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").
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Filed Under: copyright, court transcripts
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Moral Of The Story
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This court ruling makes a sound
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
Or are you a court reporter?
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Argh...
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Re: Argh...
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Re: Argh...
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Good!
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Re: court reporters
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Missing a point ...
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Court Reporter Salaries and Fees
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
Good ruling.
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Re: Re: Court Reporter Salaries and Fees
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
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Re: Re: Re: Court Reporter Salaries and Fees #10
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
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
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Re: Re: Re: Court Reporter Salaries and Fees
So what the judge "should" have been ruling on is whether people are entitled to be paid for the hours spent for doing a job, which I thought was already established law.
Just plain silly.
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Re: Court Reporter Salaries and Fees
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Next.
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Re:
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Re: Re:
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:
You are barking up the wrong tree, bud.
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Re: Re: Court reporter salaries & fees
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Court reporters
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Re: Court reporters
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Court reporters
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Re: Court reporters
how does a person force the ct reporter to show the original tape?
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Court Reporters work product are public property
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
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
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;
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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Court Transcripts are not Work Product
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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Re: Court Transcripts are not Work Product
And I don't care what you say, I have heard many judges here in Virginia, and attorneys, too, agree that my work is my work product. Would you turn your work over for free?
I wouldn't. So, sue me.
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I agree with the Court's ruling...
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I need to point out that a court reporter should be paid?
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
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
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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Re: What about freelance reporters / Attornies making copies without paying
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As a lawyer, when he prepares a divorce decree, does he not charge a client for that? Why does the opposing party have to hire a lawyer, why can’t they just use you for everything, perhaps because there might be a conflict of interest? Perhaps the same could be said about photocopying of transcripts. With all the new technology out there today, who is to say that transcript has not been doctored? That’s where the certification on the part of the court reporter comes in. This person is a “Keeper of Record,” therefore; they are considered a neutral party with no interest, thus all parties can be assured of a true copy of the original. On the other hand, that is not to say the Court Clerk would do anything illegal.
And the question arises, is a lawyer’s work really his own??? Does he not cite cases and use precedent when working on a case. History repeats itself, as does a lawyer’s work. Lawyers search data bases to find cases that match their theories, and then try to apply them. Very similar to copying, I might add.
In our state the clerks charge a fee for photocopying, so, in fact, the county is prospering off a court reporter’s work. I’m sure nobody else would like someone else to prosper off of your work.
Let me pose another question, if all court cases are public knowledge, why do we have books or internet sites where one must pay to search case law???? Are they not public works?????
I’m not stating a transcript is a copyrighted material, however, I am stating much consideration must be given to copyright in general. It is a great foundation of our economic system and many jobs could be lost due to illegally copying something. Just think of the impact that would have on lawyers, people would have no money to pay your $200 an hour fee, which brings me to my next point. I bet that lawyer charged his time to the client while he stood there having someone else photocopy the transcript. I’m sure he did not do that for free.
So there is much more than just copyright this or copyright that, it is an economic situation too.
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court transcripts
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One thing that is confusing and frustrating to many is having to pay for a transcript of court procedings that are of public record. To clarify, a court reporter takes down each word that is uttered in the courtroom on their stenography machine in what's called "stenotype." That stenotype is much like converting what you hear to a foreign language. That stenotype file is considered the official record, and the paper tape you see coming from their machine (or an electronic file of the same) is filed with the court administrator. That is NOT the same as the transcript.
The stenotype file is NOT transcribed into an English transcript form, unless a party orders it; it is the process of converting the stenotype to English that you are paying for. That process takes a great deal of time, even if the court reporter has updated equipment and software. It is not done at the touch of a button.
In our state, court reporters are not permitted to produce transcripts during working hours. They must be produced on nights and weekends. Court reporters in our state are salaried employees; however, the state considers them to be "independent contractors" for transcript preparation purposes. That saves the state having to purchase the court reporters' expensive stenography equipment and software, as well as having to pay overtime and/or comp time for transcript production. Court reporters are obligated to purchase their own equipment, software and supplies. Court reporter steno machines cost nearly $5,500. The cost of software used to convert stenotype into English is $4,400 on the low end to $8,000 on the high end. In addition, software and writer support agreements are around $1,500 per year. Plus, of course, ancillary office equipment such as a laptop and/or desktop computer, printer, paper, ink, etc.
Regarding copyrights, I believe it has been established that the court reporter does not have a copyright to the transcript itself. Court reporters who use computer software to convert stenotype into English do so by using a computerized stenotyope dictionary - which they create - and is exclusive to each court reporter. Each court reporter modifies their computerized dictionary to obtain the best translation for their steno writing style. Thus, it is exclusive to them. I agree that the transcript itself is work product. The stenotype paper tape - or the electronic version of the paper tape - is not work product and is owned by the state for which the court reporter is employed. There is a substantial difference between the stenotype record and the transcript itself. They are two different things altogether.
It is true some states are getting rid of their court reporters and converting to digital audio courtrooms. Litigants are then able to order an audio recording of the proceeding directly from court administration - for a fee. However, if the purpose is to obtain a written transcript of that audio recording, the party is prohibited from creating the transcript themselves, and must have it produced from a list of "certified transcribers." The premise, of course, is to have a neutral paarty create the transcript and certify to its accuracy. Exactly the same as a copy versus a certified copy of any other document. Parties are able to choose from the list of the "certified transcribers" but their page and copy rates are set by the judicial council. The certified transcriber listens to the audio recording and produces a transcript, to the best of their ability. Several downsides are the transcript often contains many "inaudible" or "unintelligible" areas, due to a myriad of reasons: poor micing; people talking over one another; mics not turned on; mute buttons left on; etc... It can also take longer for the certified transcribers to produce a transcript from an audio recording than it does for a court reporter to produce a transcript from stenotype.
A live court reporter can and will stop the proceedings to have something repeated if any of the above situations occur, to ensure the proceedings are accurately memorialized. An audio courtroom is sometimes not monitored by anyone; or, in our state, a monitor is in charge of monitoring six courtrooms at a time. That substantiallly decreases the likelihood that everything is being captured by the recording.
After a party orders a transcript (the stenotype to be converted to an English format), yes, the reporter is paid a per page fee. It's also important to note that the reporter does NOT set the fees for that transcription. In our state, the judicial council sets the fees. And again, this transcription process cannot be done during working hours.
Oftentimes, It is burdensome and/or financially impossible for some parties to pay for a transcript. There are also situations where attorneys just do not understand the process of transcript production and do not see its value. For parties who are simply unable to afford a transcript, they are encouraged to apply for "in forma pauperis" status, which then enables them to receive a transcript paid for by the state.
Regarding "ownership" of the transcript, once an original transcript is produced, the original is filed with the court administrator. Parties can then obtain a copy from the court adminstrator's office - for a fee. Or, a party can obtain a copy through the court reporter (in our state the copy rate is 25 cents per page).
Hopefully this has shed some light in how transcripts are prepared and the underlying compensation for the same.
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Court reporter
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