Authorization for Publication and Advice

on Copyright Protection for a Manuscript

Prepared by a Department of Justice Employee

The key inquiry in determining the application of 28 C.F.R. § 45.73512, which governs publication o f a manuscript by a Department of Justice employee, is whether the manuscript was 

prepared as a part or the employee’s official duties, is devoted substantially to the responsibilities and operations of the Department, or is otherwise dependent on information obtained 

as a result o f government employment.

The m anuscript at issue, which was prepared by an employee of the Bureau of Prisons, is 

sufficiently related to the employee’s official duties as to prohibit remuneration for publication under 28 C.F.R. § 45.735-12(a). The Deputy Attorney General may authorize publication without remuneration under 28 C.F.R. § 45.735-12(c) if it is determined that publication 

is in the public interest.

Although a decision on whether the m anuscript in question may be copyrighted can only be made 

by the Register o f Copyrights, it appears doubtful that the Register would grant copyright 

protection. The manuscript would probably be viewed as a “work of the United States 

Governm ent,” because the work was prepared by a government employee as part of his 

official duties. Such works may not be copyrighted under the Copyright Act, 17 U.S.C. § 105.

January 24, 1983

M e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l

This responds to your request for our advice regarding authorization for 

publication and copyright protection of a manuscript setting forth the results of 

a study on aggression in federal prisons prepared by Mr. A, an employee of the 

Bureau of Prisons. As we understand the facts surrounding the preparation of 

this manuscript, we believe that authorization for publication, without a fee, 

should be granted based on the recommendation by the Director of the Bureau 

that publication of the study is in the public interest. The copyright issue raises 

more difficult questions, because a substantial portion of the manuscript was 

prepared by Government employees during the course of their official duties. 

Based on the limited facts presented to us, we doubt whether Mr. A’s manuscript may be copyrighted, but ultimately that determination must be made by 

the Register of Copyrights at the Library of Congress.

I. Facts

The manuscript which Mr. A seeks to publish and copyright records the 

results of a study, developed and analyzed primarily by three Bureau of Prisons

16
employees over a period of several years. The study was initiated in response to 

a perceived need within the Bureau for a better understanding of, and greater 

insight into, an identified aspect of inmate behavior in the Federal Prison 

System. The manuscript runs approximately 400 pages in length, and includes 

extensive tables, models, graphs, and sample questionnaires, as well as narrative analyses and a twelve-page Executive Summary of the longer manuscript 

prepared for a 1980 Warden’s Conference. The introduction to the manuscript 

sets forth the goals of the Federal Prison System Project, under which the data 

was gathered and analyzed, as “providing useful information to administrators” 

and “producing data that will interest students of the Criminal Justice System.” 

This perception was stimulated by, inter alia, a 1976 study of assaults at the 

Lewisberg Penitentiary, which showed that 5 out of 8 homicides occurring 

within the 26-month period studied were related to a particular aspect of 

inmate behavior, and a 1977 finding that such behavior is the primary motive 

for prison homicides and leads to other especially violent acts. Mr. A stated that 

because of the increasingly apparent lack of, and need for, comparative information regarding these findings, the Federal Prison System’s Office of Research recommended the establishment of a national project to establish rates 

of this behavior.

The study was conducted and the manuscript prepared over a period of 

approximately two years by Mr. A and his co-author, Mr. B, another employee 

at the Bureau. Both Mr. A and Mr. B prepared approximately one half of the 

manuscript during the course of their official duties at the Bureau and the 

remaining half on their own time. The authors were assisted in large part by Mr. 

C, a Bureau of Prisons employee, who made significant contributions to the 

development of survey instruments and computer data files and also performed 

archival data analyses to demonstrate sample representativeness for the study. 

Mr. C’s contributions were all made during the course of his official duties. In 

addition to the three primary contributors, the project received support services 

from many other people, both Government and non-Govemment employees.1 

As far as we have been able to determine, the study was funded from the 

Bureau of Prisons general operating budget, and was supported in large measure 

by the Bureau’s staff in the course of their official duties.

II. Publication

Publication of Mr. A’s manuscript is governed by 28 C.F.R. § 45.73512. 

Subsection (a) of this provision prohibits Department employees from accepting fees from outside sources for publications that were prepared as “a part of 

the official duties of the employee.”2 Subsection (b) prohibits receipt of

1 For example, we understand that the person who interviewed the inmates for the study was hired from 

outside the Government and paid with Bureau of Prisons funds for his services.

2 28 C.F.R. § 45.735-12(a) provides:

(a) No employee shall accept a fee from an outside source on account of a public appearance, 

speech, lecture, or publication if the public appearance or the preparation of the speech, lecture, 

or publication was a part of the official duties of the employee.

