Are contracts copyrighted? Any contract that's drafted in a unique manner instead of using standard run-of-the-mill language may be automatically covered by copyright protection.

You may be able to copyright certain elements of drafting a contract such as the way you use the clauses or the key phrases. Basically, there are two difficulties involved in copyrighting a generic contract as such:

  • Idea vs. Expression: You can only copyright the way you express an idea but not the actual idea. For example, while you may be able to get a copyright for the specific use and arrangement of words in a clause for releasing the other party from liability, you can't restrict others from using a clause to release a party from liability.
  • Original Expression: You can only claim a copyright for an original expression. Since you must use certain words in a contract in order to get the desired legal effect, you may find it extremely difficult to prove that a clause you've drafted is an original expression. However, if you are creative enough, you may be allowed to claim a copyright to the extent of your creativity.

According to the book “Nimmer on Copyright,” there doesn't seem to be any valid reason to exclude contracts and other legal documents from the protection of the copyright law. However, that doesn't imply that all contracts are copyrighted. If your contract is similar to someone else's, with the only difference being specific details like dates and party names, your claim of copyright is likely to be turned down since the contract would not be original enough.

Instead of directly copying from the original template, you should try to tweak and rearrange a pre-existing contract into a new one with minor variations in standard provisions. Such a contract may be considered as a compilation and courts may grant copyright protection to it.

A contract drafted from scratch is more likely to get copyright protection than a contract based upon a pre-existing template.

If you are the author of a contract and are not bound to keep it confidential, you can use it for yourself as well as distribute it. If the contract is written by someone else and you sign it, you can use it for your own purpose without claiming any copyright. If you claim someone else's contract as your own, you'll be violating the author's copyright. However, you may not face any legal action until the original author recognizes the contract and decides to proceed against you.

Usually, all expressions are automatically covered by copyright protection. Since there is no standard rule as to what can or cannot be considered as an expression, a legal document can easily pass that test to be covered by the copyright law.

Small entrepreneurs and businesses often find it easier to use a pre-existing contract belonging to someone else rather than getting an attorney to prepare a contract for them. However, original contracts may be subject to copyright just like books, music, and a work of art. Hence, if you copy someone else's contract without his or her permission, you may be violating the copyright law. You can, however, use a pre-existing contract as a base and tweak it with your creativity. This can help you escape the likely copyright violation.

Of course, you can draft your own contract from scratch. Contracts drafted by attorneys and legal professionals generally ensure better protection in law due to their precise wording. The online contract templates that you pick may not meet all your requirements and they may not hold up in law.

In one of his articles, Judge Stanley F. Birch Jr. narrated a conversation he had with a lawyer of a leading firm, well known for preparing real estate documents. The lawyer complained that his firm's document was copied in its entirety by another law firm on which Judge Birch advised him to sue the violators. Finally, the violating firm had to compensate the lawyer's firm for using its contract.

In another case, AFLAC, an insurance company, drafted supplemental policies in a narrative style in order to make them easier for its customers. Another insurance company copied them verbatim. AFLAC sued the copying company for violation of copyright and the court granted a preliminary injunction against the defendant (perpetrator).

Thus, overhauling a contract by making the standard language and phrases more readable creates a copyright in the new language.

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