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Court Says Court Reporters Do Not Retain Copyright On Transcripts They Prepare
from the nitty-gritty dept
In a world where almost every new expression is automatically covered by copyright once set in fixed form, you get some really odd situations -- highlighted by a recent ruling pointed out by Michael Scott. Apparently, in a lawsuit between bunch of plaintiffs and the city of Albuquerque, the city paid for a court reporter to record transcripts of some hearings. An attorney for the plaintiffs who wanted to use the transcripts did the smart thing and used New Mexico's Inspection of Public Records Act to gain access to the transcripts.
The problem? The city and the court reporter who recorded the transcripts would have charged a much higher fee for a copy of the transcripts, and felt that the lawyer's use of the law to gain access was somehow unfair. The court then ordered the lawyer to pay the court reporter over $4,000 to make up the "difference." The lawyer, however, appealed, and the appeals court has thrown out the lower court ruling, saying that forcing the lawyer to pay the higher fee would mean that the court reporter effectively was given a copyright to the transcripts:
In broad terms, [the court reporter's] fee claim rests on the tacit premise that court reporters in some legal sense own the content of the transcripts they prepare, such that they are entitled to remuneration whenever a copy of a transcript is made (even if they played no role in making the copy). To accept this premise would effectively give court reporters a "copyright" in a mere transcription of others' statements, contrary to black letter copyright law. See 2 William F. Patry, Patry on Copyright, Ch. 4 Noncopyrightable Material, § 4.88 (Updated Sept. 2008) (court reporters are not "authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings").
Reader Comments
(Flattened / Threaded)
Moral Of The Story
This is why we need to get rid of the lawyers.
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This court ruling makes a sound
Wooosh goes the the sound of regular citizens rights with this ruling.
Unfortunately, New Mexico is one of those "Special Places". I mean, Bill Richardson probably can fix it quite quickly.
It's a shame, an absolute shame, a travesty, a fucking Hiroshima Bomb that Bill wasn't Secretary of Commerce and instead that jackhole governor from Washington was...
instilled...
instead...
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Re: This court ruling makes a sound
wait, what? Reducing barriers to access of public information is treading on citizens' rights... how exactly? Sounds like a boon for citizens' rights.
Or are you a court reporter?
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Argh...
Considering this story is about court reporting where no creativity is supposed to take place I don't see how copyright enters the picture. If it did, it would mean if someone read you an address over the phone you would have copyright on it. I personally don't think transcribing conversation verbatim is copyrightable.
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Re: Argh...
It enters the picture because traditionally this has been the basis for court reporter's income. In most places the reporter is not a paid employee of the court, but a contractor and the court reporter's fees are calculated as part of the compensation.
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Re: Argh...
again, it's the court reporter's work product!!! it's not a conversation in a court hearing or trial. it's called testimony and evidence. there's a difference. get a clue!!! obviously you have never been deposed or in court before and given testimony. there's things called admonitions and you're told this is not like a normal conversation when you give testimony.
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Good!
Makes me wonder how the average Joe would access court transcripts. Soon you won't be able to get your driver's license without a lawyer and $$$.
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This is a great ruling. It affirms that court documents are public records and therefore equally accessible under the same terms and conditions as all other public records. More importantly, it reaffirms you can't copyright facts.
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Missing a point ...
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Court Reporter Salaries and Fees
Depending on the state and jurisdiction, court reporters are paid very little to do their job. Much of their income comes from selling the transcripts. Part of the reason for this is, they must pay for all of their own training and equipment, it is all very expensive.
Another reason, in areas where the jurisdiction doesn't hire full-time reporters, is that not all reporters have the same skill level. A transcript by a newly graduated reporter will not be as accurate, nor as valuable, as one created by a veteran of 30 years.
Other issues include timeliness, format and the way the trial was recorded. All of these factors go into the price of a transcript.
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Re: Court Reporter Salaries and Fees
Then pay 'em properly. There is zero excuse for giving a private party copyright in a public record which they had no creative input into; that is, in fact, illegal.
Good ruling.
