Six Copyright Law Resources For the Non-Copyright Practitioner

In updating Copyright Litigation Handbook this year for 2014-2015 (now available for purchase here), I came across a number of copyright law resources that should be of interest to attorneys who may not be copyright specialists.  I hope you enjoy this article that I wrote for this month's Federal Lawyer magazine.

 www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 

7 Copyright Law Audio Downloads

Copyright Litigation Handbook author Ray Dowd’s acclaimed continuing legal education series on copyright law with West LegalEd Center is available for audio download on demand through West Legal Ed Center.  Follow the links below for more about each program.

Ethics and Intellectual Property: GPS For a New Media World, June 6, 2013
This interactive program pin-points ethical pitfalls lawyers need to know when tackling intellectual property issues, including those that have international dimensions. Dowd teams up with Alexandra Darraby, of the Art Law Firm, for this one hour informational to avoid missteps that can lead an attorney into areas that may open up liability for malpractice. If you work in the IP space, this dialogue of tips and how-to’s is for you.

Winning Before You Even Begin: Discovery & Pre-Trial Investigation in Copyright Litigation, February 20, 2013
This one hour CLE program features Ray Dowd, and Dunnington partner Luke McGrath. They provide you with an overview of the phase of copyright litigations from pleadings through the pre-trial order, giving practical strategic advice on how to apply the Federal Rules of Civil Procedure in the copyright context.

Copyright Law 2012: The Year in Review, January 16, 2013
In this one hour program, we look at the past year's copyright cases decided by the circuit courts of appeals. Dowd describes their significance, and what the rulings could mean for you and your clients.

Copyright Litigation: Removal and Preemption, November 28, 2012
The Situation: a client storms in wanting a lawsuit filed over a copyright dispute. What court should it be filed in? Do the claims arise under the Copyright Act or are they really state law claims? If you are not sure, should your complaint plead lots of kitchen sink state law claims? Dowd walks the practitioner through some of the tactical and strategic choices that a litigator faces in understanding the interplay between the federal and state legal regimes. 

Cease and Desist Letters in Copyright Litigation: Pitfalls for Practitioners, October 17, 2012
The situation: a client wants a quick and dirty letter and doesn’t want to pay much for it or think too hard on it. Is this a recipe for a cost-effective settlement? Or will it snowball into a professional embarrassment, with the client getting hit with a lawsuit in an inconvenient forum? Dowd, a seasoned litigator, takes us through the ethical, tactical, and strategic considerations and choices to be considered before a practitioner sends a cease-and-desist letter. 

Copyright Litigation: Preparing the Complaint- Investigation, Analysis and Documentation, July 25, 2012
Dowd takes us through the pre-flight litigation checklist designed to avoid potential pitfalls that may arise before a copyright litigation is launched or when your client is sued. This course covers how to pick the right courthouse, analyze copyright terms, statutes of limitations, and how to get an idea of whether attorneys fees may be available.  

Ethics and Copyright Litigation: What the Practitioner Needs to Know, June 19, 2012
Dowd takes us through the ethical obligations that practitioners undertake in copyright litigation cases. Aside from harsh consequences to clients, attorneys can be sanctioned personally in copyright cases. What sort of investigation is necessary to avoid Rule 11 problems filing a lawsuit and to avoid dismissal of the lawsuit? Copyright litigation has exploded as the world has become digitized. This course will assist you in understanding how to avoid potential minefields. 

www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 

Copyright Litigation Blog Turns Five

Today the Copyright Litigation Blog has been in existence for five years.  It was launched as an adjunct to my book Copyright Litigation Handbook (West 2010).  Over the years my posts have changed in character and style and I have tackled a few subects outside the purview of copyright litigation.   In 2005 I took on Bakalar v Vavra which became the first Holocaust-era art trial in a US federal court.  Accordingly my practice and blogging took on the topic of art theft.   I am now on my second trip to the Second Circuit on Bakalar v Vavra.

The Copyright Litigation Handbook has grown in depth and subect matter over time as well.  It garnered top reviews in the New York Law Journal, on Amazon and many practioners from around the country have expressed their appreciation for a book that they find practical.  I use it almost daily in my practice and update it annually.

The Copyright Litigation Blog has also broken many stories both in the blogsphere and in the mainstream press.  I am thankful to those who have quoted me and have appreciated those journalists who have consulted me.  Being bombarded with tough questions is helpful to me in keeping up with what is going on.

I have also received speaking invitations as a result of blogging as well as invitations to write articles.  I have made numerous blogging friendships and good acquaintances.  A few scuffles over time, but heck life would be boring if we all agreed all the time.  I hope no one holds a grudge.

