Can a New York county copyright its informational pamphlets (like 911 brochures or food stamp guides) to stop a county legislator from reprinting them with added advertising for his private business?

Plain-English summary

Onondaga County had a problem. A county legislator was reprinting county pamphlets (such as the 911 brochure and food stamp eligibility guides) with added language presenting the legislator's private business as if it were the source of the information. The county worried about confusing the public, undermining the credibility of the government information, and risking that altered versions would deliver inaccurate or misleading content under the guise of county authority.

The AG identified the legal lever: federal copyright. Three lines of reasoning support the conclusion.

First, the county has a substantial governmental interest in preventing unauthorized alteration of its public-information pamphlets. Public confidence in government messaging depends on the integrity of the message. Altered pamphlets can confuse readers about whether they are getting government information or commercial pitches.

Second, the federal Copyright Act covers the works. 17 USC § 101 defines copyrightable subject matter; § 102(a)(1) extends copyright to original literary works fixed in a tangible medium. County informational pamphlets fall within that scope. Town of Clarkstown v Reeder, 566 F Supp 137 (SDNY 1983), is the directly applicable precedent: a municipality can copyright its written works.

Third, federal law supplies the enforcement mechanism. § 106 gives the copyright owner exclusive rights to reproduce, prepare derivative works, and distribute the copyrighted work. § 301 preempts equivalent state-law rights. § 412 requires registration as a precondition to suing for infringement. § 501 defines an infringer. §§ 502 and 504 provide injunctive relief and damages.

Open question: federal works of the U.S. government are not subject to copyright protection under § 105. § 105 does not apply to state and local government works. State and local governments can copyright their works, even though the federal government cannot copyright its own. The Onondaga County pamphlets are not federal works and so are eligible for copyright.

The AG's conclusion: the county can register copyrights and use federal injunctive and damages remedies to stop the legislator's alteration and redistribution.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can state and local governments hold copyrights?

Yes. 17 USC § 105 bars copyright in works of the U.S. federal government, but it does not bar state or local government copyrights. Town of Clarkstown v Reeder confirmed that municipalities can copyright their works. State law in some jurisdictions (the "edicts of government" doctrine) limits copyright on legal pronouncements like statutes and judicial opinions, but ordinary government publications are eligible.

How does the county actually obtain a copyright?

Copyright attaches automatically when an original work is fixed in a tangible medium. To sue for infringement, however, the county must register the work with the U.S. Copyright Office under 17 USC § 412. Registration involves a deposit copy, an application, and a fee. The fee is small relative to the cost of an infringement suit.

What remedies does the county get from a copyright?

Under § 502, the court can enter an injunction stopping the infringing use. Under § 504, the copyright owner can recover actual damages and profits or, where registration was timely, statutory damages (which can be substantial without proof of actual loss).

Doesn't free speech protect the legislator's right to reprint county materials?

The First Amendment does not give third parties the right to alter and republish copyrighted works as their own. Fair use under 17 USC § 107 might cover quoting from county materials in commentary or news, but it would not cover wholesale reprinting with added commercial advertising presenting the legislator's business as the source.

What about the public-records aspect?

Government records being public for inspection (FOIL purposes) does not mean they are in the public domain for copyright purposes. People can read, copy for personal use, and quote government works without infringing. Altering and republishing them as a third party's own (especially for commercial promotion) is a separate question, and federal copyright supplies the rule.

Could the legislator just be told to stop?

That is the practical first step. A cease-and-desist letter referencing federal copyright (after the county registers the works) typically resolves these situations. The county pursues an injunction in federal court if the legislator continues.

Background and statutory framework

The federal Copyright Act, 17 USC §§ 101 et seq., is the comprehensive federal scheme. § 101 contains definitions. § 102(a)(1) extends copyright to original literary works fixed in a tangible medium. § 106 enumerates the exclusive rights of the copyright owner. § 301 preempts state-law equivalents to ensure uniform federal copyright protection. § 412 requires registration as a precondition to suit. § 501 defines an infringer. §§ 502 and 504 provide injunctive and monetary remedies. § 105 (not cited in the opinion but relevant) bars federal-government works from copyright; it does not reach state or local works.

