10th Cir.: Court reporters do not own a copyright in the transcripts that they prepare

Filed under Noncopyrightable Material

United Transp. Union Local 1745 v. City Of Albuquerque, 2009 WL 2573815 (10th Cir. 2009)

There was an interesting little unpublished decision issued by the Tenth Circuit (McConnell, Tymkovich, O’Brien writing) this past Friday. An attorney represented a group of plaintiffs in a suit against the City of Albuquerque. The district court appointed a Special Master to conduct hearings, for which the City of Albuquerque ordered and paid for transcripts. The attorney for the plaintiff used the Inspection of Public Records Act, N.M. Stat. § 14-2-1 to 14-2-12, to obtain copies of the transcripts directly from the City, instead of paying the court reporter a higher fee.

The City and the court reporter complained to the district court and, after the case settled, the district court ordered the plaintiff’s counsel to pay the reporter a little over four thousand dollars. The attorney for the plaintiffs appealed in his individual capacity. The 10th Circuit overturned finding that to require the counsel to pay the fee would effectively give the court reporter a copyright in his transcripts:

We have found no authority to justify requiring plaintiffs, and derivatively their attorney . . . to pay a fee to a court reporter for a transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means. On the contrary, both broad principle and particular holdings undermine the notion that court reporters may demand a “missed fee” whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made—and was paid for making—for someone else.

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”).

And there is a line of cases holding that transcripts independently accessed (such as by simply requesting the case file from the court clerk) may be viewed and copied as an alternative to purchasing a copy from the court reporter. See Kinan v. City of Boston, 112 F.R.D. 206, 208 (D. Mass. 1986); Hawley v. Hall, 131 F.R.D. 578, 583 (D. Nev. 1990); C.P.C. P’ship Bardot Plastics, Inc. v. P.T.R., Inc., 96 F.R.D. 184, 185 (E.D. Pa. 1982); see also Stanley v. Henderson, 590 F.2d 752, 753 (8th Cir. 1979) (noting counsel may obtain copies of appeal transcript from clerk); Schroer v. United States, 250 F.R.D. 531, 535-37 (D. Colo. 2008) (rejecting, under post-2000 Rules (see supra note 1), party’s effort to require immediate filing of transcript with clerk to enable informal copying, not because copying is improper but because party failed to justify burdening the court with filing of as-yet-unused transcripts).

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11 Comments

  1. Posted 14 September 2009 at 3:35 am | Permalink

    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.

  2. Stella
    Posted 11 February 2010 at 1:38 am | Permalink

    It will be an interesting judicial system when no transcripts exist because reporters cannot afford to work without being paid for copies or transcripts are unreadable as the result of being produced from audio sent to foreign transcriptionists.

  3. Posted 10 March 2010 at 3:29 pm | Permalink

    I sacrificed so much of my life going to court reporting school in Texas while working another job at the same time. I never knew the toll it would eventually take on my body. I know for a fact this job will shorten my life because of the stress it causes, mentally and physically. The problem is that we make it look so easy. Let me assure you that it’s not. If anyone knew how hard this job is, you would never even think of taking our work product without paying.

    People don’t realize how much we spend for many, many computers, many versions of our specialized software and also the writers. Court reporting software companies force us to pay for their software over and over and over again. One particular software company charges $3,500 for the software which is obsolete after a couple of years and another $5,000 for the writer which is outdated just about every year or breaks down and it’s time to purchase another one. They have software people who are constantly making changes to the software just to make money off of court reporters. So every time you complain about paying for a transcript, think about that. We deserve every penny that a transcript brings in, because we just turn around and give it back to the technology market and to IRS. I work so, so hard and I have missed out on a lot of my life and I feel that the money I have left over, which really isn’t much after everyone else is paid, could never be enough to compensate me for the sacrifices I’ve made. If I had it to do over again, I wouldn’t do it.