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Re: Re: Court Reporter Salaries and Fees
Who said anything about copyright?
A movie theatre doesn't own the copyright to the movies, but I still have to pay them to watch the movie there. The theatre passes some of that money on to the copyright holder, but also keeps money for themselves for providing a service.
A car dealership doesn't own the copyright on any of it's cars, but I still have to pay them to take a car from them. The dealership passes some of that money on to the copyright holder, but also keeps money for themselves for providing a service.
A court reporter doesn't own the copyright on any of the transcripts, but I still have to pay them to get a transcript from them. The court gets some of that money to help pay for operational costs, but the court reporter keeps money for themselves for providing a service.
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Re: Re: Re: Court Reporter Salaries and Fees
No, the court gets fines and fees to pay operational costs. Court reporters fees do not go to the court.
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Re: Re: Re: Court Reporter Salaries and Fees #10
The OP was about a copy of a public record.
The vast majority of films screened in commercial theaters are not public records.
I have grave doubts about the possibility of a vehicle being classed as a public record. Your post is the first I've even heard about a vehicle on a dealer's lot being subject to "copyright." Perhaps you've opened a whole new class of tort claims!
Public records (transcripts of court hearings among them) are subject to federal, state and local openness statutes, none of which (to my knowledge) include a provision for an original transcriber's cut of the copy price. The original transcriber (most likely) had no role in the making of the copy; an office clerk either printed an electronic record, or photocopied an existing document.
The court gets tax money for operational costs (check your local/state budgets sometime). They don't need to fund the utilities from your copy request.
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Re: Re: Re: Court Reporter Salaries and Fees
It is a WORK FOR HIRE.
A car dealership sells a tangible, physical product. They do not get paid by the customer for the WORK they put into it. They get paid for the PRODUCT.
A court reporter is paid for the WORK they do. If someone wants to pay them for a COPY of a transcript that requires the court reporter to spend time COPYING IT THEMSELVES, then they are free to charge whatever fee they wish for the copying. Most folks would rather take it to Kinko's and pay a fair price instead of the dollar or more per page that these former monopolists charge.
It was a racket for a long time, as is much of the systemic abuse by authority in today's legal system. Like judges who require all parents who divorce to go to special "parenting" seminars contracted out to specific companies who make money hand over fist because it's REQUIRED BY THE JUDGE. Ridiculous.
No residual copyright can be held by someone who merely transcribes what other people said in a public hearing or trial.
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Re: Re: Re: Re: Court Reporter Salaries and Fees
it's the court reporter's work product. you know what? you go sit in court and take the record down then. as a court reporter, we don't just transcribe...we write in stenography first to get the transcript. there's a difference.
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Work for Hire.
Next.
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Re:
Nope, included in the package is the certification that the record is true and accurate as performed in person by the reporter. It's no more work for hire than an improv concert performance.
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Re: Re:
Obviously the court disagrees with you, Jason.
I need no certification from the reporter that the record is true and accurate if I get it from the courthouse under the public records laws.
What benefit at all do I get from the court reporter telling me it's accurate? What do I gain by having their "assertion"?
Barking up the wrong tree there, bud.
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Re: Re: Re:
Obviously you don't know what real value a court reporter's transcript holds. Without a signed and certified transcript from the court reporter, your pieces of paper aren't worth the ink they are printed on, and cannot be used in any court proceeding.
You are barking up the wrong tree, bud.
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Court reporters
Does anyone have a citation to the actual decision? That is, the name of the court, date, etc.?
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Re: Court reporters
United Transp. Union Local 1745 v. City Of Albuquerque, 2009 WL 2573815 (10th Cir. 2009)
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This will ultimately just increase the fees for a one-time transcript so that the costs are not shared among the parties. It's not copyright, but it is the court reporter's work product.
