ment as part of that person’s official duties.” Thus, under this prohibition, the work of any federal employee, made in his capacity as a government employee, is uncopyrightable. See, e.g., Scherr v. Universal Match Corp., 417 F.2d 497 (2d Cir. 1969); United States v. First Tr. Co. of St. Paul, 251 F.2d 686, 690 (8th Cir. 1958); Pub. Affairs Assocs., Inc. v. Rickover, 268 F.Supp. 444, 448 (D.D.C 1967). By contrast, the rule in Banks is more circumscribed, applying to a limited subclass of government works. Thus, some works made by state employees, that would be subject to § 105 if made by a federal employee, are nevertheless copyrightable under Banks. See, e.g., Callaghan, 128 U.S. at 645–46, 9 S.Ct. 177 (upholding the validity of a copyright in the work created by a state employee that was created pursuant to his statutorily imposed duties); County of Suffolk, 261 F.3d at 198 (declining to apply the rule in Banks to tax maps created by a county assessor’s office).
The reasoning of Banks points to why the rule it has announced is applicable to a more limited class of public officials than those governed by § 105’s prohibition. The Court in Banks explained, “[i]n no proper sense can the judge who, in his judicial capacity, prepares the opinion or decision, the statement of the case, and the syllabus, or head-note, be regarded as their author or their proprietor…Judges, as is well understood, receive from the public treasury a stated annual salary, fixed by law, and can themselves have no pecuniary interest or proprietorship, as against the public at large, in the fruits of their judicial labors… The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.” Banks, 128 U.S. at 253, 9 S.Ct. 36. Thus, like § 105, the Banks decision emphasizes the fact that judges are producing works in their capacity as employees, but it also goes further than § 105 and emphasizes that judges are unique among government employees. In addition to receiving “from the public treasury a stated annual salary,” judges are empowered to create “authentic exposition[s] and interpretation[s] of the law, which[ ] bind[ ] every citizen.” Id.
As a result, the mere fact that a work was created by a state-paid employee in his capacity as an employee is not enough to trigger the rule in Banks. Something more is needed. Specifically, the government official must be entrusted with unique powers beyond those possessed by the typical government employee, such as the power to pronounce official interpretations of the law.
In short, it is clear that the rule in Banks is not concerned, as § 105 is, with the works of all government employees, but rather only with the works of certain government employees, which is to say government employees who are possessed of particular powers, namely the ability to promulgate official, binding edicts. This distinction between the rules is no doubt attributable to the difference in their underlying rationales. Section 105’s prohibition is justified on the grounds that the public paid for the work and is therefore entitled to access it, and because wide dissemination of federal government materials strengthens democratic discourse. See Scherr, 297 F.Supp. at 110 (“[The] fundamental purpose underlying the prohibition [] is based on the necessity of wide public dissemination of the contents of materials produced by and relating to issues and problems of national interest, which policy is unquestionably a desirable one in a democracy, much of whose success is dependent on a well-informed public.”) (quotations omitted and alterations adopted); Hearings on H.R. 4347, H.R. 5680, H.R. 6831, H.R. 6835, before Subcomm. No. 3 of the House Comm. on the Judiciary, 89th Cong., 1st Sess. 1924 (1965)
