Contract Drafting and Plagiarism

There’s been quite a bit of blogosphere chatter recently about lawyers and plagiarism. The most recent salvo is this post by Peter Friedman, who teaches legal analysis and writing at Case Western Reserve University School of Law.

In my cloistered way, I pay real attention only when the discussion touches on contract drafting. And here’s what Peter had to say on that score:

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point.

I added the following comment to Peter’s post:

To discuss contract drafting in the same context as briefs and opinions is to compare apples and oranges. In mainstream drafting, copying-and-pasting from other contracts is certainly no sin. But that’s not because unauthorized copying is OK. Instead, it’s because everyone is copying from a common pool of contract verbiage that they tweak to suit their own purposes. It can’t be attributed to a single source, so there’s no one to provide consent for copying. And no one is in a position to claim that they’ve been harmed by the copying.

But if you invest resources in preparing contract language that improves on the dysfunction of mainstream drafting, that work would be entitled to copyright protection. And you’d likely be none too pleased if someone took the liberty of copying it wholesale.

I discuss these issues in my 2006 New York Law Journal article “Copyright and the Contract Drafter.” A PDF copy is available at

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

9 thoughts on “Contract Drafting and Plagiarism”

  1. Ken, I've taken the liberty of pasting in below the comment I wrote in response to yours on my blog. Let me say up front here what I try to express at the end of the comment: I am grateful and flattered that you've engaged with me on this issue:

    First, even if it would be a copyright infringement to take language from a contract that could be identified as the language’s source to use in a new contract, copyright infringement is not plagiarism.

    Here’s the difference: if it’s a copyright infringement, attribution will not cure the infringement. In addition, if the copyright holder does not sue for infringement, the lawyer incur no penalty merely on account of the appropriation.

    Second: the day I see a successful infringement claim against someone who lifted language from one contract to use in a contract is the day I’ll believe the practice is different than what I’ve said it is.

    Third: I don’t believe a copyright infringement claim would be successful.

    The threshold question would be to identify the copyright owner. Would it be the client? Which client? Contracts are by definition texts agreed upon by more than one client. If not the client, the lawyer who drafted the language? Which lawyer? Or the firm?

  2. (comment continued)

    But even if we were to identify the copyright holder, I’m convinced appropriation of contract language for use in a contract (not for use in a form book) would be fair use, not an infringement.

    (1) The purpose and nature of the use is to fulfill the lawyer’s duty to represent the client as effectively as he can. If you have contract language that it is not worth the client’s money to improve upon, you would be violating your professional duties to the client if you discarded it or rewrote it out of a duty to notions of “ownership” of the language. This is in part the point I was making to Greenfield when I was pointing out that we don’t care who the author is. We care what the language does. In contrast, in law school — where we’re trying to judge the student’s ability to both find and create effective language — it’s crucial in making those judgments that we can distinguish between what the students find and what they create on their own.

    (2) The appropriation of contract language for use in a new contract has no negative impact on the original “author’s” potential market for that language. He is free to use that language as often as he wishes on behalf of his clients, and he is free to publish it in a form book (which would be, I suppose, the kind of derivative work that would flow from a copyright in such language if it might exist).

    (3) The nature of the copyrighted work is that it is language used to advance the client’s interests, not the lawyer’s. It is written within a practice that engages all the time in the kind of appropriation we are talking about. That language is an instrument to serve the client’s purposes. It is nothing like — just to pull out one arbitrary example of plainly copyrightable language — passages from Catcher in the Rye.

    (4) Thus, I think that even if the appropriation were of significant parts of the allegedly copyrighted contract, it would be deemed fair use.

    I think it’s interesting that Greenfield in reply to me wrote that judges may appropriate but litigators don’t, while you, Ken, write that litigators may but contract drafters in certain circumstances can’t.

    Finally, I want to explain why this hair splitting is more than a purely academic exercise. Our society is so thoroughly inculcated in the idea that our intellectual products are as much “property” as are our houses and cars that we have a very difficult time accepting it when people tell us — no, it’s not, and let me point out why. We react with things like, “Well, I never appropriate because I can always improve on other’s language.”

    But when we do what Fish does — point out that plagiarism as plagiarism is something that has very specific rules that govern only in certain very specific contexts — we begin to bust apart the instantaneous response we all have that MY WORDS ARE MY WORDS AND YOU CAN’T TAKE THEM UNLESS I LET YOU.

    I try to further that notion when I distinguish copyright and plagiarism and when I try to analyze precisely why what we’re talking about is neither.

    And this all relates to where the post started — Lewis Hyde’s brilliant book about the history of our treatment of intellectual invention — because while it’s almost a cliche to say that intellectual property is not the same as real or personal property (because among other things appropriating your words doesn’t deprive you of their use) — that distinction is profoundly important. When we treat intellectual invention like “property” we have a pronounced capacity to stifle invention.

    Constitutionally, copyright exists only to promote creation and invention. I cannot for the life of me figure out how my appropriation of Mr. Adams or Mr. Greenfield’s words would stifle their incentive to invent on behalf of their clients.

    And let me make something perfectly clear to my other readers. That people as accomplished and brilliant in their fields as Mr. Adams and Mr. Greenfield even deign to notice me is an honor. I do not in the least mean to attack them, and I criticize their points with the quite conscious fear that since I’m criticizing THEM I must be wrong. You should by all means read their blogs and whatever else you can get your hands on that they write.