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Court reporters
Obviously only about 2 of you know what a court reporter is and what they do...i'm just reading these comments and shaking my head because I am a court reporter. If you're going to order a copy of my work product (transcript) then you're going to pay for it. That's what all us court reporters fight for every day is people like you (read: attorneys) who want everything for free. We bind the transcripts, which is our work product, so they can't be copied. We used special non-copy paper so our work product can't be copied. If you want a copy of the transcript, then obvioulsy it's of value to you. So there's a price for that value. That's how we make our living. We have to be certified in most states to even be a court reporter and take the record down. When you get that transcript, you are going to get a Reporter's Certificate stating that it is true and accurate. If you don't care how the record is made, then don't hire a court reporter. Get someone to monitor a digital recording and find someone to transcribe it for you. I'll tell you that it's going to cost you way more for that than to have a court reporter produce a transcript. See how accurate the digital recording transcript is. That's what most courts are doing now because of budget problems...get rid of the court reporter and put in some equipment and forget to turn it on. Then you will see how valuable the court reporter's transcript would be....
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Court Reporters work product are public property
LETS ADDRESS SOME THINGS here is a objective manner:
One, a court reporter is paid by the court to take down the record. This is the same as a newspaper reporter, thus as long as you give proper credit to the reporter and do not attempt to pass it as your own, you are free to disseminate the information under 1st amendment protection.
Two, as stated, the court reporters take only notes of court proceedings, and thus do not create the original product. They are NOT authors, the attornies and the court judges are.
Three, I argued a case in court myself, and I was not notified that I would have to acquire my own court reporter in order to own what is essentially my words and thoughts. It has been the history of this nation that as long as a court record is not sealed or a gag order is in place that anything that occurs in court is public knowledge and property, period.
Fourth, the real stupidity should not neccessarily be place on the reporters, the real stupidity was the idea of using independent contractors to prepare court transcripts in the first place. And having idiotic legislatures making up the totally incorrect assumptions that they can convey copyright protections on public records. This area is in the jurisdiction of the court, or judiciary.
The legislatures are overstepping their authority regarding the independece of the 3 forces of government that have the power over their area of responsibiltiy. The Executive enforces laws and policy as well as represents the state or U.S.. THe legislative writes laws and policies that are to be enforced they determine by the executive. The judiciary is there to interpret laws or examine constitutionality by the legislative or enforcement by executive branches. No one of the three can impair the any of the other three of their independent ability to perform their responsibility.
Since the judiciary requires that all actions unless sealed or put in a gag order must be availible to the public, the legislative acts are unconstitutionally preventing the judiciary from performing what is the most important task they must perform. This is because in order for those to recieve due process of law, they must be able to access any records relating to their issues in court so as to ensure that the parties are treated equally under the law, which is the Vth and XIVth amendment of the U.S. Constitution.
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Re: Court Reporters work product are public property
"Three, I argued a case in court myself, and I was not notified that I would have to acquire my own court reporter in order to own what is essentially my words and thoughts."
And whose fault is that? Are you an attorney? If you are, you should know that the Court's court reporter doesn't work for you. Don't they teach that in law school? We are paid by the Court to record happenings and your "words and thoughts". If you want a transcript of it, then you're going to have to pay for it whether you want to do it yourself or use the Court's services. The Court doesn't pay me to go home on a Friday night, work all weekend until 3:00am on Monday so you can have your words on paper! ha! Court reporters are usually restricted from working on transcripts during regular work hours. Anyone may listen to court hearings for free or purchase audio from the court reporter for a nominal fee. You want to find someone to prepare a transcript for you for free, good luck! I guess you can always do it yourself. Maybe then you'll appreciate the actual work involved.
"Fourth, the real stupidity should not neccessarily be place on the reporters, the real stupidity was the idea of using independent contractors to prepare court transcripts in the first place."
So you think they should hire some transcriptionists that will work for $8.00/an hour, and have no formal training, and trust them to handle highly confidential court documents. And the Court should pay them to transcribe FOR YOU!? Doesn't make a whole lot of sense. If you want a transcript, as I said earlier, either do it yourself, or find some sucker to do it for free. Be my guest. Court reporters very rarely are required to prepare a transcript for the court. The audio and notes are simply kept by the court reporter in storage until a transcript is requested. An attorney may request to listen to a hearing just the same as the Court, and not be charged a cent. I don't think you have a realistic grasp on what it takes to prepare an accurate and reliable legal transcript.
