Codes or the I-Code Redlines, which “mingle” portions of the enacted law with “parts of the model codes not so adopted.”[1] The public domain analysis might reasonably end here. However, the Court continues its discussion below because BOCA and Veeck are at least superficially in tension with two binding Second Circuit precedents, addressed in the following two sections.
- 3. Incorporation by Reference
Despite the thrust of the cases above, the Second Circuit has rejected the argument that any legislative or regulatory reference to a copyrighted work is sufficient to place that work in the public domain. In CCC Info. Servs. Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61, 74 (2d Cir. 1994), the court stated that it was “not prepared to hold that a state’s reference to a copyrighted work as a legal standard for valuation results in loss of the copyright”). More specifically, the court rejected an argument that the public needed free access to a privately-authored compilation of used automobile valuations called the Red Book simply because state statutes and regulations required that insurance loss payments either equal the Red
- ↑ The Court notes that the mingling in the I-Code Redlines is not necessarily indiscriminate, as accurate redlining is a calculated method of comparison between two works. Whether that form of copying is protected, however, must be assessed under the rubric of fair use. See infra Section II.E.
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