Q&A – Copying Contract Language
A. Under Section 102 of the Copyright Act, copyright protection subsists . . in original works of authorship fixed in any tangible medium of expression . . . [including] literary works . . . .” Therefore, writings generally are protected by copyright law, just as are photographs.
But under copyright law, ideas are not protected – only the expression of those ideas. See Section 102(b) – “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”)
Many contracts contain language for which there are limits in the number of ways the ideas can be expressed to such extent that the expression can be considered to “merge” with the underlying idea. Known as the “merger doctrine,” the law states, in effect, that if there are few ways to say it or do it, then copyright law does not protect the expression of the idea. [To see how this applies to photographs, review Nancy Wolff’s PowerPoint presentation on copyright law, beginning with slide 37, “Idea vs. Expression”). For additional information, review Lewis R. Clayton’s article on the merger doctrine.
In some instances, you may be given an implied or actual license to use a contract, such as those provided in books you purchase or are provided at workshops. Check Tad Crawford’s book, Business and Legal Forms for Photographers, for a great source of contracts. Furthermore, reviewing and comparing several contracts may help you understand the different provisions and suggest what protections you need.
In sum, it’s always risky to copy verbatim another’s work and it’s always best to ask your attorney to prepare contracts that fit your specific needs. Your lawyer then can determine what can be copied from other contracts.
Take my advice; get professional help.
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