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January 08, 2009

Uncle Sam owns the fruits of a prisoner's labor

Robert James Walton is a federal prisoner and a talented man. His work belongs to Uncle Sam by virtue of his incarceration, the Court of Appeals for the Federal Circuit now says. Turns out, Walton is not just a prisoner; according to the appellate court, he is "in the service" of the United States.

Too bad for Walton.

The Vietnam veteran, convicted bank robber and well-trained desktop publishing expert designed a 2001 desk-blotter calendar, as well as several other calendars, while imprisoned at Leavenworth. Federal Prison Industries then distributed millions of copies of the calendars to Government Services Administration warehouses.

Now serving out his 210-month sentence in Colorado, Walton sued on the ground that the government had stolen his intellectual property. The government retorted that he didn't own the copyright. He got a lawyer, and obtained the copyright. Nonetheless, last January, the Court of Federal Claims ruled against him. Copyright infringement suits can't succeed if the work was prepared "in the employment or service" of the federal government

Walton and his attorney, Covington & Burling's Scott C. Weidenfeller, appealed. The question is tricky, because prisoners have already been held not to be in the employ of the government. So it all boils down to the notion of service. Perhaps the appellate panel foresaw a swarm of other prisoner intellectual property claims arising if Walton succeded; whatever the complete reasons, the panel saw fit to reason:

"One may have a “service” relationship with the federal government that does not constitute an “employment” relationship...Walton’s preparation of the calendar was done “while in the service of the United States.” He developed and made the calendar at the direction of and with computers provided by the United States, and was supervised by United States employees in that work. He performed the work at a government facility, and the government paid him modest compensation for his efforts."


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"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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