How is Wisconsin able to copyright its criminal jury instructions?

I’m familiar with Wisconsin Criminal Jury Instructions (JIs) partly because I’ve advocated for reforming one of them: JI 140 on the burden of proof.  I’m also familiar with the JIs because I’m a criminal defense lawyer and I’m required to use them in every single jury trial.  Trial court judges adopt them verbatim nearly 100 percent of the time.  And except for a single jury instruction (JI 140) out of hundreds of instructions, I’ve only rarely seen a trial court judge modify them.

But I’m also familiar with the JIs because I have to pay for them every year.  And thanks to some clever marketing by the seller, most lawyers have to buy both the digital version for use in court and the print version for research purposes.  Why?  Because the seller includes valuable notes and commentary in the print version but not in the digital version.  Conversely, the digital version is needed so the instructions can be tailored for in-court use.  The cost is $235 for the print version and $210 for the digital version.  Once you buy them, however, the expenses are just beginning.  There are recurring annual update costs for each, which can run one or two hundred dollars per year.  (This is, admittedly, less than the initial outlay of $445.)

I’ve always wondered why we have to pay for JIs when they are written by a committee of sitting trial court judges.  We’re already paying the judges’ salaries with our tax dollars, so why do we have to pay for their labor on jury instructions as well?  I’ve asked this question several times of several people over several years, and no one seems to know the answer.  Well, it turns out the answer may have been settled back in 1834 and affirmed again in 1888.  And it’s bad news for those who claim copyright in the JIs and sell them to us for a profit.

Some background is necessary.  The Wisconsin Court System created the Judicial Conference (the “Conference”).  This Conference appoints eleven sitting Wisconsin trial court judges to the Criminal Jury Instruction Committee (the “Committee”).  The Committee then “prepares model criminal jury instructions for circuit (trial) court judges.”  The Committee also has two “reporters”—one is former law professor, now retired, from the University of Wisconsin (UW) and the other is currently a bureaucrat of some sort at UW.

But even though the eleven judges prepare the JIs, somehow the judges or the Committee or the Conference gives the copyright in the JIs to the UW Regents.  (You can see this on the bottom of any JI, such as this copy of JI 140.)  This, in turn, is what allows UW to demand a lawyer to pay $445 plus annual supplement fees in order to get the mandatory JIs, even though they were drafted by sitting trial court judges—the public servants who are already being paid by our tax dollars to carry out the business of the Wisconsin Court System and the Conference and the Committee.

Are you still with me?  The question, then, is how is this legal?  Well, it may not be.  The Supreme Court of the United States (SCOTUS) just issued an opinion called Georgia v. Public.Resources.Org on a related issue where the legislature (rather than the courts) tried to copyright and sell legal material.  SCOTUS said “no dice,” and in the process reiterated the well-settled copyright law governing judicially-crated material that was set forth back in 1834 and 1888.  Here’s the scoop.

The “government edicts doctrine” states that court decisions and even “non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law.” (P. 4.)

As discussed above, JIs are very authoritative and essentially mandatory—to be sure, they are much closer to “case law” than the “non-binding, explanatory legal materials” at issue in the new SCOTUS case.  But that doesn’t even matter, because the JIs, including the footnotes and commentary that are found exclusively in the print version, at least qualify as “non-binding, explanatory legal materials.”  Further, it is undisputed that the JIs (both with and without the footnotes and commentary) are created by judges under the authority granted to them by the Wisconsin Court System and the Conference.  In fact, the JIs themselves even proudly proclaim that they are “the only official version of the instructions approved by the Wisconsin Criminal Jury Instructions Committee for the Wisconsin Judicial Conference.” (JI "Read Me" page, 2019 ed., on file with author.)  

It appears, then, that the judges and the judicial bodies named above cannot hold a copyright in the JIs.  But wait, you say!  It is actually UW, not the eleven judges or the Committee or the Conference that holds the copyright!  And there are two UW “reporters” who provide “assistance” to the eleven judges on the Committee. (JI Cover Page, 2019 ed., on file with author.)  Given that, maybe the judges transferred the copyright to the reporters, who then transferred it to their employer, UW.  Or maybe it went straight to UW by virtue of its employer-employee relationship with the “reporters.”  

