29 St. Louis U. L.J. 91 (1984-1985)
Copyrightability of Works of the Federal and State Governments under the 1976 Act; Nodiff, Marvin J.

handle is hein.journals/stlulj29 and id is 107 raw text is: COPYRIGHTABILITY OF WORKS OF THE FEDERAL AND
STATE GOVERNMENTS UNDER THE 1976 ACTt
MARVIN J. NODIFF*
I. INTRODUCTION
Copyrightability of works of the federal government is prohibited
by the clear language of section 105 of the Copyright Act of 1976:
Copyright protection under this title is not available for any work of
the United States Government . . . .I When this strong expression of
the preference that government works be in the public domain is read
in combination with the broad federal preemption of authority over pri-
vate copyright, it is curious that the 1976 Act contains no express di-
rection regarding works of state governments.
A state looking for guidance concerning copyright protection for
its own works must clear a path through the policies embraced in sec-
tion 105, as well as those rejected, discarded, or merely unattended to
in the legislative history. Determining congressional intent, unfortu-
nately, is far from an exact science because the policy basis ultimately
embraced by Congress often is left unclear.
A state must look to case law, which, although sparse, does ad-
dress some of the major questions in this area. The courts have pro-
duced some bright lines for states to follow, but have encountered
problems in distinguishing works produced by government employees in
their official capacities from works produced by such employees in their
private capacities.
A search for the congressional and judicial approaches, augmented
by a review of the commentary from the legal community, shows that
legislation and case law are substantially interwoven. Case law explains
and amplifies policy considerations and fills some of the voids left in the
legislation. A variety of problems, however, are left unresolved. It will
be helpful at the outset to pose a few questions to guide this inquiry:
Are state governments bound by the same prohibition as the federal
t An earlier draft of this Article placed second in the 1982 Nathan Burkan
Memorial Competition and will appear in 32 ASCAP COPYRIGHT LAW SYMPOSIUM
(1984).
* Associate, Dolgin, Beilenson, Klein, Lake & Berkowitz, Clayton, Mo.
1. 17 U.S.C. § 105 (1982). The remainder of this provision reads: but the
United States Government is not precluded from receiving and holding copyrights
transferred to it by assignment, bequest, or otherwise.

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