17
compensation or anything of monetary value for . . . writing . . . 

the subject matter of which is devoted substantially to the responsibilities, programs or operations of the Department, or 

which draws substantially on official data or ideas which have 

not become part of the body of public information.

Subsection (c) prohibits Department employees from engaging in writing

whether with or without compensation . . . that is dependent on 

information obtained as a result o f ... Government employment 

except when that information has been made available to the 

general public or when the Deputy Attorney General gives 

written authorization for the use of nonpublic information on the 

basis that the use is in the public interest.

The key inquiry in determining the applicability of the prohibitions contained 

in these provisions to Mr. A’s manuscript is whether the manuscript was 

prepared as a part of Mr. A’s official duties at the Bureau of Prisons, is devoted 

substantially to the responsibilities and operations of the Department, or is 

otherwise dependent on information obtained as a result of his Government 

employment.3

The Department generally has interpreted the prohibitions contained in 

§ 45.735-12 rigorously to preclude any substantial potential for conflicts of 

interest and the resulting impairment of public confidence in the performance 

of its federal law enforcement duties. Notwithstanding Mr. A’s intention to 

publish the manuscript without compensation, we believe it is clear that Mr. 

A’s manuscript is within the category of documents to which the provisions 

contained in § 45.73512 apply. The factors which lead us to this conclusion 

are: (1) the manuscript is styled as a Final Report to the Director; (2) the subject 

matter of the study is devoted substantially to work carried on by the Bureau of 

Prisons’ Office of Research; (3) the study upon which the manuscript is based 

was developed and executed largely on “on duty” time by Department employees; and (4) the study was prepared in response to an official request of the 

Director of the Bureau of Prisons, although it seems clear that the Director did 

not request a report of the detail and magnitude of that prepared by Mr. A.4

Accordingly, we believe that the manuscript is sufficiently related to Mr. A’s 

official duties at the Bureau of Prisons as to prohibit his remuneration for its 

publication. The question of whether publication of the manuscript should be 

permitted at all is a question of judgment which we believe can best be

3 A secondary inquiry is w hether the data contained in Mr. A ’s study has “become part o f the body o f public 

inform ation.” If the inform ation already has been made available to the general public, without regard to the 

question o f com pensation, subsection (c) does not require the written authorization of the Deputy Attorney 

General for publication. If the preparation of the work was a part of the official duties of employees or if the 

subject m atter o f the work is “devoted substantially” to the responsibilities or operations of the Department, 

however, subsections (a) and (b) preclude receipt o f compensation from outside sources, even if the Deputy 

Attorney General has authorized publication o r the information has otherwise been made public.

4 In fact, M r. A prepared a preliminary thirteen-page Executive Summary for the Director which outlined 

the tentative results of the study and projected future areas of inquiry.

18
exercised by the Bureau of Prisons. Even assuming the information contained 

in the study is not public information at this time, we see no reason why the 

Deputy Attorney General should deny the authorization required by subsection 

(c) for publication if the Director of the Bureau has, by his request for authorization on Mr. A’s behalf, indicated his interest in publication of the study’s 

results. Absent a concern elsewhere in the Department that such official data be 

kept confidential, we would defer to the judgment of the Division or Office 

which developed the data that its publication will not harm the Government’s 

activities.

III. Copyright Protection

The determination whether Mr. A’s manuscript may receive copyright protection turns on whether the manuscript properly may be described as a “work 

of the United States Government.” Section 105 of the Copyright Act, 17 U.S.C. 

§ 105, prohibits the granting of copyright protection to “any work of the United 

States Government,” defined in § 101 as “a work prepared by an officer or 

employee of the United States Government as part of that person’s official 

duties.” Thus, all work of the United States Government is intended to be in the 

public domain. The Historical Notes to § 105 explain that “under this definition, a Government official or employee would not be prevented from securing 

copyright in a work written at that person’s own volition and outside his or her 

duties, even though the subject matter involves the Government work or 

professional field of the official or employee.”5

5 See H.R. Rep. No. 1476, 94th Cong , 2d Sess 58 (1976). The Notes go on to address:

[t]he more difficult and far-reaching problem whether the definition should be broadened to 

prohibit copyright in works prepared under U.S. Government contract or grant As the bill is 

written, the Government agency concerned could determine in each case whether to allow an 

independent contractor or grantee, to secure copyright in works prepared in whole or in part with 

the use of Government funds. The argument that has been made against allowing copyright in 

this situation is that the public should not be required to pay a “double subsidy," and that it is 

inconsistent to prohibit copyright in works by Government employees while permitting private 

copyrights in a growing body of works created by persons who are paid with Government funds.

Those arguing in favor o f potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation, and the basically different 

policy considerations applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.

