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Are Contracts Copyrighted?

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Written by Craig M. Kaiser, Founding Partner

Written by Craig M. Kaiser, Founding Partner

Written by Craig M. Kaiser, Founding Partner

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Are Contracts Copyrighted? - Houston Business Lawyer

Contract Agreement

As a business owner, and especially if you’re a new business owner, you’ve probably Googled something along the lines of "Contract for _______." You fill in the blank.

Businesses use contracts for many reasons, including works-made-for-hire agreements, outside contractor agreements, new hires, vendors, non-disclosure agreements, property leases. As a business owner, you may find yourself combing through contracts more than you would like. And when the need for a new contract arises, you may find yourself turning to Google to find a template or one you can copy. Sometimes these templates are okay, but sometimes they’re not.

What many business owners don’t know is that contracts are subject to copyright law. Copyright law protects the intangible: ideas expressed in an original way, also known as intellectual property. Any original body of work is protected under copyright law. This means it is protected from being copied by another person without the creator’s permission. If it is, the creator has the right to take legal action against that person, either suing him or ordering him to stop production.

Phillips | Kaiser

"What many business owners don’t know is that contracts are subject to copyright law. Copyright law protects the intangible: ideas expressed in an original way, also known as intellectual property."

--- CRAIG M. KAISER, HOUSTON BUSINESS ATTORNEY

When is a document copyrighted?

A creator can officially register his or her copyright with the U.S. Copyright Office, but this isn’t necessary for the work to be protected under copyright law. Common law copyright protection is given to any original work without having to register formally. However, creators of major works such as books and music often register their copyright for proof of ownership should any legal issues arise in the future.

According to Nimmer on Copyright, “There appear to be no valid grounds why legal forms such as contracts, insurance policies, pleadings and other legal documents should not be protected under the law of copyright.” Thus, this means that a contract you copied-and-pasted from the internet could very well be protected under copyright law even though it was never registered.  As a result, if you’re copying it verbatim for your own business, you could be subject copyright to a potential copyright claim by the original author.

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Contract Agreement Rule #1: Use Original Wording

Perhaps to avoid a copyright claim, consider wording your contracts in an original way. Don't simply change the names and dates on a contract; but, change the phrasing enough for it to be considered an original body of work. What is original enough? What is different enough?

Contract Agreement Rule #2 : Draft Original Contracts

American Family Life Insurance Co. of Columbus (AFLAC) v. Assurant, Inc. is an oft-cited case in the matter of contracts and copyright law. In 2006, AFLAC sued Assurant for using AFLAC’s insurance policy language verbatim in its own contracts. AFLAC had recently edited its policies to sound more narrative, making it easier for customers to read. This unique narrative language also made it easy for a judge to rule this case in favor of AFLAC, as Assurant had clearly lifted this unique narrative style.

A company of AFLAC’s size certainly had a team of legal experts working on this new policy language.  Hiring legal counsel to write original contracts is often necessary in the business world. The last thing you want is for your business to fail as a result of being sued by another company for using its contract. A business lawyer who specializes in contract law can draft contracts from scratch so that you know your business is safe from possible copyright claims.

Contract Agreement Rule #3 : Hire A Business Lawyer

Using a business lawyer also ensures that every "i" is dotted and "t" is crossed in a deal. While using someone else’s contract can be helpful as a guide or template, a generic contract probably doesn’t include everything you need for your specific business needs. A legal professional can ensure that your business needs and strategy are reflected in your contracts.

In short, "yes," contracts can be protected under copyright law. It is up to you to make sure that your contracts aren’t subject to a copyright claim. A business lawyer can make sure that you have a new, clean, copyright-protected contract that protects both is customized for your business and protects your needs.

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