Can I file a 'common-law copyright' on my name at the Texas county clerk's office?

TX AG Opinion GA-0450: Can a county clerk record a "common-law copyright"?

Plain-English summary

The Hunt County Attorney asked the Attorney General a narrow but recurring question: can a county clerk file and record a "common-law copyright"? The question came up because an individual had presented the Hunt County Clerk with a document titled "Common-Law Copyright Notice" that tried to reserve "common-law copyright" rights in a "trade-name/trademark" version of the person's own name, written in all capital letters. The county attorney did not think the clerk had authority to accept it and asked the office to confirm.

The Attorney General confirmed the clerk cannot record it. The governing principle is simple: a county clerk may record only the documents that a statute authorizes, requires, or permits to be recorded in the clerk's office. The Local Government Code lists what a clerk must record (deeds, mortgages, and similar instruments required or permitted by law, subdivision plats, military discharge records, certain probate records, county court case records, and releases of filed instruments). A clerk has a ministerial duty to record documents that fall within those statutory categories, but is prohibited from filing documents that no statute covers. Texas courts and prior AG opinions have applied this to reject odd filings, including documents labeled "refusal to pay property taxes," "common law lien," and "declaration of person being a sovereign."

No Texas statute authorizes, requires, or permits recording a common-law copyright notice, and no federal law gives a county clerk any role in the federal copyright registration process (which runs through the U.S. Copyright Office, not county clerks). So the clerk is not just free to decline the document, the clerk is actually prohibited from filing and recording it.

Currency note

This opinion was issued in 2006. 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.

The Local Government Code recording provisions (chapters 191 and 192) and federal copyright procedures may have changed since 2006. A clerk facing an unusual filing today, or a person trying to understand what can be recorded, should confirm the current statutes and consult counsel rather than rely on the section numbers listed here.

Who this opinion affected (as of 2006)

County clerks: The opinion confirmed that a clerk could not record a "common-law copyright" notice and, more generally, that a clerk is prohibited from recording any document no statute authorizes, requires, or permits.

People attempting "common-law copyright" or similar filings: The opinion explained that presenting such a document to a county clerk does not create any recorded right, because the clerk lacks authority to accept it. Federal copyright is handled by the U.S. Copyright Office, not county clerks.

County attorneys advising clerks: The opinion gave county attorneys a clear basis for advising clerks to reject this category of filing.

Common questions

Can I copyright my name by filing a notice with the county clerk?
No. The opinion concluded that no Texas statute authorizes a county clerk to record a "common-law copyright" notice, so the clerk cannot file it. Filing such a document with a county clerk creates no recorded right.

Why can't the clerk just record whatever someone brings in?
Because, as the opinion explained, a county clerk may record only documents that a statute authorizes, requires, or permits. A clerk has a ministerial duty to record qualifying documents but is prohibited from recording ones outside the statutory categories.

What kinds of documents must a clerk record?
The opinion listed the statutory categories: deeds, mortgages, and other instruments required or permitted by law, subdivision plats, military discharge records, certain probate records, county court case records, and releases of filed instruments.

Where does copyright actually get registered?
The opinion noted that federal copyright registration runs through the United States Copyright Office and that no federal law creates a role for the county clerk in that process.

Background and statutory framework

A county clerk may record only documents that are authorized, required, or permitted by statute to be recorded (Tex. Att'y Gen. Op. No. JC-0156 (1999) at 2; Tex. Att'y Gen. LO-98-016 at 3). Local Government Code section 191.001 requires the clerk to record the contents of each instrument filed that the clerk is authorized to record and to keep the records indexed and arranged (Tex. Loc. Gov't Code Ann. § 191.001(c)-(d) (Vernon 1999); see Tex. Const. art. V, § 20). Chapter 192 lists the required records: deeds, mortgages, and other instruments required or permitted by law (§ 192.001 (Vernon 1999)); subdivision plats (§ 192.0015); military discharge records (§ 192.002(a) (Vernon Supp. 2005)); certain probate records (§ 192.005 (Vernon 1999)); county court civil, criminal, and probate records (§ 192.006(a)); and releases of filed instruments (§ 192.007).

