Who Owns Judith Miller’s Notes?

Can her bosses turn them over to the feds?

Note to self: Don't take notes. Click image to expand.
Note to self: Don’t take notes

New York Times reporter Judith Miller was sent to jail on Wednesday for refusing to testify about her conversations regarding outed CIA agent Valerie Plame. Time’s Matt Cooper avoided a similar fate when he agreed to testify at the 11th hour. Both the newspaper and the magazine had received subpoenas for their respective reporters’ notes. The Times said they had no such documents, and the request was dropped. Time did have access to some of Cooper’s notes, however, and eventually handed them over—against Cooper’s wishes—last week. Who owns a reporter’s notes?

It’s a murky issue, and one that hasn’t been fully resolved in court. According to the work-for-hire doctrine prescribed by the federal copyright statute, the employer who paid for the production of a work is considered its owner. In general, any notes, tools, or other materials that were created in the process of producing that work also belong to the employer. Rules for freelancers are somewhat less clear and depend on the exact terms of the contract. Some freelance contracts state explicitly that an article is being produced as a “work for hire.”

Despite the rules laid out by the federal copyright statute, many individual newspapers have their own policies on reporters’ notes. The Wall Street Journal’s parent companydeclares that “any and all information and other material” obtained by its employees on the job is its exclusive property. A New York Times spokesman says reporters’ notes are their own, by long-standing convention. Former Times reporters say that while the policy was never stated out loud, some took their records with them when they left their jobs.

The Times did violate this unspoken rule in 1969. A reporter named Earl Caldwell was asked by prosecutors to give over his notes from meetings with various leaders of the Black Panther movement. According to one of the paper’s former attorneys, the Times asserted its right of ownership so as to gain standing in the case—and prevent Caldwell from facing the heat alone.

In 1978, another Times reporter, Myron Farber, went to jail for 40 days for refusing to turn over notes related to a murder case. The newspaper was also a defendant in the case and paid a fine of several hundred thousand dollars. At least by Farber’s recollection, the paper had formally “returned” ownership of the notes to him, although the paper’s former attorney says this never happened. (This may have been a symbolic gesture, as Farber would likely have had the notes in his possession already.)

Time magazine says it handed over “all the records, notes, and e-mail trafficking going over our company system” that were related to Matt Cooper’s story. These may have included messages passed back and forth between Cooper and his editors. Miller, on the other hand, never published a story on the Plame affair, and the Times contends that it has no records of her reporting. It could be that Miller has handwritten notes from her interviews with confidential sources, even if there isn’t an electronic paper trail at her office. One could argue that according to the work-for-hire doctrine, the Times would own those notes (since there’s no contract saying it doesn’t). There’s little legal precedent, though, on the question of whether a court could compel the Times to demand the notes from Miller.

Next question?

Explainer thanks Jim Crowne of the American Intellectual Property Law Association, James Goodale of Debevoise & Plimpton, Alex Jones of Harvard University, Jane Kirtley of the University of Minnesota, and Eugene Scheiman of McCarter & English.