People always ask whether I have gotten clients through blogging.  The answer is yes.  It is a powerful medium for the new generation and it has added significantly to my firm's bottom line.  I have gotten referrals from both local and foreign attorneys, been hired as local counsel, been hired to consult or litigate in faraway jurisdictions, and been approached directly by good clients needing quality service.  

When I started blogging I knew that this would be a powerful medium.  I am persuaded that it is growing in power in a way that can be felt almost on a monthly basis.  It has been a great experience to be involved and as each post goes out, I can only imagine who it will touch and who will be affected by it.  They say that only a tiny percentage of those who read give feedback, I suppose that this is a good thing since the feedback has been overwhelming and overwhelmingly positive.

I have posted rankings showing the Copyright Litigation Blog to be in the top ranked IP blogs by traffic and relevance.  I don't try to keep up with breaking news all of the time and my blogging tends to be seasonal.  When I am updating my book, I blog a lot. When I am really busy with work or just plain lazy, I don't.  The guilt-free and subjective formula seems to have worked out just fine.

If you Google or Bing "copyright litigation" the Copyright Litigation Blog is the number one result.   I hope that is in part a reflection of quality and relevance but I know that it also is a reflection of quantity and perseverance, which are not necessarily the best characteristics to showcase on the internet.  Still I am thankful for the standing.  In a competitive profession, it is nice to be number one, however fleetingly and whether or not it is deserved.   A change in the Google algorithm and it could all be dust!

I am looking forward to the next year and excited about this year's update of Copyright Litigation Handbook.   I visited the Copyright Office in Washington DC and am looking closely at the new world of copyright registration online.    I hope that you will continue to Like, Retweet and otherwise refer my posts to those who may be interested.   Feel free to follow me on Twitter @raydowd.  I hope to keep you informed, entertained and occasionally outraged in the years to come.

Happy Holidays From Ray Dowd

Attending the Federal Bar Association annual conference in Hawaii this December, I spotted Santa.... so much for all of those reindeer and North Pole myths!

Wishing everyone healthy and happy holidays and a prosperous 2011.   Ray

Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

A Thief Cannot Pass Good Title: Research Tips on West Reference Attorney Blog

How does one research a Nazi art looting case?

Coverage of the Bakalar v. Vavra case and interview with me in the wake of my victory for the heirs of Fritz Grunbaum at the Second Circuit at the West Reference Attorney Blog under the heading "A Thief Cannot Pass Good Title" here.

I met a number of West Reference Attorneys when I took a tour of the West HQ and printing plant in Eagan, MN.  They are a great group, check out their blog for the latest topics in legal research/news.

 More on Fritz Grunbaum and the theft of artworks from him when he was in the Dachau concentration camp here.

For a translation of the Second Circuit's Bakalar v. Vavra decision into German, go here.


Purchase Copyright Litigation Handbook from West here  

Copyright Law: Attorneys Fees To A Prevailing Party in an Infringement Action

Although the Copyright Act, 17 USC 505 permits judges in their discetion to allow costs to a prevailing party, and as part of costs to allow reasonable attorneys fees, there is a whole body of developing case law showing the minefields and hoops firms representing prevailing parties must jump through to get paid, and the many ways judges may exercise their discretion to deny attorneys fees.

Add Corbis Corp. v. Starr, --- F. Supp.2d ---, 2010 WL 2572049 (N.D. Ohio June 25, 2010) to the literature.

Judge Carr notes that the attorneys billed time in quarter-hour increments, rather than tenth of an hour increments, which he believes warrants a downward adjustment.  He objects to the attorneys billing in block hour lumps and not describing their tasks.  And he reviews the law of privilege, and finds that neither the work product privilege nor the attorney client privilege cover legal bills.   He permits the firm to resubmit their bills in a redacted form to protect any purportedly privileged information.

In Chapter 18:  Costs and Attorneys Fees of my Copyright Litigation Handbook, I cover the growing case law governing applications for attorneys fees and the various approaches taken in different Circuits.  Getting paid is an uncertain business and the discretion of a judge to police over-reaching is considerable.  Making a record showing exercise of "billing judgment" may be unfamiliar, but taking the time to trim bills to disallow efforts that ought not in fairness be charged to an adversary before submitting them to a court might save a painful review.  On the other hand, there is case law supporting the concept that not every litigation strategy need be successful to be reasonable, particularly where an adversary is misbehaving.

 Purchase Copyright Litigation Handbook from West here  

Law Bloggers: West Publishing's List of Authors Who Blog

West Publishing has a program of "Key Authors" and has published a list of those who blog here (reproduced below).  The Volokh Conspiracy is probably the most famous with an Alexa ranking for today of just below 35,000.  I suspect the list is far from complete.

