Cite as 906 F.3d 1229 (11th Cir. 2018)
islators who make up the General Assembly is so close that the Commission may be properly regarded as one in the same with the legislators for our purposes. As the Supreme Court has explained in another context, “it is literally impossible, in view of the complexities of the modern legislative process… for [legislators] to perform their legislative tasks without the help of aides and assistants…the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos.” Gravel v. United States, 408 U.S. 606, 616–17, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). In consequence, the Court has held that legislative immunity “applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.” Id. at 618, 92 S.Ct. 2614; see also Ellis v. Coffee Cty. Bd. of Registrars, 981 F.2d 1185, 1192 (11th Cir. 1993) (“To the extent that a legislator is cloaked with legislative immunity, an adjunct to that legislative body possesses the same immunity.”). “The test for applicability of this derivative legislative immunity is whether the legislator, counsel or aide was engaged within a legitimate sphere of legislative activity.” Id.
The basic intuition underlying cases applying the Speech and Debate Clause seems to us equally instructive in identifying which entity in the Georgia state government is the creative force behind the OCGA annotations. While the Commission’s staff and six of its fifteen members are not Georgia legislators, the Commission is plainly an adjunct of the General Assembly. As we have detailed, its staff, funding, and responsibilities all fall under the legislative umbrella. The Commission is therefore, in a real sense, the “alter ego” of the General Assembly, meaning that the creative force behind the annotations are Georgia’s elected legislators. Acting through the Commission, the legislators closely supervise and direct the production of the annotations.
Moreover, and of even greater importance to our analysis, the OCGA annotations, once completed, are subject to the approval not only of the Commission, but also to the approval of the Georgia General Assembly. The General Assembly actually votes (and must vote) to make the OCGA the official codification of Georgia’s laws and, in doing so, also votes to incorporate the annotations as part of the OCGA. O.C.G.A. § 1-1-1 (“The statutory portion of such codification shall be merged with annotations, captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials pursuant to the contract and shall be published by authority of the state pursuant to such contract and when so published shall be known and may be cited as the ‘Official Code of Georgia Annotated.’ ”). In other words, the OCGA annotations are not only authored at the direction and under the close supervision of the Georgia General Assembly, but they also obtain their peculiar status as official annotations because they are adopted annually by the General Assembly.
That Georgia’s legislators are in a very real way the creators of the annotations is a powerful indication that the annotations are subject to the Banks rule. To begin, it is apparent that the rule established by Banks that government edicts cannot be copyrighted, as applied to the works of state governments, is more limited than the statutory prohibition on copyright protection for works of the federal government. As we have explained, § 105 states that “[c]opyright protection… is not available for any work of the United States Government,” and § 101 defines a “work of the United States Government” as “a work prepared by an officer or employee of the United States Govern-