  4. Posted 30 April 2010 at 7:20 am | Permalink

    In the public works and after new regulation “electronic serials” are subject to a qualified deposit requirement. Not all rights holders will be requested to deposit their works.

  5. Loia pARDEE
    Posted 6 May 2010 at 2:22 pm | Permalink

    The transcript of the reporter is the official record. A copy that is not certified by the reporter cannot be used in legal proceedings. In California there is a Government Code section that prohibits copying of transcripts for distribution to others. With the electronics capabilities today, a transcript could be easily altered. A copy not certified by the reporter is not reliable.

  6. scott
    Posted 6 October 2010 at 12:40 pm | Permalink

    You’ll just see us raise the rates on the Original transcripts to circumvent this problem that lawyers and citizens seem to want to attribute to us being exhorbitant in our rates…we provide a special, unique, accurate service that allows for the legal process to run its course in appellate purposes.

    You start making copies in courthouses, then you run the risk of not trusting the source without the notarial signature, nor the “certified copy” stamp…you run the risk of opening up a big can of worms in the future. And let Electronic Recording take over and then you have Tom, Dick, and Harry typing up transcripts and no two match. Oh, yeah, and then there’s motive. You can easily switch words or delete words if it can help you win your case in an argument before a judge, and then a judge would ultimately have to decide which transcript is credible and will be made the “OFFICIAL RECORD” , the plaintiff’s transcript that was typed up by their sister, mother, brother, aunt, paralegal, clerk, or the defense side, which could’ve been their aunt, uncle, sister, mother, brother, or clerk…then when that’s decided by a judge, that loser will never let their aunt, uncle, sister, brother, cousin ever type up a transcript ever again for various reasons; incompetent, illiterate, bias, motive…you name it..

    Just my two cents from a passionate reporter who takes his job seriously.

  7. Noble El Shabazz
    Posted 7 May 2011 at 12:41 pm | Permalink

    Unfortunately it is very obvious that all the comments posted by those who work as court reporters are very “biased” and not “objective” at all. While, as a human being, I can empathize with any one who has made sacrifices in their personal life to pursue a career they “believed” would provide them with financial security, I cannot find any “logic” or “morality” in court reporters complaining & blaming the citizens/people for simply exercising their rights under the law(inspection of public records act), simply because the reporters can’t make a “profit” off of the people anymore. Most people who come to court,especially Municipal courts, are forced to appear under threat of arrest and are fighting for their life, liberty, & the pursuit of happiness, which they have also made great “sacrifices” for(Do the court reporters empathize with these folks life sacrifices?). Most of these people are also poor and cannot afford to pay hundreds of dollars for something as simple as a “written record” of what was stated in court, which means under the normal capitalistic blood-sucking procedures, poor people are “systematically” deprived of their right to appeal corrupt/unjust judgments based on their lack of money. This is the real travesty of Justice that all people of “Moral Conscience” should be much more concerned with. This corrupt system is deliberately designed to function in a way that systemically makes it so difficult for the common people/poor people to pursue justice, due to exorbitant rates/fees/fines, that common folks can’t “afford” to “pay” larger amounts of money simply to exercise their rights, which forces them to waive their rights & reluctantly pay lesser amounts in unjust fines/fees/court cost, thereby allowing corrupt courts/officials to exploit them, victimize/abuse them, and “Profit” off of their dilemmas. The common people are the “Victims” of the system NOT the problem, and these post are just another example of mentally “programmed” people who work for the system having the audacity to continue blaming the victim/abused instead of blaming the Victimizers/Abusers!! If Greedy capitalistic-blood sucking court reporting software Companies Overcharge court reporters for software that will be obsolete after a couple of years, and Overcharge thousands for the writer which is outdated just about every year or constantly breaks down so you are forced to pay thousands for a new one, and “you know” they have soft ware people who constantly are deliberately making changes to the software JUST TO MAKE MORE MONEY OFF Court Reporters, it should be obvious to you all that The Greedy Companies are the ones Exploiting you and they are your Real Enemies, NOT The Poor People!! So all of your Complaints should only be directed at the Rich Companies who rob/exploit you, not at poor people or common citizens who have figured out a way to finally stop this corrupt system from “robbing” them of some of their hard earned money!! Court reporters do not deserve every penny that a transcript brings in just because they turn around & give it right back to the technology market and the IRS. Only You are responsible for the foolish choices you make, and the rest of the common citizens shouldn’t have to suffer exploitation due to your poor decision to lay down, roll over on your back, & accept being exploited by the rich companies!! A much “Wiser” choice would be to identify your real enemies and fight back against these crooked companies and corrupt IRS by suing them or having the determination to simply “BOYCOTT” them until they lower their prices to a much more fair & affordable price.But just because you choose to “allow” yourself to be abused,or robbed/exploited by the money hungry companies does not justify you wanting to rob/exploit the common folks in order to compensate, because two wrongs do not make a right!! I understand that court reporters want to make a living, but so do all the blue collar workers who are forced to come into the courts and are then expected to pay large amounts of money for the written records, that the courts require, to defend themselves. Court reporters do provide a service, yes, indeed, but so does a waiter/waitress, school teacher, guidance counselor, clerk or secretary, and they don’t charge exorbitant prices to provide documents or services. Unfortunately, many people, in the legal field, have developed this “superiority” complex and “over exaggerated” sense of “self importance” causing them to falsely believe they are “entitled” to more money, benefits, privileges, & respect than the rest of us common folks!! When in fact the only service you have really provided is you have created a written record of the statements that people said in a court proceeding by typing it on paper. It is good honest work, but , in the big scheme of things in life, it aint that deep, and you don’t deserve so much money. Just as the Companies who overcharge you don’t deserve all the money they charge. But, Corporatist/Capitalist are like blood-sucking “Vampires”(the living Dead), when one gets bit, instead of fighting against the evil vampire who first bit you, you turn into an evil vampire yourself and start biting other innocent people!!!