1. Stephen Bainbridge

ProfessorBainbridge.com
http://www.professorbainbridge.com/

2. Gary Becker
Richard Posner
The Becker-Posner Blog
http://www.becker-posner-blog.com/index.html

3.  Gerry W. Beyer
Wills, Trusts, and Estates Professor Blog
(Part of Law Professors Blog Network)
http://lawprofessors.typepad.com/trusts_estates_prof/

4. William H. Burgess III
Florida Sentencing
A discussion of contemporary law, policy, and practice in Florida criminal sentencing
http://floridasentencing.blogspot.com/

5. Paul L. Caron
TaxProf Blog (A Member of the Law Professor Blogs Network)
http://taxprof.typepad.com/taxprof_blog/

6. John A. Day
Day on Torts Law Blog
http://www.dayontorts.com/

7. Raymond J. Dowd
Copyright Litigation Blog
http://copyrightlitigation.blogspot.com/

8.  Jon L. Gelman
Workers' Compensation
Helpful information about current developments in workers' compensation matters
http://workers-compensation.blogspot.com/

9.  Alan Gutterman
Gutterman Law & Business
The Business Counselor Blog
http://www.businesscounselorblog.com/
The Emerging Companies Blog
http://www.emergingcompaniesblog.com/

10. Charles T. Hall
Social Security News
Your source for news affecting the U.S. Social Security Administration copyright
http://socsecnews.blogspot.com/

11.  John Wesley Hall Jr.
Law of Criminal Defense.com
Website supporting Professional Responsibility in Criminal Defense Practice (2005)
http://www.lawofcriminaldefense.com/blog/

12.  Phyllis Weiss Haserot
Practice Development Counsel's Next Generation, Next Destination
http://www.nextgeneration-nextdestination.com/

13.  Paul Lesti
Lesti Structured Settlements
http://www.lestistructuredsettlement.typepad.com/

14.  Raymond Nimmer
Contemporary Intellectual Property, Licensing, and Information Law
http://www.ipinfoblog.com/

15.  Larry Ribstein
Ideoblog
A blog about ideas. Ideas are not beliefs or opinions.
http://www.ideoblog.org/

16.  Patricia E. Salkin
Law of the Land
A blog on land use law and zoning
http://lawoftheland.albanylaw.edu/

17.  Bruce Stern
Traumatic Brain Injury Law Blog
http://www.braininjurylawblog.com/

18.  Eugene Volokh
The Volokh Conspiracy
http://volokh.com/

19.  Dennis Wall
Insurance Claims and Bad Faith Law Blog
http://www.insuranceclaimsbadfaith.typepad.com/
Insurance Claims and Issues
http://www.insuranceclaimsissues.typepad.com/

 Purchase Copyright Litigation Handbook from West here  

Legal Materials Product Review: Copyright Litigation Handbook on Westlaw Next and Kindle

West publishing is rolling out Westlaw Next, a whole new way of accessing and working with content accessed through Westlaw.  Searches are a lot more intuitive, content is found through Google-type searches and can be saved to folders.   Once you've saved content to your research folders, you don't incur additional charges for accessing that content.

The Copyright Litigation Handbook was first published in 2006 and was instantly hailed as "indispensable" by the New York Law Journal.   It is updated annually and designed to be a handy volume to keep for frequent reference at deskside for the busy litigator looking for practical solutions and a quick reference to the Copyright Act, the Federal Rules of Civil Procedure, and to the cases interpreting their intersection in federal litigation practice.

Copyright Litigation Handbook was subsequently added to  the Westlaw database.  But anyone accessing Copyright Litigation Handbook on standard Westlaw had to know that the database is COPYLITIG in order to access it.   Now, if the content is relevant, it should pop up in easily accessible secondary sources pages that are better organized and easier to get at.  

If your West sales reps haven't given you the passwords to Westlaw NEXT, make sure to get the access keys, this is a tremendous time-saving product that makes it much easier to cut and paste relevant content.  A look at what the product looks like:

As you can see from the above, I went into Copyright Litigation Handbook and checked out what it had to say about default judgments.  The answers are clear and easy to read with your search remaining in the Google-type bar above.

You can see that once you are in the content, you can save to your research folder, add a note, highlight or copy with reference.   Again, much quicker and intuitive than Westlaw.  Saved folders are stored like Outlook and you can go back and view them in a really clear and intuitive manner.  In Westlaw, the research trails were annoying and confusing, I just always redid the research.   Your notes are searchable (I didn't test this feature).