That being said, I do actually agree with the Court's ruling that the transcript be produced to the opposing counsel with no fee to be paid to the court reporter. Court reporters should not have copyrights on transcripts. That's silly. Once someone has paid me to prepare a transcript, I have no concern about where it goes from there or how many times it may be copied. Really don't.
The whole theory that you seem to have that court reporters should work for free... that I have a problem with.
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NOLO Press Limitations on Copyright on Court Transcripts
I am explaining the rationale for why a court transcript cannot be owned by the court reporter:
First, Copyrights cannot protect facts, and a court transcript is a record of fact. The author or reporter cannot create facts, they may discover previously unknown facts. However in this case the court reporter does not express any original expressions, it is a verbatim copy of oral argument in my specific case. Thus a court reporter cannot own a court transcript. I quote from NOLO Press: The Copyright Handbook Page 144:
Facts and Copyright
Copyright does not protect facts whether scientific, historical, biographical, or news of the day. If the first person to write about a fact had a monopoly over it, the spread of knowledge would be greatly impeded. Another reason why copyright law does not protect facts is that an author does not independently create facts; at most, she may discover a previously unknown fact. Census takers, for example, do not create the population figures that emerge from a census; in a sense, they copy these figures from the world around them. The Copyright Act does not protect discoveries. (17 USC § 102(b).)
So, the facts contained in works such as news stories, histories, biographies, and scientific treatises are not protectable. Subject to the important limitation of the merger doctrine discussed below, all that is protected is the author's original expression of the facts contained in such works.
Second, the court reporter cannot claim ownership of quotations of others if the reporter's work is accurate because it is a verbatim copy of another person's statements. In fact the copyright is owned in this case by the speaker being quoted, so that again in the case of a court proceeding, the attorneys, the witnesses, the clerk, the judges are the owners of the transcripts and not the court reporter. Thus the court reporter is disallowed to own the content of a court transcript. I quote from NOLO Press: The Copyright Handbook page 149:
Quotations
The author of a news story, biography, history, oral history, or similar work may not claim copyright ownership of statements made by others and quoted verbatim in the work. Reason: A verbatim quotation of what someone else says is not original.
However, this doesn't mean the quotations are always in the public domain. If the quote is written down or otherwise recorded with the speaker's authorization, it is protected by federal copyright law. The copyright is owned by the speaker. Typically, the person who writes down or records the speaker's words will have the speaker's permission to use the quotes. Such permission may be expressed or implied by the fact that the speaker consented to an interview.
In addition, a conversation reconstructed by an author from memory, rather than quoted verbatim from written notes or a recording, may be protectable by the author (not the person who made the original remarks) if some originality was involved in reconstructing the conversation. (Harris v. Miller, 50 U.S.P.Q. 306 (S.D. N.Y. 1941).) Moreover, the selection and arrangement of all the quotations in a book of quotations may be a protectable compilation, although the individual quotations are not protected. (Quinto v. Legal Times of Washington, 506 F.Supp. 554 (D. D.C. 1981).) One or more of the individual quotations in such a book could be copied without the compiler's permission, but verbatim copying of the entire book would infringe on the compiler's copyright.
But there are many instances where quotations are in the public domain. For example:
A quotation by a federal government employee spoken as part of his duties is in the public domain. This includes official speeches by the president and Congresspeople.
This example is compatible to a court clerk, an attorney, a witness, and a judge in a court proceeding. The transcripts by necessity must be verbatim to be in compliance with the court reporters responsibility. The court reporter is not an interviewer so the exception regarding the speaker consented to be interviewed is not applicable.
Third, Copyright protections cannot be employed on government works. One cannot argue against the fact that a court proceeding is a government work product. Since the court transcript cannot be similar to a tax pamphlet or a report published by a city or county because it lacks the writer’s original work, the records that are taken regarding any court proceeding is a government work. Thus the court reporter cannot own the court transcript. This is discussed in the NOLO Press: The Copyright Handbook pages 151-2:
Government Works
Government edicts such as judicial opinions, legislation, public ordinances, administrative rulings, and similar official legal documents are all in the public domain. This rule applies to all levels of government local, state, and federal and even includes foreign government edicts.
Other types of works created by U.S. government officers and employees as part of their jobs are also in the public domain. This includes, for example, everything published by the U.S. Printing Office, IRS, Copyright Office, and Patent and Trademark Office, and all the president's official speeches. But this rule does not apply to works by state and local government employees; those works may be protected by copyright. For example, a state tax pamphlet or booklet on air pollution or water conservation published by a city or county may be protected.
Fourth, raw facts in fact compilations cannot be protected by a copyright. A record of a court proceeding is raw fact; it is not interpreted, or rearranged by a court reporter. It is not analyzed, sorted, or synthesized in any way. Thus the court reporter cannot own any documents that consist of raw facts. As defined by the NOLO Press: The Copyright Handbook pages 182-3:
Raw facts in fact compilations not protected by copyright
Since the copyright in a fact compilation extends only to the compiler's selection and arrangement of the facts, the raw facts or data themselves are not protected by copyright. The Supreme Court has stated ' that the raw facts may be copied at will and that a compiler is even free to use the facts contained in another's compilation to aid in preparing a competing compilation ) (Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991)); but, as discussed above, the competing work may not feature the same selection and arrangement as the earlier compilation.
It may seem unfair that the facts contained in a compilation gathered at great trouble and expense may be used by others without compensating the original compiler. However, recall that the purpose of copyright is to advance the progress of knowledge, not to reward authors. If the first person to compile a group of raw facts had a monopoly over them, such progress would be greatly impeded.
Finally, a copyright cannot be issued if the work performed does not meet the minimal creativity requirement. Since the court reporter is limited to only preparing documents requiring verbatim quotations, there is NO creativity in this document asserted by the reporter. Thus the minimal creativity requirement is not met and the reporter’s works are not able to be owned by the court reporter. The minimal creativity requirement is discussed in the NOLO Press: The Copyright Handbook page 183:
The minimal creativity requirement
A work must be the product of a minimal amount of creativity to be protected by copyright. This requirement applies to fact compilations as well as all other works. The data contained in a factual compilation need not be presented in an innovative or surprising way, but the selection or arrangement cannot be so mechanical or routine as to require no creativity whatsoever. If no creativity was employed in selecting or arranging the data, the compilation will not receive copyright protection.
In a landmark decision on fact compilations, the Supreme Court held that the selection and arrangement of white pages in a typical telephone directory fails to satisfy the creativity requirement and is therefore not protected by copyright. (Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991).) There are doubtless many other types of compilations that are unprotectable for the same reason.
Thus the Court Reporter cannot own a court transcript by as defined in the federal copyright laws and regulations.
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in response to KL Re: Re: Re;
Hello KL,
Please provide either federal statute or case law that supports your arguement or provides a court reporter copyright protection? Otherwise you can live on that river from egypt.
By the way, when I purchased my transcript it was sent through e-mail which means that your argument that a signed transcript cannot apply. You cannot e-mail a signatured and certified transcript.
Finally, just think of common sense, a document paid by the courts to be produced must remain the property of the court. The court paid the court reporter to perform their work, thus the court retains ownership and it cannot be transferred to a private citizen.
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Documents can be digitally signed, I believe. I also don't believe it's a copyright issue. I think it's a work product issue and fair pay for the work involved. Ultimately, it will just increase the cost of a one-time preparation of the record.
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Court Transcripts are not Work Product
Hello all,
Just giving some info to compare court transcripts and work product.
Work product is defined as:
work product n. the writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial. A "work product" may not be demanded or subpenaed by the opposing party, as are documents, letters by and from third parties and other evidence, since the work product reflects the confidential strategy, tactics and theories to be employed by the attorney.
All right is a court transcript a work product?
