Cite as 906 F.3d 1229 (11th Cir. 2018)
The Supreme Court first addressed whether a government edict can be copyrighted in Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 8 L.Ed. 1055 (1834). The Court unanimously held that “no reporter has or can have any copyright in the written opinions delivered by this Court; and that the judges thereof cannot confer on any reporter any such right.” Id. at 668. The Court was interpreting the Copyright Act of 1790, but it did not explain the foundations for the rule that “the law” was excluded from copyright protection. See id. at 593.
The Court revisited the question in Banks v. Manchester, 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888), and held that the opinions of state court judges, just like Supreme Court opinions, were not copyrightable. In Banks the Court considered an infringement suit filed by a publishing firm that had published official reports containing the decisions of the Supreme Court of Ohio against a defendant who had published the same material in the American Law Journal. Id. at 249, 9 S.Ct. 36. An Ohio statute provided for the appointment of an official reporter for the Supreme Court of Ohio, and tasked him with compiling the decisions and other materials authored by the judges and securing “for the benefit of the state” a copyright on the compilations. Id. at 245, 249, 9 S.Ct. 36. The Ohio statute also required the Secretary of State to contract with a publisher, who would be given the exclusive right to publish the reports compiled by the official court reporter “so far as the state can confer [such right].” Id. at 246, 9 S.Ct. 36. The plaintiff publishing firm in Banks was the chosen publisher, and, in suing, was attempting to enforce a copyright interest in the work of the Ohio judges assigned to it by the State of Ohio.
The Court found the copyright invalid. Id. at 252, 9 S.Ct. 36. It emphasized that under then-extant copyright law only “authors” could obtain a copyright in their work. The Court determined that the reporter who had created the compilations did not qualify as the author of the opinions or the other materials written by the judges since he had not created the works. Id. Moreover, the Supreme Court explained that “[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.” Id. at 258, 9 S.Ct. 36. Thus, the Court rested its decision on a construction of the statutory term “author” that excluded both the judges and the reporter from qualifying as authors of the material in question, which in turn meant that neither the judges nor the reporter could have conveyed a valid copyright interest to the publishing firm bringing suit.
The Court offered a number of reasons for holding that the judges could not be considered the “authors” of their work. In the first place judges “receive from the public treasury a stated annual salary, fixed by law,” and therefore can “have no pecuniary interest or proprietorship, as against the public at large, in the fruits of their judicial labors.” Id. Furthermore, although the Court said that it was only construing the statutory meaning of the term “author,” it also acknowledged that, fundamentally, “[t]he question is one of public policy.” Id. In articulating this public policy interest, the Court explained that “[t]he 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, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.” Id. Banks expressly relied on a ruling of the Massachusetts Supreme Judicial Court in Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (1886), which had similarly observed that “it needs no argument to