Here you have a drop-down menu making it easy to email, print, download or send to your Amazon Kindle.  The Kindle format is nice, easy on the eyes book-style format.

Here you can see that viewing the outline of Copyright Litigation Handbook is again easier on the eyes.  As the text expands out, it is easier to follow where it came from and to follow it back.

Switching to full screen mode makes the text more readable.

You can add frequently-consulted texts like Copyright Litigation Handbook to your Favorites folder.

Reviews for Copyright Litigation Handbook on Amazon

Thanks for the wonderful reviews of Copyright Litigation Handbook on Amazon here.

Most Helpful Customer Reviews

5.0 out of 5 stars A great resource, October 8, 2009

By Joseph Petersen - See all my reviews
Raymond J. Dowd, an experienced trial lawyer and partner with Dunnington, Bartholow & Miller LLP, has written a long-overdue work. His Copyright Litigation Handbook provides a straightforward overview and is chockablock with insightful and practical information. Mr. Dowd is liberal in his inclusion of excerpts from relevant statutes, including not only the Copyright Act, but also the Federal Rules of Civil Procedure and the Federal Rules of Evidence, and his book provides numerous sample forms. Mr. Dowd's Copyright Litigation Handbook will long be a valuable resource for copyright litigators; I am confident that it will be squeezed into trial bags for years to come. Joseph Petersen, Kilpatrick Stockton LLP

Help other customers find the most helpful reviews

5.0 out of 5 stars Copyright Litigation Handbook, August 26, 2009

By Corey Field (Los Angeles, CA) - See all my reviews
I have read this entire book. It is extraordinary for more reasons than I have space here to enumerate. It is a book about copyright law for litigators, and it is at the same time a book about litigation for copyright lawyers. It is written for a broad audience of attorneys whose practice may touch upon copyright law, but it is also a great practice overview for an experienced copyright lawyer. It is organized in a logical way proceeding from case evaluation through trial. Throughout, it offers nuggets of advice that are extremely valuable - the sort of experienced advice that makes a huge difference in the development of one's legal abilities.

Corey Field

Ballard Spahr Andrews & Ingersoll, LLP

Los Angeles, CA Help other customers find the most helpful reviews

5.0 out of 5 stars An indispensable and unique copyright guide for the litigator, August 26, 2009

By David J. Wolfsohn (Philadelphia, PA) - See all my reviews
Until Raymond Dowd wrote this book, there simply was no litigation-friendly guide to copyright litigation. Thank goodness Mr. Dowd chose to devote the equivalent of several years of time and effort to write this book, and to update it with this 2009 edition. This is the book that both occasional dabblers in copyright should go to first (which I wish I had when I started out), as well as now-experienced copyright litigators like me. It is the book I go to first when drafting a complaint (or even when deciding whether to sue), and consult when beginning to prepare for trial. Everything is litigation oriented, so one doesn't need to wade through abstract theorizing to get a sense for how you can use the current state of the case law to your client's advantage. The forms for a complaint and other litigation papers are particularly useful. And the ideas for motions in limine are priceless, and as far as I know, a unique feature of this book. --David Wolfsohn, Woodcock Washburn LLP.

Jeff Koons: Copyright Infringement and Fair Use (Ch 8, 12)

On October 26, 2006 the Second Circuit decided the case Blanch v. Koons, --- F.3d ---, 2006 WL 30406666 (2d Cir. 2006). Professor Patry's discussion of the case is here. The Second Circuit affirmed the district court's grant of a summary judgment motion in favor of an artist, Jeff Koons, who had used a portion of a photograph from a fashion magazine in a large collage that he sold to the Guggenheim Museum for $2 million. Plaintiff complained of copyright infringement. Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the affirmative defense of "fair use." The "fair use doctrine" has been codified at 17 U.S.C. Section 107.

Fair Use Doctrine. 17 U.S.C. Section 107 provides "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (emphasis supplied).

Applicable Rule of Procedure. Rule 56 of the Federal Rules of Civil Procedure (the "FRCP") governs motions for summary judgment. Rule 56(b) provides that a defendant may "at any time" move with or without supporting affidavits with or without supporting affidavits for summary judgment. Advisory Committee Notes to the FRCP amendments made in 1946 show that the rule was permitted to permit a defendant to move immediately, without waiting to assert an answer. The Rule 56 language that was deleted in 1946 required a defendant to wait until after it served an answer.

In Blanch v. Koons, the Second Circuit noted that although the "fair use" defense is a mixed question of law and fact, it has on a number of occasions resolved fair use determinations at the summary judgment stage where there are no genuine issues of material fact.

