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If a copyright owner has authorized the use of his or her copyrighted work in the context of a legal proceeding, then that constitutes irrevocable authorization for use of the material by all parties, their lawyers, and the court involved in that proceeding, the U.S. Court of Appeals for the Second Circuit ruled Aug. 20 (Unclaimed Prop. Recovery Serv., Inc. v. Kaplan, 2d Cir., No. 12-4030, 8/20/13).
Unclaimed Property Recovery Service Inc. and its principal Bernard Gelb were named parties in a class action claim, Frankel v. Cole, No. 06-cv-0439 (CBA) (RER) (E.D.N.Y.). The plaintiffs were represented by attorney Norman Alan Kaplan of Great Neck, N.Y.
The class action was dismissed under the statute of limitations and Kaplan filed an appeal on behalf of the plaintiffs. In the meantime, Kaplan and Gelb's relationship went sour, Kaplan removed himself from the proceeding, and Gelb engaged new representation; however, Kaplan remained the attorney of record for the other named plaintiffs.
Gelb then registered with the Copyright Office his copyright interest in the first complaint and first exhibits filed in the Frankel proceeding. Gelb and Unclaimed Property then withdrew from the pending appeal. The remaining plaintiffs won the appeal and were given leave to file an amended complaint. Kaplan, acting for those other plaintiffs, filed an amended complaint and exhibits that included significant sections that were identical to the original complaint and exhibits.
Gelb then sued Kaplan, alleging copyright infringement. Kaplan moved for dismissal under Fed. R. Civ. P. 12(b)(6), for failure to state a claim for which relief is available under the law. Judge Carol Bagley Amon of the U.S. District Court for the Eastern District of New York granted the motion, after finding that Gelb had granted an irrevocable implied license to Gelb for the filing of amended complaints. Gelb appealed.
Judge Robert Allen Katzmann began his opinion by labeling Gelb's claim as “sharp litigation practices” and first held that in authorizing Kaplan to use the first complaint and exhibits to initiate the original class action claim, Gelb had granted Kaplan, and all other parties, attorneys and the court an irrevocable implied license to use the document in the proceeding. The court said:
Litigation cannot be conducted successfully unless the parties to the litigation and their attorneys are free to use documents that are part of the litigation. The parties rely on such documents as a means of establishing the nature of the dispute and the facts and legal arguments that have been put forward by each party. This is true at both the trial and appellate levels.
The court said that courts would not be able to “thoroughly and fairly adjudicate a matter” if parties were not free to submit copies of relevant documents unhindered. Futhermore, “The holder of the copyright in a document who authorizes a party to use that document in a litigation knows, or should know those inevitable consequences of the authorization.”
Distinguished was an analogy in which the owner of a baseball took his baseball home, thereby preventing the other players from finishing a game. The key difference was the ability of courts to serve their functions.
“The needs of the court prevail over the copyright holder's selfish interests, and the authorization becomes irrevocable as to the participants in the litigation for purposes of the litigation,” the court said.
In particular, the fact that the copyrighted material in this case was a legal complaint made it even more important for parties to a legal proceeding to be free to use it, the court said. “Once a complaint is filed, it becomes a legally operative document that triggers the rights, processes, and protections associated with civil litigation.”
Because it is so critical to the adjudication of legal rights of the parties involved, it is important that they can use it free of hindrance, the court said.
Furthermore, the court said that accepting Gelb's argument “would encourage sharp litigation practices, undermine the attorney-client relationship, and limit the district court's ability to manage its cases.”
Allowing Gelb to bar the other litigants from using the complaint would give him “an unreasonable measure of control over the course of the litigation” with respect to the remaining plaintiffs.
Furthermore, in cases in which the attorney could legitimately claim copyright interest in a pleading--as opposed to this situation, in which Gelb, the client, claimed authorship--the court said that it would create a conflict of interest between an attorney and his or her client, the latter who should “retain[ ] ultimate authority over the conduct of the litigation.”
It would be particularly troubling, for example, if a client dismissed his or her lawyer and then the lawyer were to be able to prohibit the client from making any further use of the pleadings that he or her had drafted, the court said.
The court declined to set forth a general rule whether legal pleadings or other documents are eligible for protection under copyright law.
The court's opinion was joined by Judge Pierre N. Leval and Judge Peter W. Hall.
Gelb was represented by Paul A. Batista of New York. Kaplan, a licensed lawyer, represented himself.
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