  8. Posted 20 October 2011 at 5:20 am | Permalink

    Actually value you talking about that educational report. Good!!

  9. Posted 28 October 2011 at 11:03 am | Permalink

    While there may be some court reporters who believe they have “ownership” of the transcript, we all do not feel that way. I have always argued against that concept. We should be paid fairly for the first time we prepare a transcript. In the case of the official reporter, once they have been paid and it is filed with the clerk, it is a public record. In the case of freelance reporters and depositions, once paid for their initial work, the transcripts belong to the parties and their attorneys. Updating software and computers and tools to accomplish our work is a cost of doing business, just as any other business, and we should take those costs into account when setting our prices.

  10. PatrickMulrooney,esq
    Posted 16 June 2012 at 7:17 pm | Permalink

    I haven’t looked at the law too carefully abou the article because it’s Saturday night, and I’m only generally aware of SLAPP legislation…
    But would it have been possible for the lawyer or his clients to have taken a Strategic lawsuit against public participation (SLAPP) against the court reporters?
    Who was the court reporter who was not mentioned in the article (I don’t have access to by database at the moment)

    Thomson/Reuters/Westlaw screwed me over

  11. PatrickMulrooney,esq
    Posted 16 June 2012 at 7:22 pm | Permalink

    lol,
    By getting screwed over, I meant that Thomson/Reuters/Westlaw withdrew my bar review service against the terms of our agreement because they bought and killed off micromash, and assimilated the materials into the much more expensive Bar/Bri, for anticompetitive reasons. It was not worth my while to sue them, because I passed anyway, but they cost me a LOT of stress, which is unrecoverable.

    If the court reporter was Westlaw, I hope they rot.

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  1. [...] 10th Cir.: Court reporters do not own a copyright in the transcripts that they prepare The City and the court reporter complained to the district court and, after the case settled, the district court ordered the plaintiff’s counsel to pay the reporter a little over four thousand dollars. The attorney for the plaintiffs appealed in his individual capacity. [...]

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