Practice Tip for Lawyers: Fair use cases require a careful analysis of the four factors enumerated in 17 U.S.C. Section 107. Spend some time reading the cases cited by the Second Circuit. As you may note, much of the material to be submitted to a court to analyze in support of or against a fair use defense is pretty much available at the beginning of a litigation. Courts take artists "reasons" for taking or using a work extremely seriously, along with discussions of actual and potential markets. Much of the rest is essentially eyeballing the work and forming some fairly subjective opinions. The Second Circuit quoted the reason WHY Koons used the image at length including the following "By using an existing image, I also ensure a certain authenticity or veracity that enhances my commentary - it is the difference between quoting and paraphrasing - and ensure that the viewer will understand what I am referring to." The bolded language is mine, and presents a powerful argument for copying someone else's work of visual art (or even music) that will be persuasive to judges. At the outset of a case turning on fair use, consider skipping discovery and simply putting together thoughtful and detailed affidavits to move under FRCP 56. As in Blanch v. Koons, you may just get rid of the case.

To purchase the Copyright Litigation Handbook (West 2006), please go here and use OFFER NUMBER 523571.

Constitutional Challenges to Copyright: A Litigation Explosion

Constitutional challenges to copyright have been rare over the 200-plus year history of copyright legislation in the United States. According to the panelists at yesterday's Columbia Law School symposium "Constitutional Challenges to Copyright" - the challenges to the constitutionality of copyright that started 10 years ago - are not likely to abate.

I recently received an inquiry from a potential client. A couple of eighty-something grandparents in Texas were getting sued because their sixteen-year old grand-daughter had apparently downloaded music without their knowledge. Their internet account activity had been subpoenaed without their knowledge in the Southern District of New York. The amounts involved put them in fear of losing their house.

This was not the first time my office received a call like this and I'm sure it won't be the last. But the civil and criminal penalties accompanying copyright infringement, together with a deep clash in cultural values caused by technological and economic change ensure that the constitutionality of copyright protections will continue to be a hot-button topic. The Columbia symposium, organized by Professor June Besek - provided a valuable resume of where we've been and a roadmap of where the future is likely to go.

The fiercest debate arose over the "public domain" - with Professor Chris Sprigman of the University of Virginia facing heat from publishing industry skeptics from the audience over his contention that the "public domain" had a constitutional grounding. Sprigman said he believed that the Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) was one of the most important decisions for copyright, given its affirmation of the public domain and the right to use public domain works without attribution. When Sprigman advanced an "implied" public domain theory created in 1789 when the first Copyright Act was adopted, the audience was practically shouting. Heady stuff!

In Chapter 12 of Copyright Litigation Handbook, I wrote "Public domain works are works that may be used without payment, without attribution, and without permission." I cited Dastar, a unanimous decision written by Justice Scalia for that proposition. I recall that my editor asked me why I was citing a Lanham Act case for a basic copyright proposition. I responded that it was the only place I could find it! The Supreme Court's statement of the public domain is ethically horrifying to academics, because it "legalizes" plagiarism. But it should be studied carefully, because at least one panelist used "plagiarism" as a synonym for "copyright infringement". I can use a public domain translation of Aristotle as my own quite legally. My failure to attribute the quote, however, would correctly subject me to the academic and ethical charge of plagiarism.

I suspect that the theoretical underpinnings of the public domain may be grounded in the Eleventh Amendment and the basic common law proposition that you are free to copy anything that the law does not forbid you to copy or to communicate in any ways not prohibited by law. Poetry was near to the hearts of our Founding Fathers and I doubt they expected that a poet would expect compensation for a poetry reading, which was a popular pastime. Today's rappers have a different set of expectations.

To purchase the Copyright Litigation Handbook (West 2006), please go here and use OFFER NUMBER 523571.

New York State Bar Association IP Law Section Book Signing

The New York State Bar Association IP Law Section has invited me to its annual meeting at the Sagamore Hotel on Lake George to do a book signing. My publisher, West has sponsored the coffee break, and I'll be signing books and meeting and greeting there. You can find the meeting program, which runs from October 12-15 here. Auspiciously, my very first book signing is scheduled on Friday the 13th. West will be raffling off an Ipod to celebrate the occasion, so make sure to stop by and say hello.

The IP Law Section has over 2,000 members and is one of the fastest-growing sectors of the New York State Bar Association, so this is quite an honor. The program looks diverse and stimulating, so I look forward to picking up my 9.5 CLE credits while enjoying the foliage.

I plan to visit other bar associations and trade organizations to give CLE programs and member education programs. I welcome invitations to speak or to participate in a panel.

If you can't make the book signing, you can still order the Copyright Litigation Handbook directly from West here. Please use OFFER NUMBER 523571.