The Guantanamo Copyright SNAFU and the History of the Government Works Doctrine

Last week, Miami Herald reporter Carol Rosenberg, perhaps best known for her coverage of government activities at Guantanamo Bay, reported that the U.S. government had violated U.S. Copyright law . . . kind of. In an effort to “rebrand” its military tribunals, the Pentagon spent about $500,000 on a new website, After all that effort and expense, it was only natural that some well-intended individual put the following notice at the bottom of the home page: “Copyright © 2011 Office of Military Commissions.”

Not so fast. Within days of the new site’s launch, Yale Law School professor Eugene R. Fidell noticed the notice and contacted the Pentagon to break the bad news: as an arm of the U.S. government, it couldn’t copyright its own work. In making his argument, Professor Fidell appears to have focused not on any section of the modern copyright statutes, but instead on the Printing Act of 1895, the history of which was documented in 1961 by a U.S. Copyright Office study.

In the early 19th century, there was no clear answer to the question of whether copyright subsisted in works of U.S. government employees acting in their official capacity. Then, in Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), the Supreme Court held that, on grounds of public policy, there could be no copyright in a judicial opinion.

But the scope of the Supreme Court’s public policy exception was tested in 1895 by Tennessee Republican congressman James Daniel Richardson. Richardson was chair of the Joint Committee on printing, which had been preparing a compilation of the “Messages and Papers of the Presidents of the United States.” Richardson appeared to be intent on facilitating the private publication of the work and, in response, Richardson’s opponents included Section 52 in the Printing Act of 1895, which provided that “no Government publications shall be copyrighted.” President Grover Cleveland subsequently signed the Act into law.

This seemed to take care of the problem, and the first few volumes of the “Messages and Papers” were published without incident. However, unbeknownst to his opponents, Richardson had not given up. In 1897, a volume (and then subsequent volumes) of the series was published with a copyright notice claiming ownership not by the U.S. Government, but by congressman Richardson himself!

When the opposition protested, Richardson asserted that he was only claiming copyright as to his own editorial contribution to the work. Nevertheless, the Senate Committee on Printing reviewed the matter in 1900 and declared the copyright invalid based on its understanding of the congressional intent of Section 52 — not such an interpretive stretch considering that by most accounts Section 52 was passed specifically to curb congressman Richardson’s literary ambitions.

The principal behind Section 52 later migrated to the Copyright Act of 1909 and still survives today in the “Government works” section of the U.S. Code, 17 U.S.C. sec. 105, which provides that “Copyright protection under this title is not available for any work of the United States Government . . .”

But it is not clear that the Senate Committee on Printing had the last word. Congressman Richardson appears to have remained defiant, and in fact is still often listed the “author” of the Messages and Papers series, as a quick peek on will confirm. Meanwhile, in our modern example, the government gave in a bit more quickly: the Pentagon has already surrendered to Professor Fidell and removed the copyright notice from its website.

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