States may be upset to learn that the annotated laws they create are not subject to copyright eligibility, per a recent case decided by the Supreme Court.

Georgia’s annotated laws are a compilation of all its state statutes with editor’s comments, summaries of judicial and legal opinions, and lists of reference materials. Georgia, through a commission created and staffed by members of its state legislature, licensed a third party to publish its annotated laws. When Public.Resource.Org, Inc. (or “PRO”), published Georgia’s annotated laws on its website, Georgia likely felt as if its treasure were being stolen. Accordingly, Georgia sued PRO for copyright infringement. The trial court decided for Georgia, and the appeals court decided for PRO. The Supreme Court took the case to decide whether Georgia’s annotated laws are eligible for copyright protection.

Applying the “government edicts doctrine,” which states that government officials who speak with the power of law cannot be authors of work they create in their official capacity, the Court held that the annotated laws are not eligible for copyright protection because they are created by the state legislature in its official capacity.

Georgia argued that the annotations (as opposed to the laws) are eligible for copyright protection because they do not carry the force of law, and the law that regulates copyrights expressly includes “annotations” among the works eligible for copyrights. The Court, however, emphasized that the key fact was not whether the text held the force of law, but rather that the annotated laws were authored by the state. Thus, while a private citizen’s original annotations of, say, Treasure Island may be eligible for copyright protection, a state’s annotations of its laws are not.

The Court addressed another issue involving copyright law’s applicability to states earlier this year. In a case involving videos and photos of the recovery of Blackbeard’s sunken pirate ship off the coast of North Carolina, the Court ruled that North Carolina is immune from copyright infringement suits due to sovereign immunity. McCarter English wrote about that case here. Now, the Court reaches back into Blackbeard’s treasure chest and flips the doubloon on states, removing a category of state-created publications from copyright eligibility.

This decision has implications for many other states that also work with private parties to create and publish annotated laws, as Justice Thomas pointed out in his dissent.

The case is Georgia v. Public.Resource.Org, Inc., No. 18-1150 (US, April 27, 2020).

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