What (legal) basis gives lawyers the ability to re-use legal contracts originally written by others?

Question

By all accounts that I've heard, lawyers (and others) routinely create new contracts based largely upon existing contracts they've come across in one way or another. If a novelist did the same (using others' novels) it would be copyright infringement. I've been told that copyright does not apply to legal documents because they are primarily functional, and not aesthetic, and therefore not subject to copyright. Sounds logical enough, but I'd like something a bit firmer than that - a web page or case law or something that spells it out.

Just to be clear, I'm not talking about whether it's wise to use a document in the exact same form as it was used for someone else, but rather, by what legal right/basis someone may use a legal document, that, say, they find on the internet, or in a published case summary or whatnot, and edit and modify that document to their own needs.

Again, this seems to be widespread practice, and no one I know has said you CAN'T do it, but I'm just looking for something a little firmer - a provision of the copyright act, or a prior legal ruling, or something that speaks to this more or less directly.

Answer 1

I think this is a really excellent question and I'm linking to a law review article on this topic (the link is to a .pdf so be sure you have Acrobat installed before you click). I do remember that in the Enron case, where Enron's lawyers were filing 200-page pleadings, they actually put a copyright notice on the pleadings!

Answer 2

Great question. And the answer is that there has been litigation initiated by attorneys whose writing has been taken by others. The fact is that documents are copyrighted at the moment they're fixed in a medium from which they can be retrieved, and thus, whether a contract or a brief, one takes from another attorney and his or her own peril.

That having been said, it's quite common for attorneys to buy forms, with appropriate rights. And it's equally common for attorneys to edit previously written documents for their new uses.

Whether those constitute derivative and thus infringing works of a copyrighted original is something that can only be determined on a case by case basis.

But, if you're seriously interested in researching the case law, hop over to Lexis/Nexis or Westlaw, and fire away. I'd suggest the federal databases.

Answer 3

Well, this is just from experience, twelve years of it not counting Law School...

There are lawyers that do use other peoples' forms to make Wills, Trusts, Deeds, etc. It's such common practice that there's no thought of trying to copyright them, but... it's called 'forms practice' and I've seen a lot of lawyers go down in flames doing it.

Need a Will? I'll just pull out this one that Lawyer Bob did over here and copy that. Oh, Testator died. Submit Will to probate. Oh man, Testator had kids from a prior marriage that are contesting the Will, I didn't think to ask about that...

Need a Trust? I'll just pull out this one that Lawyer Bob did over here and copy that. Oh, you want to get the property back out? Gee, Lawyer Bob made an irrevocable trust, so I guess you did, too.

Need a Deed? I'll just pull out the current legal description in the one Lawyer Bob made for you. Neighbors are challenging your property lines? What's the deed say? Your description doesn't close? You think it's MY fault? Want damages?

Lawyers who do that do so at their own peril, and unfortunately their client's as well. There's a REASON good lawyers make good money.

Answer 4

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Answer 5

As long as they aren't copyrighted, it is perfecly okay. A lawyer may draft an agreement once, and re-use it as he pleases.