# Copyright law as applies to drafting laws



## Jobsaver (May 3, 2011)

What is a good rule of thumb for drafting ordinances as pertains to using other municipal ordinances as models. Do copyright laws apply? Should one municipality request permission to freely use the content of posted ordinances when drafting their own ordinances?

I have been charged to draft a new Sign Ordinance for my ahj, and know of several model ordinances posted online I want to "borrow" from, including certain drawings.

Guidelines? Suggestions?


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## permitguy (May 3, 2011)

The only hang-up that comes to mind right away would be if the model ordinance (including drawings) was prepared by a third party -such as a consulting firm - under contract to the AHJ in question.  In that case, the third party may claim a copyright to their intellectual property.  Most municipalities I am familiar with don't draft ordinances this way, so it may not be a problem.

I'd give the AHJ a courtesy call and see what they say.


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## rshuey (May 3, 2011)

I have done that in the past. The easiest thing to do is pick up the phone and call the municipality. Crazy, right?


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## brudgers (May 3, 2011)

Once they become law, there is no copyright.

Access by the public trumps intellectual property rights when it's law.

_Southern Building Code v. Veeck _is the case which made it clear.


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## cda (May 3, 2011)

make sure you change the city name!!!!!!!!!!!!!!!!!!!!!!!


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## fatboy (May 3, 2011)

cda......now that's funny. rshuey is right, even if it's not illegal, doesn't hurt to let them know you are "borrowing" from them. Good neighbors and all that crap..........


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## Jobsaver (May 3, 2011)

fatboy said:
			
		

> Good neighbors and all that crap..........


LOL!!!!!!!!!!!!!!!!!!!!!!!!!!


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## permitguy (May 3, 2011)

FYI - The Veeck reference is valid, but the decision was not consistent with similar cases in other federal circuits, was not unanimous, and has been widely criticized as flawed.  So far, SCOTUS has refused to sort this out.  I think this is one that conarb has posted on before (?).

It remains simple enough to call the AHJ in question, and ask your AHJ's legal counsel if there are still questions.  My guess is it won't be a problem.

Let us know how it turns out.


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## FredK (May 3, 2011)

cda said:
			
		

> make sure you change the city name!!!!!!!!!!!!!!!!!!!!!!!


Now that's funny, but exactly what I did when we were checking other AHJ's in going with the 06 codes.


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## mtlogcabin (May 3, 2011)

Is it registered if not oh well it is their loss.

Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration (note however that when the United States joined the Convention in 1988, they continued to make statutory damages and attorney's fees only available for registered works).


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## conarb (May 3, 2011)

Brufgers said:
			
		

> Once they become law, there is no copyright. Access by the public trumps intellectual property rights when it's law.
> 
> _Southern Building Code v. Veeck _is the case which made it clear.


No, Veeck won in the 5th Circuit (Texas, Louisiana. and Mississippi) and only applies there, a similar case was brought in (I believe) the 8th Circuit ruling for the code writing agencies, the Supreme Court unbelievably refused to grant certiorari, so the situation remains up in the air, but you are right in three states.


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## Jobsaver (May 4, 2011)

The problem I am having with asking directly is that folks don't want to say . . . one way or the other. I suspect the question is ending up in the black holes of the various municipal attorneys' offices, (attorneys are well practiced in the art of no response).

Perhaps this is a case of, "It is better to ask forgiveness than permission."


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## Architect1281 (May 10, 2011)

The first two laws on my municipalities "Code of Ordinace" are

Small pox vaccinations are required of all residents. (since transferred to state right)

and

Bounty on Coyote is $0.25 submit nose as proof (still on book)

Try and copywrite those.


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## brudgers (May 10, 2011)

conarb said:
			
		

> No, Veeck won in the 5th Circuit (Texas, Louisiana. and Mississippi) and only applies there, a similar case was brought in (I believe) the 8th Circuit ruling for the code writing agencies, the Supreme Court unbelievably refused to grant certiorari, so the situation remains up in the air, but you are right in three states.


Citation for an opinion contrary to Veek?


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## righter101 (May 12, 2011)

Copyright question, different topic

I routinely cut and paste I-Code language on to construction drawings I am approving.

Could this become a copyright issue?


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## mtlogcabin (May 12, 2011)

In short no


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## righter101 (May 12, 2011)

How bout photo copying the IRC and selling it for 40 bucks??


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## mtlogcabin (May 12, 2011)

That will get you in trouble


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## Mark K (May 12, 2011)

The way I understand the copyright ruling is that ICC retains the copywrite to the IRC but the California Residential Code which is based on the IRC is not copywrited.  It has to be adopted by the state or local jurisdiction first.  In those jurisdictions that do not adopt any amendments to the IRC that this might be a fine distinction.


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## conarb (May 12, 2011)

Brudgers said:
			
		

> Citation for an opinion contrary to Veek?


Court decisions are only binding in areas under their jurisdiction, even if there was no contrary decision Veeck would only be binding law in the 5th Circuit.  The other case was the First Circuit - Building Officials & Code Administrators v. Code Technology, Inc., 628 F.2d 730 (1980).  So as it stands Veeck is binding in Oklahoma, Texas, and Louisiana, Building Officials is binding in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.  The rest of the Union is on it's own.

What this means is that if you republish the code in Texas and the ICC sues you you win based on the precedent of the 5th Circuit, if you republish the code in Maine and the ICC sues you the ICC wins based upon the precedent of the 1st Circuit, if you republish the Code in California there is no precedent, the courts in California are bound by no authority, if it gets appealed to the 9th Circuit the court will take into account all cases briefed and grant persuasive authority to both Veeck and Builders as well as consideration to all other presented cases, but the 9th Circuit is bound by none of them.  A guy has been republishing the codes in California and the ICC hasn't sued him, I speculate that if such a case were brought and gets appealed to the Supreme Court that the ICC fears that the court could no-longer dodge the issue, and they fear losing like they did in Veeck, if that happened the precedent of the Supreme Court would serve as precedent nationwide.

BTW, the reasoning of the judge who refused to grant cert allowing the Supreme Court to hear the case was that the facts of Veeck and Builders were dissimilar: ergo, no conflict in the Circuits, they are bound to take conflicts between the Circuits, one of the few things they are bound to do.


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## brudgers (May 12, 2011)

IANAL - but as I understand it the dissimilarity was that Veek published the code and referenced it as the enacted law rather than as the model code.

In other words, one can't legally publish the "2009 IBC as published by the ICC," but one can publish the "Building Code adopted by the State Fire Marshal of Alabama."


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## Mule (May 13, 2011)

More than likely the AHJ you are borrowing it from borrowed it from another AHJ in the first place!

If the document is posted on the I-net it is public information imo.


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## brudgers (May 13, 2011)

Mule said:
			
		

> More than likely the AHJ you are borrowing it from borrowed it from another AHJ in the first place! If the document is posted on the I-net it is public information imo.


If a car is in the ROW, is it a public car?


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## Mule (May 13, 2011)

If the car is a public document and on the I-net then yes it would be a public car!


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## Pcinspector1 (May 13, 2011)

Would it be a cpoy right infringement to list an adopted code section in a city newsletter? Lets say IPMC section 302.4.on weeds as an example?


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## conarb (May 13, 2011)

I think the Supreme Court wants to stay away from building codes as far as they can, if forced to address them, and a conflict in the Circuits should be the force that does that, they want as narrowly focused situation as possible. The codes are constitutionally limited to the police power to promote the health, safety, and welfare (the word "general" was never there, but broadening utilitarian language).  In 1927 the court addressed zoning in Gorieb v. Fox, 274 U.S. 603, 604 (1927), never touched the issue again fearing that they would invalidate zoning nationwide, then readdressed zoning in the 80s in two California Coastal Commission cases.

If the ICC brought an action against the California guy republishing codes it could go to the 9th Circuit, a famously liberal Circuit and the most overruled Circuit in the nation, this would probably bring in the ACLU with an _amicus curiae_ brief (the ACLU famously supported the right of the Nazis to march in Skokie Illinois even though both the ACLU membership and the population of Skokie were heavily Jewish), with codes expanding well-beyond their purported police power they may well throw them all out, like they did with racial quotas when forced to address in Regents of the University of California v. Bakke, 438 U.S. 265 (1978)¹.

