. Peters , 8 Pet. 591 (1834) and Banks v. Manchester , 128 U.S. 244 (1888) establish a straightforward rule: Because judges are vested with the authority to make and interpret the law, they cannot be the “author” of the works they prepare “in the discharge of their judicial duties” (Banks, 128 U.S., at 253). This rule applies both to binding works (such as opinions) and to non-binding works (such as headnotes and syllabi). It does not apply, however, to works created by government officials (or private parties) who lack the authority to make or interpret the law, such as court reporters (compare with Callaghan v. Myers , 128 U.S. 617 (1888), at 647). The animating principle behind this rule is that no one can own the law. Thus, 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. It follows further that copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties. A work can also be created by the legislature when the legislature commissions a third party with the preparation of the work. First, it is relevant who is deemed as “author” of the work under the Copyright Act. In the case of work-for-hire agreements (17 U.S.C. §201(b)) this is the principal [the Code Revision Commission in this case]. Second, even if the principal [the Code Revision Commission] (as the rightholder) is not identical with the legislature, the principal’s work can be attributed to the legislature if the principal wields the legislature’s authority when i