copyright
Copyright status of a letter on U.S. Senator&#39;s letterhead
<p>Under <a href="https://www.law.cornell.edu/uscode/text/17/105" rel="nofollow noreferrer">17 USC 105</a>, there is no copyright protection for a &quot;work of the United States Government,&quot; which <a href="https://www.law.cornell.edu/uscode/text/17/101" rel="nofollow noreferrer">17 USC 101</a> defines as &quot;a work prepared by an officer or employee of the United States Government as part of that person’s official duties.&quot;</p>
<p>What would be the copyright status of a letter written to a private individual by a U.S. senator on official letterhead? Assume that the subject matter is not any official act of government, but falls under the category of constituent relationship building and getting re-elected.</p>
<p>I'm guessing the senator would hold copyright, but I wonder if anyone knows for sure.</p>

<p>The Copyright Office has determined, in <a href="https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf" rel="nofollow noreferrer">chapter 300</a> of the <em>Compendium of U.S. Copyright Office Practices,</em> on page 36, that the copyright bar extends to</p>
<blockquote>
<p>works created by the President; <strong>Congress;</strong> the federal judiciary;
federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties.</p>
</blockquote>
<p>So the Senator is a US employee for copyright purposes, at least according to the US Copyright Office. Technically, this is interpretation rather than law, and in theory a court might disagree, but if anyone is qualified to speak on this issue, it's the Copyright Office. In my opinion, it is most reasonable to assume that the Copyright Office is correct in their interpretation unless there is case law directly contradicting them.</p>
<p>The only question is whether the letter was created by the Senator &quot;while acting within the course of his or her official duties.&quot; I'm not aware of any case law suggesting that constituent building is or is not an &quot;official duty&quot; of a US Senator, and there are reasonable arguments to be made in both directions. On the one hand, the letter is clearly beyond the scope of Congress's lawmaking and oversight Constitutional functions. On the other, the office of Senator is an inherently political office, and a case can be made that campaigning for reelection is part of the job. Perhaps surprisingly, <em>that</em> question was extensively litigated during E. Jean Carroll's first defamation lawsuit against Donald Trump, because Trump argued that his statements about Carroll were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is considered a question of fact for a jury to decide (at least <a href="https://www.documentcloud.org/documents/23785422-carrollca2opn042123" rel="nofollow noreferrer">according to the Second Circuit</a>).</p>
<p>What can be said is who does <em>not</em> hold copyright: The US Senate and/or the US government as a whole. The only way the Senate could acquire copyright in this letter (short of the Senator directly granting it to them) would be as a work made for hire, but the work-for-hire doctrine requires that the work be prepared by an employee as part of their official duties, just like the federal copyright bar. So the Senate cannot acquire copyright in this manner. If anyone owns the copyright, it is most likely the Senator.</p>