Town of Clarkstown v Reeder, 566 F Supp 137 (SDNY 1983), is the directly applicable Southern District opinion holding that a municipality can copyright its publications. The AG relies on it for that proposition.

Citations

• 17 USC § 101 (copyright definitions).
• 17 USC § 102(a)(1) (copyrightable subject matter: original literary works).
• 17 USC § 106 (exclusive rights of copyright owner).
• 17 USC § 301 (federal preemption of equivalent state rights).
• 17 USC § 412 (registration prerequisite to infringement suit).
• 17 USC § 501 (definition of infringer).
• 17 USC § 502 (injunctive relief for infringement).
• 17 USC § 504 (damages and profits for infringement).
• Town of Clarkstown v Reeder, 566 F Supp 137 (SDNY 1983) (municipality may copyright publications).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-54_pw.pdf

Original opinion text

17 USC §§ 101, 102(a)(1), 106, 301, 412, 502, 504.
A county may obtain a copyright under federal law in order
to prevent unauthorized use of its publications.
November 25, 1997

Christopher M. Mack, Esq.
Chief Deputy County Attorney
County of Onondaga
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, NY 13202

Informal Opinion
No. 97-54

Dear Mr. Mack:
You have informed us that various departments of county
government print informational or promotional literature for
public distribution by the county. You inquire whether it is
permissible for a county legislator to print an additional
message on this literature advertising his or her own private
business and then redistribute the altered literature to the
public.
In a telephone conversation, you gave examples of county
publications and described the alterations that would be made by
the legislator. County publications such as emergency 911
pamphlets, describing how to use the emergency telephone system,
and publications explaining eligibility requirements for food
stamps would be altered with language giving the impression that
the information is being produced and provided by the
legislator's private business rather than by the county.
In our view, the county legislature reasonably may decide
that any alteration of publications produced by the county for
public purposes is contrary to the public interest and should be
prohibited. Under the examples given, while the message has not
been changed, the public may be less likely to read and find
credible a publication apparently produced by a private business
rather than the county. Certainly the county has an interest in
prohibiting an alteration of the message which could cause
dissemination of inaccurate or misleading information.
Therefore, in our view the county has a substantial governmental
interest to protect the public from any alteration of
publications produced and distributed to the public by the
county.

2
The county can prevent the unauthorized alteration,
reproduction and distribution of its pamphlets by third parties
and assert other protections by registering a copyright of the
work under provisions of federal law. 17 USC §§ 101, et seq. A
pamphlet, such as those described above, falls within the scope
of subject matter that can be copyrighted. 17 USC §§ 101,
102(a)(1); see, Town of Clarkstown v Reeder, 566 F Supp 137 (SDNY
1983). The owner of a copyright obtains certain exclusive
rights, including the right to reproduce the copyrighted work,
prepare derivative works from the copyrighted work and distribute
copies of the copyrighted work to the public. 17 USC § 106. The
owner also has exclusive rights to authorize any of the above
uses of the copyrighted work. Id.
Registration of the work is a prerequisite to the
commencement of an action to prevent infringement of a copyright.
17 USC § 412. Anyone who violates any of the exclusive rights of
the copyright owner is an "infringer" of the copyright. 17 USC
§ 501. An appropriate court may grant an injunction to prevent
infringement of a copyright or award damages to a copyright owner
for infringement of the copyright. 17 USC §§ 502, 504.
The federal copyright law is the exclusive means through
which these equitable rights can be acquired by the owner of a
work and federal law preempts the common law or statutes of any
state which provide equivalent rights. 17 USC § 301. Therefore,
the county can obtain a copyright under federal law in order to
prohibit unauthorized use of its publications.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions