In the court order I mentioned in the immediately preceding post, the following sentence caught my eye: “At the bottom of each page of the [product purchase agreement], there is a copyright notice that reserves all rights in the document to Nokia, indicating that Nokia was likely the drafter of the contract.”
It’s rare that I encounter any mention of including a copyright notice in a contract, so I thought it worth revisiting the topic.
In a 2006 New York Law Journal article I discuss copyright aspects of contract drafting (go here for a PDF copy). Here’s what the article has to say about copyright notices:
One element of any copyright protection program would be to include a copyright notice in each iteration of a given contract. A notice wouldn’t be necessary—innocent copying is not a defense to copyright infringement—but it would put others on notice of your copyright and would likely dissuade copying. It would be best to place the copyright notice in the body of the contract, among the “miscellaneous” provisions, rather than putting it in a footer, given that footers are often omitted when a contract is copied. In particular, a copyright notice that’s in a footer would likely be omitted when a contract is filed on EDGAR.
Something I omitted from this account is that if a work bears a copyright notice, a court likely wouldn’t give any weight to a claim by the defendant that its infringement was innocent—that it hadn’t realized that the work was protected. An innocent-infringement defense can reduce the damages that an infringer would otherwise be required to pay.
Including a copyright notice in a contract would likely make sense only if (1) the contract exhibits originality and creativity and (2) the copyright holder is also party to the contract. For example, even though a law firm would likely own the copyright in a contract that it had drafted for a client, that client would likely be disconcerted to find in the contract a copyright notice to that effect.
Have you ever used a copyright notice? Could you imagine ever doing so?
12 thoughts on “Should You Include a Copyright Notice in Your Contracts?”
I put them on mine because our contracts are a comeptitive advantage. They are significantly better than most of our competitors’ contracts. Many of our competitors resell our services. So, I don’t want them simply adopting our contract forms. That said, this is the first place where that has been the case, and the first place that I put copyright notices on contracts.
I realize that copyright noticeas don’t really change anything; not including the copyright notice does not diminish our ownership rights. But ignorant business people — the ones most likely to get a leg up by copying our forms — think the copyright notice is hugely significant.
Why do you assume the firm would likely own the copyright? If, as you describe, it’s a copyright-able creation and the firm did it for a client, my expectation would be that it’s a work for hire owned by the client.
Random: Check out my article on this issue. It would be counterproductive for me to try to boil it down. Ken
Having read Mr. Adams’ previous position on copyrights for contracts, I remain unconvinced that copyright would provide any meaningful protection for such works. The essence of contract language is its functionality–that is, the language it contains has legal effect. “Better” contracts are better not because they are more elegant or more appealing in some esthetic sense, but because they are better at their function, namely, achieving a desired legal result. Ordinarily, copyright owners of “functional” documents such as computer programs argue that copying is not necessary to achieve the same desired functionality because different language will obtain the same result. With a form contract, however, the whole selling point of the contract is that it produces a better result, or at least is more likely than other language to obtain a desired result.
I am curious whether a claim of infringement of a form contract has ever been successfully brought. I suspect such cases are rare, though I haven’t researched the matter.
Kevin: Contracts are entitled to copyright protection not with respect to what they say, but how they say it. If I expend resources preparing a contract template that says essentially the same thing as Acme’s contract template, but does so much more clearly and concisely, I should be entitled to claim copyright protection.
As regards relevant caselaw, I point you to my New York Law Journal article; the above post includes a link to it.
If your argument is that your contracts, and the clauses they contain, are merely more concise and stylistically appealing than other contracts that achieve the same results, then I agree that your particular expression of contract terms is protectable. To the extent that your language is functional (in the sense that it is more likely to produce the desired legal effect than other language) then I think you have a functionality problem. And it does appear that some of your claims for Koncision are functional: for example, you cite as one advantage that use of Koncision will “reduce the likelihood that confusing contract language leads to a dispute.”To take it a step further: Let’s say that one of your form contracts is the subject of litigation. The court cites your paragraph on (for example) the exclusion of consequential damages, extols it as a model of clarity, and finds it enforceable, preventing the plaintiff from recovering. Future drafters in that court’s jursidiction would be foolish not to adopt your language in their own agreements–indeed, if there were no alternative provisions similarly found enforceable by the court, it might be malpractice for them NOT to copy your provision.Contract language occupies an interesting intersection of expression and functionality, similar to computer code but much harder to analyze because the functionality is much more subjective. Ironically, the arguments that support copyright protection (language is a matter of style rather than substance) undercuts one of the main arguments for using such form contracts in the first place.
Kevin: Interesting. You might have a point, but only when dealing with the smallest building blocks of contract language. Anyone interested in protecting their investment in innovative contract language is likely to be on the lookout for more extensive copying. Ken
Point taken–the wholesale copying of your contract would be much harder to support from a copyright perspective.
That still leaves the issue of practical enforceability, particularly if you don’t include some claim of authorship and copyright in your agreements. As you note, copying of other people’s contracts isn’t just commonplace, it’s expected. Organizations that wish to protect their form agreements from wholesale copying (such as AIA) go to rather elaborate lengths to make electronic copying difficult, and place copyright notices all over their agreements. From your posts, it sounds as though you don’t want to take that approach for a number of business reasons. While that’s certainly understandable, it’s going to be hard to stop people from copying your work beforehand–you’re going to be stuck sending C&D letters after the fact.
For what it’s worth, I’m not at all against using intellectual property laws to protect your work product, which is undoubtedly valuable. I am just not sure how easy using copyright to protect your work product is going to be.
Kevin: Given that it would be counterproductive to insist that customers include a Koncision copyright notice in their Koncision output documents, I’m reconciled to having to respond with cease-and-desist notices.
But more to the point, I’m mostly interested in this issue as a way to get people to reconsider how they approach the contract process. Otherwise, my priority is getting people to use Koncision, not policing how they use it!
I realize I’m four years late to this discussion, but it’s one of the better ones I’ve found even today on this subject. So I’m commenting in case future readers want to have another opinion on this. I wanted to chime in that I think Kevin is absolutely right. Copyright really doesn’t strike me as an appealing way to try to protect a contract. You effectively face a legal Catch-22 with the functionality contract. If you argue that the contract language you have created is better than alternatives because of how concise/powerful/clear/etc., then you have admitted that your language has a useful legal function, which makes it unable to attain copyright protection. In order to gain copyright protection, you would have to admit that your language is legally useless and purposeless, which means that it has no effect contractually. That is a hard pill to swallow if you want to protect your contract, as you are admitting that your contract is pointless and ineffectual.
I suppose one way to try to fix this would be to do something similar to what they do for maps. Because maps are functional from a copyright perspective, virtually all professional maps contain at least one hidden intentional “error”. Because this error is not helpful (the exact opposite, actually), at least that part of the map is not barred from copyright protection due to the functionality doctrine, so the owner of the map can potentially claim copyright infringement if that part of the map is reproduced. Perhaps you could do something similar with contracts–add a bit of totally useless information somewhere so that at least part of your contract would be protectable. Still, this seems like an extremely risky option, but it’s the only one I can see if you want to copyright your contracts.
Anonymous: Have you read my NYLJ article? I suspect not. If I devote resources to producing a template that’s clearer and more concise, why on earth should I let you copy from it? Ken
I right now am dealing with a contract that cost $20k to make and was essential for ours and a partner business model. I hope this barrier to entry will prevent competition. I would never do this if others could just copy it and that would stagnate our growth. I am all for sharing info that people are willing to share, but you seem to miss the point of copyrite, which is making it financially worth while for someone to progress the development of industries.