Not so fast.  It’s not just that the judges can’t hold the copyright.  It’s that their work is “not copyrightable.”  In fact, this trick where a “reporter” takes the copyright in the judges’ work was tried and rejected back in 1834.  The new SCOTUS case explains:

Wheaton argued that the Justices were the authors and had assigned their ownership interests to him through a tacit "gift."  The Court unanimously rejected that argument, concluding that "no reporter has or can have any copyright in the written opinions delivered by this court" and that "the judges thereof cannot confer on any reporter any such right." (P. 9.)

This, in turn, could raise two additional arguments.  First, we’re talking about JIs, not the written court decisions that were at issue back in 1834.  But that distinction is not legally recognized.  “Rather than attempting to catalog the materials that constitute ‘the law,’” the doctrine prohibits copyright in anything and everything the judges produce. (P.11.)  Of course, this applies only to work produced in their official duties, such as JIs, court decisions, etc.  A judge is still free to crank-out a romance novel on the weekends and copyright it, if he or she wants.  More specifically, then, “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” (P. 12.)  To put it another way:

Instead of examining whether given material carries "the force of law," we ask only whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable. That is the framework our precedents long ago established, and we adhere to those precedents today.” (P.21.)

  

And second, I do see a possible escape route that UW predictably will try to use to save its copyright, but only in the written version of the JIs (although I don’t see how it could work in this case).  It is possible for a “reporter” to take copyright in his or her own written work, such as case head notes that the “reporter” added to a court’s written decision.  But that’s not applicable in the case of the Wisconsin JIs, for several reasons.

1.  The JIs themselves are clear that they are written by the judges.  It states that the JIs are “[p]repared for the Wisconsin Judicial Conference by its criminal Jury Instructions Committee, consisting of [eleven individual judges named here].” (JI Cover Page, 2019 ed., on file with author, emphasis added.)  It does go on to state that the judges received “assistance from” the former UW professor and the UW bureaucrat, the two “reporters,” but that would certainly not be enough to attribute authorship to them. (Id.)  Further, the “reporters” have no authority to create jury instructions; the Committee of eleven judges has been granted that authority. 

2.  In the new SCOTUS case, the material at issue was the “annotations” to the statutes, which could, in a way, be analogous to the footnotes and commentary in the written version of our JIs.  The “annotations” in that case were, in fact, created by a private company: “Lexis and its army of researchers perform the lion’s share of the work in drafting annotations[.]”  Nonetheless, because “the Commission supervises that work and specifies what the annotations must include[,]” SCOTUS held that the annotations could not be copyrighted. (P. 6.)  This seems to kill the argument that UW could hold copyright even in the footnotes and commentary, let alone in the JIs themselves, as the two “reporters” were clearly doing the bidding of, and merely assisting, the eleven-member Committee of judges.  

3.  All of that is a moot point.  In the case of Wisconsin JIs, of course, there isn’t even a suggestion that the “reporters” (the retired UW professor and the current UW administrator) are creating the footnotes and commentary in the written version of the JIs.  (And even if they were, it wouldn’t matter, because the judges are running the show.)  As indicated above, the JIs themselves make clear that the Committee, consisting of eleven judges, prepares the instructions. 

In sum, it might be time for UW to post “its” JIs, with footnotes and commentary, for free on the web.  It should make its work available to the public, free of charge, as most other states do.  (For example, here are the Illinois Criminal Jury Instructions, all 1,834 pages complete with committee notes and case cites, free of charge.)  UW can’t own the law.  As SCOTUS wrote, “The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.” (P. 10.)

NOTES: 

Please email me at mdc@CicchiniLaw.com if you know of different facts or legal authority that justify UW’s ownership of copyright in what seem to be judicially-created JIs, and I will delete or amend this post.  

Specific page numbers provided above may not match-up precisely with the linked case, as I was reading and citing to a printed version of the case in a different format.