Copyright Originality and Judicial Originality

Whereas eligibility for copyright protection requires originality, that criterion is not normally applied to judicial opinions. Like other forms of legal prose, judgments are collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche. Yet the definition of originality in copyright law has important commonalities with the generic expectations associated with judicial decisions. One way in which judges show that they have considered all sides of a dispute is to explain the outcome by means of an independently produced rationale. Precisely because judicial prose typically includes a significant amount of copying, however, it is doubtful that any requirement concerning original prose is desirable or could be consistently applied. To explore that issue, this article considers the least demanding standard that might plausibly satisfy the parties – namely, a standard demanding that judges display their own skill and judgment in every part of the judgment that may determine the outcome. This requirement, it turns out, would be difficult to apply and would promote meritless appeals. The analysis shows why judicial copying is different from plagiarism, and this distinction sheds light on recent disputes over various forms of copying in trial judgments, involving copying from the pleadings (with or without attribution) and unattributed copying from law journal articles or from other judgments by the same judge or by others.