  3. My view (as someone who has written template agreements published by LexisNexis, Oxford University Press and others, and as someone who practises in the field of intellectual property) is that there are some social norms (or should be) in this area that are not obvious from looking at copyright law. I'll call them template agreements – UK lawyers' usage is to refer to precedents, and I believe in the US you sometimes refer to forms.

    Direct copying of a published template agreement, in its entirety and without permission, seems wrong to me. Effort has gone into preparing the template that goes beyond "cutting and pasting" clauses from several sources to make up a complete agreement. But that permission may be broadly implied, eg if your law firm subscribes to the publication in which the template agreement is found. As a practical matter, once a template agreement has been validly copied, it is very difficult to prevent further invalid use (eg if the associate has the document on his laptop computer). It is also difficult to prevent use of individual clauses, and I wonder whether it will ever be worth the effort to try to prevent such use. I think the social norms become fuzzier with this type of activity. Personally, I am rather flattered when I see wording produced by another firm that I recognise as coming from one of my own templates (sometimes drafted many years earlier). It is certainly easier to negotiate wording that I have drafted and thought about in advance of the transaction.

    By contrast, I think the publisher or copyright owner of a template agreement has a legitimate interest in preventing wholesale use of that template (or perhaps, sets of template agreements) in other publications. This is a different kind of use, in my view, to use by the associate in repeated, one-off transactions.

    By the way, I am puzzled by how manages to steer clear of copyright issues, apparently using published SEC documents, but I haven't really looked into the legal issues.

    There is a school of thought that says that, in the future, template agreements will become widely available at minimal cost, and that lawyers will "add value" by the work they do to tailor the template to the individual transaction. See for example Richard Susskind's books. I think this view (and this business model) undervalues the effort put into generating good quality templates, but the view is consistent with how some large law firms seem to operate. On the related subject of first drafts produced for transactions, I have seen too many documents that in the first issued draft are badly written, but are "improved" in the course of negotiations when defects are spotted. My hypothesis is that some firms feel they can charge for work done during negotiations that they can't charge for in preparing the first draft. As a result, the first draft is sometimes of poor quality.

    I agree that plagiarism is a very different issue to breach of copyright, and that the concept of plagiarism has limited relevance to template agreements used by practising lawyers. For some of my university clients, it is very important that their original work is not claimed by someone else as their own. But, in general, I don't think that practising lawyers are trying to produce original work – they are trying to represent their clients' interests as best they can.

    • RE: "Direct copying of a published template agreement, in its entirety and without permission, seems wrong to me."

      Is there any law that says that it is wrong? These form agreements where the users fill in the relevant information seem to just contain those functional generic terms that have been used for many years and that no person could claim a copyright in.

      Please let me know your thoughts on this.

  4. I suspect that the analaysis of whether copyright can be enforced may be different depending on (a) who has drafted the contract language and (b) who is copying the contract language. Is it a law firm, a business or a provider of template contract language in each case?

    My suspicion is that a UK court would find a way to avoid upholding copyright in contract language where used by law firms or businesses – probably on public interest grounds. The consequences of enforcing it in a general sense would be potentially too chaotic because (despite what Ken believes!) a significant amount of original drafting is done by law firms and is frequently copied and traceable. We see our language in the documents of other firms quite often – we can only think of it as flattery. On the other hand, I think I would back Ken to succeed against another provider of template language – the public policy argument is much thinner in such a case.

    I could not find any UK case law on the subject, so it is very hard to say with any degree of certainty.

  5. I confess I am one who objects to the notion that copyrights should protect computer programs, architectural drawings or contracts. I think the notion that they should is the result of greedy people pushing the edges of laws which were originally enacted for public purposes rather than fulfilling investment-backed expectations. That said, we live in a country or maybe even a world where the length of copyrights will be continuously enlarged lest <horrors!> the Disney corporation lose licensing rights to Mickey and Minnie.

    At any rate, Mr. Adams's article indicates he is not aware of an effort to protect claimed copyrights in contracts. I find this difficult to believe given the efforts of the American Institute of Architects and other professional organizations who go to great effort to prevent copying and to make copies clearly identifiable. On the other hand, I don't know of anyone actually being prosecuted for lifting from the AIA.

  6. Although I'm intrigued by the idea of protection of contract language by copyright, it doesn't appear that you or Professor Friedman have considered the doctrines of merger or scenes a faire, at least not in any detail. It strikes me that an argument that your language is somehow demonstrably "better" than previous attempts to accomplish the same purpose is, in essence, an argument AGAINST copyright protection, because you are stating (if implicitly) that the language you have drafted is more functional than its predecessors. To the extent that language in a contract is functional, it cannot be protected by copyright.

    Consider a much simplified scenario in which only two versions of a (for example) choice of law clause exist: the original and your new, "improved" version. The original version has a success rate in court cases of 70%, but your new clause boasts a success rate of 100%. A lawyer using the old clause rather than your new clause would arguably be committing malpractice. Under those circumstances, I think it unlikely that a court is going to find a lawyer guilty of copyright infringement if he copies your clause to use in his client's contract.

    472 F.2d 1137; 1973 U.S. App. LEXIS 11786; 176 U.S.P.Q. (BNA) 456

    This appears to be the controlling case to me, and it sets forth that a copyright will not extend to form agreements.

    any comments?


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