The bill deliberately avoids making any sort of outright, unqualified prohibition against 

copyright in works prepared under G overnment contract or grant There may well be cases where 

it would be in the public interest to deny copyright in the writings generated by Government 

research contracts and the like; it can be assumed that, where a Government agency commissions 

a work for its own use merely as an alternative to having one of its own employees prepare the 

work, the right to secure a private copyright would be withheld However, there are almost 

certainly many other cases where the denial of copyright protection would be unfair or would 

hamper the production and publication of important works. W here, under the particular circum ­

stances, Congress or the agency involved finds that the need to have a work freely available 

outweighs the need of the private author to secure copyright, the problem can be dealt with by 

specific legislation, agency regulations, or contractual restrictions 

Id. at 59 See generally Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981), cert denied, 455 U.S. 948 (1982). This 

provision would not apply to Mr. A’s circumstances because he is a Government employee, not a contractor.

19
Using these guidelines, we believe that Mr. A’s manuscript falls within the 

parameters of a “work of the United States Government” and therefore is not 

entitled to copyright protection. Although the magnitude of the manuscript is 

arguably a reflection of Mr. A’s personal estimation of the significance of the 

study for the Federal Prison System, some portion of which undoubtedly was 

prepared during off-duty hours, the facts that the study was initiated in response to an official request or recommendation from within the Bureau of 

Prisons’ Office of Research, the analytical tools used in the study were developed and implemented substantially by Bureau employees during on duty 

hours, and the study was presented as a “Final Report to the Director” setting 

forth the results of the Federal Prison System’s study are, in our judgment, 

sufficient to render the manuscript an “official” document for the purposes of 

the Copyright Act. Thus, even though the study may have far exceeded the 

scope of the official request for such data — indeed, it is precisely because the 

work is so substantial that a significant risk of pirating exists — to permit the 

author(s) to claim copyright protection for work which was substantially 

supported and funded by the federal government through the work of its 

employees would significantly undermine the statutory scheme and legislative 

intent of § 105.

Judicial interpretations of § 105, and its predecessor provisions in the 1909 

Copyright Act, support this conclusion.6 In Public Affairs Associates, Inc. v. 

Rickover, 268 F. Supp. 444 (D.D.C. 1967), the court held that two speeches 

prepared and delivered by Vice Admiral Rickover on his own private time 

could properly be the subject of copyright protection, even though the subject 

of one of the speeches related to the Vice Admiral’s official duties as an 

employee of the United States Navy and the Atomic Energy Commission. The 

court found significant the following facts: (1) neither Admiral Rickover nor 

his Government employers believed that the speeches fell within Rickover’s 

official duties, nor was there any evidence that he was directed to make the 

speeches by his superiors; (2) delivery of the speeches was precipitated by 

invitations extended directly to Rickover in his private capacity by two private 

organizations; (3) the speeches were drafted in Rickover’s home, and were 

delivered on his own time; and (4) the speech the subject matter of which 

related to Rickover’s official duties

was a non-technical address to a non-technical audience. The 

speech was subjective in nature and was not consistent with 

Atomic Energy Commission policy .... All information concerning Shippingport [Power Station] was unclassified. Prior to 

the speech there had been full dissemination of the technical 

information derived from Shippingport by the Technical Information Division of the Atomic Energy Commission.

Id. at 453. In short, the only connection the court found between Admiral

6 See 17 U.S.C. § 8 (1970), which provided in pertinent part that “[n]o copyright shall su b sist. . in any 

publication o f the United States G overnm ent/’

20
Rickover’s speeches and the United States Government was in the “purely 

mechanical operations” of his administrative assistant, who “typ[ed] a final 

draft for duplication . . . on Naval facilities.” This connection was held to be 

insufficient to render the speeches “works of the United States Government.” 

Id. at 449.

Earlier consideration of the 1909 Act’s provision excepting works of the 

United States Government from copyright protection is found in United States

v. First Trust Company o f Saint Paul, 251 F.2d 686 (8th Cir. 1958). There the 

court examined the rough notes prepared by Captain Clark during the Lewis 

and Clark Expedition in 1803-04. Based upon the fact that the materials 

contained, in addition to data that President Jefferson requested the Expedition 

to gather in its official record, “a great many personal and private notations, 

including information about the receipt of newspapers or letters, details of 

personal illnesses, social engagements, and other such items as might not be 

expected to be found in notes of an official character or in an official record,” 

the court affirmed the district court’s conclusion “that the notes were the 

private and personal writings of Captain Clark, unofficial in character and 

therefore not the work of a Government representative engaged in the performance of his official duties.” Id. at 690.

Judgments about copyright protection rest ultimately with the Register of 

Copyrights. This Office therefore is necessarily tentative in making such 

judgments, particularly when we do not have at our disposal all facts relevant to 

the determination. Accordingly, we recommend that you advise Mr. A to seek 

further guidance on this matter from the Copyright Office directly.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office of Legal Counsel

21