A clerk's duty to record statutorily covered instruments is ministerial (Turrentine v. Lasane, 389 S.W.2d 336, 337 (Tex. Civ. App.-Waco 1965, no writ)), but a clerk is prohibited from filing a document no statute authorizes (City of Abilene v. Fryar, 143 S.W.2d 654, 657 (Tex. Civ. App.-Eastland 1940, no writ); Tex. Att'y Gen. Op. Nos. JC-0156 (1999) at 2, DM-389 (1996) at 3; Tex. Att'y Gen. LO-98-016 at 6). Because no Texas statute and no federal law authorizes recording a common-law copyright, the opinion concluded the clerk is prohibited from filing and recording it.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 191.001(c)-(d), 192.001, 192.005 (Vernon 1999); §§ 192.0015, 192.006(a), 192.007; § 192.002(a) (Vernon Supp. 2005)
• Tex. Const. art. V, § 20

Cases and prior opinions:

• Turrentine v. Lasane, 389 S.W.2d 336, 337 (Tex. Civ. App.-Waco 1965, no writ)
• City of Abilene v. Fryar, 143 S.W.2d 654, 657 (Tex. Civ. App.-Eastland 1940, no writ)
• Tex. Att'y Gen. Op. Nos. JC-0156 (1999), DM-389 (1996); Tex. Att'y Gen. LO-98-016

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0450
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0450.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 15, 2006

The Honorable Joel D. Littlefield
Hunt County Attorney
Post Office Box 1097
Greenville, Texas 75403-1097

Opinion No. GA-0450

Re: Whether a county clerk is authorized, required, or permitted by statute to file and record a common-law copyright (RQ-0449-GA)

Dear Mr. Littlefield:

A county clerk may record only documents that are authorized, required, or permitted by statute to be recorded in the clerk's office. See Tex. Att'y Gen. Op. No. JC-0156 (1999) at 2 (quoting Tex. Att'y Gen. LO-98-016, at 3). You ask whether a county clerk is authorized, required, or permitted to file and record a common-law copyright.

An individual has presented for recording to the Hunt County Clerk a document labeled "Common[-]Law Copyright Notice." In it, the individual seeks to reserve all "common-law copyright" rights "of trade-name/trademark, TIMOTHY SHAMELL NEWSOME©." See Copyright Notice attached to Request Letter, supra note 1. You do not believe that the clerk has authority to accept the document for recording, and you seek our confirmation. See Request Letter, supra note 1, at 1.

Local Government Code section 191.001 requires a county clerk to "record . . . the contents of each instrument that is filed for recording and that the clerk is authorized to record" and to keep the records "properly indexed and arranged." TEX. LOC. GOV'T CODE ANN. § 191.001(c)-(d) (Vernon 1999); see also TEX. CONST. art. V, § 20 (stating that the Legislature shall prescribe the county clerk's duties). Chapter 192 lists the documents that a county clerk is required to record:

• "each deed, mortgage, or other instrument that is required or permitted by law to be recorded," TEX. LOC. GOV'T CODE ANN. § 192.001 (Vernon 1999);
• subdivision plats, see id. § 192.0015;
• military discharge records, see id. § 192.002(a) (Vernon Supp. 2005);
• certain probate records, see id. § 192.005 (Vernon 1999);
• records of the county court in civil and criminal cases and probate matters, see id. § 192.006(a); and
• releases of filed instruments, see id. § 192.007.

A county clerk has a ministerial duty to record all written instruments that are statutorily authorized, required, or permitted to be filed in the clerk's office. See Turrentine v. Lasane, 389 S.W.2d 336, 337 (Tex. Civ. App.-Waco 1965, no writ). But a county clerk is prohibited from filing and recording a document that no statute authorizes, requires, or permits the clerk to accept. See Tex. Att'y Gen. Op. No. JC-0156 (1999) at 2; see also City of Abilene v. Fryar, 143 S.W.2d 654, 657 (Tex. Civ. App.-Eastland 1940, no writ) (stating that a county clerk had no authority to file or record certain unstamped deeds of trust and therefore could not file or record such documents); Tex. Att'y Gen. Op. No. DM-389 (1996) at 3 (advising county clerks not to file documents generated in or for a "purported state or local court not . . . named in [the] constitution or statute"); Tex. Att'y Gen. LO-98-016, at 6 (concluding that a county clerk is not authorized to accept documents labeled "refusal to pay property taxes," "common law lien," and "declaration of person being a sovereign").

No Texas statute authorizes, requires, or permits the filing and recording of a common-law copyright notice. In addition, no federal law creates a role for the county clerk in the federal copyright registration process. See UNITED STATES COPYRIGHT OFFICE, COPYRIGHT BASICS, at www.copyright.gov/circs/circ1.html (last visited July 17, 2006).

We consequently conclude that a county clerk is not authorized, required, or permitted to file and record a common-law copyright. Without such authority, a county clerk is prohibited from filing and recording such a document.

SUMMARY

A county clerk may not file and record a common-law copyright.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Joel D. Littlefield, Hunt County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Feb. 13, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. See Letter from Timothy Shamell Newsome to Honorable Linda Brooks, Hunt County Clerk (Jan. 11, 2006) (attached as Exhibit A to Request Letter).