Copyright is an integral part of the legal system that regulates relations in the field of creativity and intellectual property. It is based on protecting the rights of creators to their works by granting them exclusive rights to use and dispose of their creative works. However, can contracts that are included in legal relations between the parties also be protected by copyright? Yes, any contract that is drafted in a unique way instead of using standard ordinary language may automatically be covered by copyright protection.
You can copyright certain elements of the contract, such as the way clauses or key phrases are used. There are essentially two problematic aspects related to copyrighting a general contract as such:
- Idea versus expression: You can only copyright the way an idea is expressed, not the idea itself. For example, while you may be able to copyright certain uses and arrangements of words in a release clause, you cannot prevent others from using the release clause.
- Original expression: You can only claim copyright for original expression. Since you have to use certain words in a contract to get the desired legal effect, it can be extremely difficult for you to prove that a clause you have drafted is an original expression. However, if you are creative enough, you may be allowed to claim copyright within your creativity.
According to the book Nimmer on Copyright, there seems to be no good reason to exclude contracts and other legal documents from copyright protection. However, this does not mean that all contracts are protected by copyright. If your contract is similar to another person’s contract and only specific details, such as dates and names of the parties, are different, then your copyright claim will likely be rejected because the contract is not sufficiently original.
Instead of directly copying from an original template, you should try to customize and modify an existing contract into a new one with minor changes to the standard provisions. Such an agreement can be considered a compilation, and the courts may grant it copyright protection. And a contract drawn up from scratch has a better chance of obtaining copyright protection than a contract based on a previous template.
If you are the author of the contract and are not obliged to keep it confidential, you can use it for yourself and distribute it. If the contract is written by someone else and you sign it, you can use it for your own purposes without claiming any copyright. If you claim someone else’s contract as your own, you are violating the author’s copyright. However, you cannot be subject to any legal action unless the original author recognizes the contract as their own copyrighted work and decides to sue you.
Usually, all expressions are automatically covered by copyright protection. Since there is no standard rule about what can and cannot be considered an expression, a legal document can easily pass this test to be covered by copyright law.
Using someone else’s contract: is it legal?
Small entrepreneurs and businesses often find it easier to use an existing contract that belongs to someone else than to hire a lawyer to draft a contract for them. However, original contracts can be copyrighted in the same way as books, music, and works of art. So, if you copy someone’s contract without his or her permission, you may be in violation of copyright law. However, you can take an existing contract as a basis and customize it with your creativity. This can help you avoid possible copyright infringement.
Of course, you can draft your contract from scratch. Contracts drafted by attorneys and legal professionals tend to provide better protection under the law due to their precise wording. The online contract templates you choose may not meet all your requirements and may not comply with the law.
In one of his articles, Judge Stanley F. Burch, Jr. recounted a conversation he had with an attorney at a leading firm known for preparing real estate documents. The lawyer complained that his firm’s document had been copied in its entirety by another law firm, and Judge Burch advised him to sue the offending firm. Ultimately, the offending firm had to compensate the lawyer’s firm for the use of its contract.
In another case, the AFLAC insurance company developed supplemental policies in a narrative style to make them easier for its customers. Another insurance company copied them verbatim. AFLAC sued the company that copied the riders for copyright infringement, and the court granted a preliminary injunction against the defendant.
Thus, contracts, agreements and other documents that contain creative elements may be subject to copyright protection. This may include a unique style of writing, original design, illustrations or graphics, as well as other creative elements created by the authors of contracts. Such elements become objects of copyright that are protected by law.
However, it is important to distinguish between the contract itself and the creative elements it contains. The mere fact that a contract is a legal document does not give it copyright protection. However, the specific creative contributions it contains may be protected if they meet the criteria established for copyright protection.
Thus, under the laws of many countries, contracts may include copyrighted elements that deserve protection. This makes it important to consider copyright aspects when creating, concluding and using contracts. This ensures the protection of the rights of creators and contributes to the creation of fair and effective contractual relations between the parties.
Taking copyright into account when creating and using contracts is key to ensuring the protection of creators’ rights and effective contracting.
If you have any questions about copyright protection or need legal advice on contracts and intellectual property, please contact our law firm specializing in copyright. Our qualified specialists are ready to provide you with the necessary assistance and advice on all copyright-related issues.
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