Social engineering codes like Green Codes and Energy Codes go beyond protecting the health, safety, and welfare of the community, the Supreme Court wants to stay away from even going near them in even a narrowly tailored case, or they may end up with another Bakke throwing everything out when even narrowly tailoring their decision. Look where zoning has gone after Gorieb in 1927, but who knows what they would do, just look at what is considered a conservative court did in Kelo v. City of New London, 545 U.S. 469 (2005)², granting cities the right to condemn private property for the public good defined as increased city tax revenue!

¹ http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke

² http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London


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## mtlogcabin (May 13, 2011)

Copying portions for plan reviews comments or part of an educational or news article are okay 

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:


The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

The nature of the copyrighted work

The amount and substantiality of the portion used in relation to the copyrighted work as a whole

The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 _Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law_ cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.


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## Papio Bldg Dept (May 13, 2011)

Jobsaver said:
			
		

> Perhaps this is a case of, "It is better to ask forgiveness than permission."


nice one J!  best of luck with this.


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## mtlogcabin (May 20, 2011)

righter101 said:
			
		

> I routinely cut and paste I-Code language on to construction drawings I am approving.Could this become a copyright issue?


I e-mailed this question to ICC Publishing they called me back today with the answer and then some

You may copy and past as many specific code sections as needed in prepairing your plan review comments. One reason I-Quest came about.

You may copy code sections for use in letters, handouts, drawings and other similar documents.

You may copy up to 5 pages of a code to be used by a homeowner, contractor or tradesman. Example would be providing the pages related to safety glazing in the IRC.

Do not put the codes on a website.

If in doubt contact ICC Publishing for written permission.


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## conarb (May 20, 2011)

Mountain Man said:
			
		

> Do not put the codes on a website.


Wow, I copy and paste codes here and other websites all the time.  I doubt that they are going to take us to court for doing it, they haven't taken that California guy to court who has post the last two complete  cycles.


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## brudgers (May 20, 2011)

mtlogcabin said:
			
		

> I e-mailed this question to ICC Publishing they called me back today with the answer and then someYou may copy and past as many specific code sections as needed in prepairing your plan review comments. One reason I-Quest came about.
> 
> You may copy code sections for use in letters, handouts, drawings and other similar documents.
> 
> ...


Those restrictions apply to the model code.

If you publish the laws of your jurisdiction, ICC has no say in the matter.


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## mtlogcabin (May 20, 2011)

She was reffering to the an entire code on a web site



> If you publish the laws of your jurisdiction, ICC has no say in the matter.


Agree however the majority of goverments do not "publish" their building code building code laws they are adopted by reference,


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## Mark K (May 20, 2011)

There is a difference between ICC's position and what is allowed by copyright law.  What ICC is saying is this is where they draw the line.  I see ICC getting worried enought to take action only when either it arguably impacts code sales or when there is some misrepresentation of what is being published that they see as impacting them.

From a practical point of view I believe that an individual would have to be pretty far over the line before ICC would take any action.

I suggest that the existance of the ICC web site http://publicecodes.citation.com/st/index.htm is a recognition that they could not prevent a state such as California from putting the adopted code on thier web site.  This web site makes the code availible while making it difficult to use thus encouraging individuals to purchase an official copy.  This allows the states to claim the code is availible to the public without cutting into ICC's sales.


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## righter101 (May 20, 2011)

mtlogcabin said:
			
		

> I e-mailed this question to ICC Publishing they called me back today with the answer and then someYou may copy and past as many specific code sections as needed in prepairing your plan review comments. One reason I-Quest came about.
> 
> You may copy code sections for use in letters, handouts, drawings and other similar documents.
> 
> ...


Do you have a copy of their letter including your question specifically that you could share??

Thanks for checking on this with ICC


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## mtlogcabin (May 20, 2011)

My question was;

Under the "fair use doctrine" codified in Section 107 of the copyright laws (title 17, U S Code) what does ICC consider "fair use" of the documents you publish?

I cut and paste code sections on my plan review comments. Is this Okay?

I will copy and give to homeowners/contractors pages from the code to use. Example ANSI A117 or IRC potal frame garage sections. Is this okay?

I did not get a written response. We spoke on the phone for about 15 minutes and she was quite helpfull in giving me  examples and flexibility as it relates to doing our jobs. The limit of 5 pages is not cast in stone but a guide to remember when copying things for other people.


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## cda (May 24, 2011)

watch out the icc police may be watching you
	

		
			
		

		
	

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