Is a court transcript a document that is writings, notes, memoranda, writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial.?
No it is not, it does not consist of writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial, IT IS THE TRIAL.
A court transcript can be demanded or subpenaed by the opposing party, as are documents, letters by and from third parties and other evidence, since the court transcript reflects the public actions in an open court.
Just my 2 cents worth
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I agree with the Court's ruling...
I'm a court reporter in Indianapolis, IN. In terms of transcripts not being copyrighted, that is true. I work in a major felony court and am aware of the Freedom of Information Act. Anyone is allowed to purchase a copy of audio from the court reporter for a small fee, usually $25.00. The fee is for the court reporter's time and the cd itself. Because contrary to belief, we are not employees of the Court, but have written contracts for our services to the court. The fee for the preparation of a transcript is much greater, but it is not based on the content, rather the labor and time involved. Much time is spent on preparing legal transcripts, and many court reporters work late into the night and weekends to make deadlines. Who wants to work without being paid? Not me. Of course, once someone has paid for the preparation of the transcript, we charge $1.00 a page for a copy. Again, this is not for the content, but merely for the time, materials, and labor. Transcripts that are located at the Court of Appeals may be checked out for no fee once prepared. I guess if someone wanted to bring in their own stenographer to the courtroom to take down the testimony, they could, but good luck finding a court reporter that will do it for free. There is always the option of purchasing the audio and transcribing it yourself, or even bringing in your own tape recorder. I think that court reporters as a whole realize the content of the transcripts are not their own, but the work involved in preparing the transcript is inevitable. That said, I agree with the Court's ruling giving the opposing counsel permission to view the transcript or make a copy. Once someone has paid for the preparation, I don't care if they copy it 100 times over. It's no sweat off my back.
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I need to point out that a court reporter should be paid?
Just making sure you realize that I am not against a court reporter being paid to do their work. They should be paid by the courts the neccessary amount proportional to their skills and abilities they must possess to do their work.
The state governments are STUPID for trying to put the blame for their mismanagement on people who ARE OVERWORKED.
The state governments are STUPID to try to attempt the totally absurd approaches to cut costs for this job function.
The state governments have proven their STUPIDITY regarding the way that they have written legislation that makes NO SENSE WHATSOEVER regarding the cost management of court transcripts.
The state governments SHOULD PROPERLY COMPENSATE AND OWN THE EQUIPMENT NECCESSARY TO PROPERLY RECORD COURT ACTIONS AND ACTIVITES.
Please bear that in mind, I never had a problem with court reporters except when one tried to tell me her transcripts of an open court proceeding was her property. I am sure the majority of court reporters have much more common sense than this individual.
thanks for listening
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I want to know what a cort reporter might type
I was told that a cort reporter types every word that is said during their work, well I was also told that court repoter also has words that they shorten like how could be hw or something. I'm not sure, I just know I kind of want to be one once I get out of high school.. I'm just 15 by the way so don't get mad for me asking a question...
And, I don't think it's exactly the court reporters right to say that they own what they write, becasue the person thats asking probably wants it becuase they are in that report or whatever its called or they would have no reason to look at it, but I don't think a court reporter should have the right to say no you can't see it, it is my work, Yeah its your work but they are in 'your work' so they should have the right to see it and get a copy of it... unless I'm compleatly stupid and have no clue about what I'm talking about.. becuase to be honest I don't. =/
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What about freelance reporters / Attornies making copies without paying
What about deposition / freelance work? At the end of a very long video deposition of an expert witness, one attorney said he will order the original and photocopy it for opposing counsel.
I informed them that is not only unethical, but I believe it is illegal.
Come on! This is how we make a living.
So I'm busting ass on hundreds of pages of a video depo, knowing I'm getting paid for an O & 1. This should have been an Original and THREE copies!
Anybody know what I can do because my agency will not do anything about it because they already "quoted" the page rate.
One attorney lives in Texas and two live in Arkansas. He said that's what they do in Arkansas...
The depo was not conducted in Arkansas.
Anyway, somebody please reply before I pull my hair out.
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