By Kiran Jassal
Law students across the United States are familiar with “The Bluebook: A Uniform System of Citation,” prepared by the Harvard Law Review Association. Recently, the manual’s copyright and trademark protections have come into question. More specifically, the Engelberg Center on Innovation Law and Policy at New York University joined Public Resource to publish “Baby Blue,” a public domain version of The Bluebook. Publishers of Bluebook vehemently defend their work, claiming copyright and trademark infringement. Professor Christopher Sprigman, of NYU Law, explained Baby Blue’s open access objective in an interview with the NYU Journal of Intellectual Property and Entertainment Law. To show support for the project, Yale Law students have started a petition, stating Baby Blue “will ensure that no one…is denied access to these rules of legal citation”. The question remains, however, whether Baby Blue infringes on any of Bluebook’s publisher’s intellectual property rights.
Copyright protection applies to “original works of authorship fixed in any tangible medium of expression.” 17 U.S. Code § 102(a). Assuming a work meets these requirements, a work is automatically copyrighted in the U.S. without registration. In addition, Feist Publications v. Rural Telephone Service Co, Inc. provides that a work only requires a “modicum of creativity” to be considered “original.” Moreover, copyright law does not protect ideas, methods, or systems. 17 U.S. Code § 102(b). Lawyers at Boston’s Ropes & Gray, who represent the Harvard Law Review Association, claim that Bluebook contains “carefully curated examples, explanations and other textual materials” that are protected by copyright law. In opposition, open source advocates contend that the citation manual is not subject to copyright protection under two major theories. First, some believe that court mandated use of the citation format converts the citation method into an edict of government and therefore it is part of the public domain. Limiting publication of the citation style is problematic for prisoners filing pro se and public interest attorneys arguing on behalf of indigent parties who may not have access to the pricey manual. A strong counterpoint to this argument is that not all courts actually require Bluebook citation style. Thus, the citation method is in fact not an edict of the government. Second, open source advocates assert that since Public Resource has already released a scanned version of the 10th edition, it is within the public domain. The Engleberg Center further argues that the unprotected status of the 10th edition creates uncertainties about the copyright protection of more recent editions. In short, if the 10th edition is within the public domain and recent editions only differ trivially from what is in the public domain material, copyright to the recent editions is also compromised.
The latest turn of events in this ongoing dispute came when open-records activist Carl Malamud tweeted about the coming release of Baby Blue. Shortly thereafter, Malamud received a letter stating Bluebook’s publishers claim ownership of the word “blue” in the context of legal citation manuals and that the word “blue” in Baby Blue’s title is likely to cause “confusion, mistake, and/or deception.” Professor Sprigman responds that “[t]he idea they own the name ‘blue’ for a manual for legal citations is ridiculous.” To determine whether a suspected infringer’s use of a trademark is likely to cause confusion, courts typically look to the Ninth Circuit’s ruling in AMF, Inc. v. Sleekcraft Boats and the eight factors it sets out. Most of these factors weigh in favor of Bluebook’s publisher. For example, Baby Blue will be available to the same market Bluebook is currently serving: the legal profession. Furthermore, one could easily imagine a consumer assuming Baby Blue is a condensed version of the thick Bluebook, thereby mistaking it with the original version. Although Baby Blue’s market is definitive, it may wish to consider adopting a title that dispels any possible confusion about the new guide’s origin in order to avoid costly litigation.
In sum, the battle between Bluebook and Baby Blue continues. Bluebook publishers may enjoy copyright protection insofar as its illustrative examples; however, the system of citation as a whole cannot be protected under existing copyright law. Therefore, duplications of The Bluebook including its examples infringe on Harvard Law Review’s copyright interest, but works, like Baby Blue, that provide guidance on how to properly execute Bluebook’s system of citation through different examples and explanations do not infringe on their interests. In addition, given the similarity of the names and their identical markets, Baby Blue should consider changing its name to avoid trademark infringement. This will be an interesting dispute to follow in the coming months.
Image source can be found here.