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A Copyright Claim Cannot Bar Use of Briefs and Pleadings in a Pending Litigation

By Joel L. Hecker

All attorneys who litigate at one time or another create new material as part of pleadings and briefs. To some extent this original work may be considered to be copyrighted material, with the copyright owned by the author/attorney. In a case of first impression, the United States Court of Appeals for the Second Circuit was called upon to rule on an appeal from the Eastern District's dismissal of such a copyright infringement claim. The case is Unclaimed Property Recovery Service, Inc. and Bernard Gelb v. Norman Alan Kaplan (Docket No. 12-4030, decided August 20, 2013).

The Circuit Court phrased the facts as follows: "this case concerns a novel attempt to use Copyright Law in furtherance of sharp litigation practices". The plaintiffs were two of the named plaintiffs in a class action and Kaplan was the class action plaintiffs' attorney. The plaintiffs alleged that Gelb wrote the Amended Class Action Complaint and compiled 305 pages of accompanying exhibits (the "First Exhibits"). The plaintiffs claimed that they owned the copyrights in these documents.

Kaplan signed and filed the First Amended Complaint and the First Exhibits on behalf of the class action plaintiffs, including UPRS and Gelb. The District Court dismissed the class action as time-barred, and Kaplan appealed on behalf of all the class plaintiffs. While the appeal was pending, Kaplan and Gelb (who is not an attorney) had a falling out and Kaplan informed Gelb that he would no longer represent Gelb and UPRS. Gelb and UPRS thereupon retained new attorneys to represent them in the class action, but Kaplan remained the attorney of record. New counsel for UPRS and Gelb then moved to withdraw the pending appeal in its entirety. However, the court only granted the motion with respect to them and the appeal proceeded without them. The Second Circuit vacated the District Court dismissal of the class action and on remand Kaplan filed a Second Amended Class Action Complaint and accompanying exhibits (the "Second Exhibits") on behalf of the class plaintiffs. The key component of this case was that significant portions of the Second Amended Complaint and Second Exhibits were identical to portions of the First Amended Complaint and First Exhibits in which Gelb and UPRS claimed copyright ownership.

Thereafter, Gelb and UPRS brought suit against Kaplan, alleging that Kaplan had infringed their copyrights when he incorporated portions of the First Amended Complaint and First Exhibits into the Second Amended Complaint and Second Exhibits. The District Court dismissed the action for failure to state a claim upon which relief can be granted, holding that they had granted Kaplan an irrevocable implied license to file the amended documents. The District Court did not reach the issue of whether they had valid copyright interests because this decision was dispositive.

The issue on appeal, as framed by the Circuit Court, was "whether the holder of a copyright in a litigation document who has authorized the party to a litigation to use the document in the litigation may withdraw the authorization after the document has already been introduced into the litigation and then claim infringement when subsequent use is made of the document in the litigation."

The Circuit Court affirmed the District Court in dismissing the case but on different grounds. It held that "such an authorization necessarily conveys, not only to the authorized party but to all present and future attorneys and to the court, an irrevocable authorization to use the document in the litigation thereafter". (The court in a footnote stated that it does not suggest that permission of the copyright holder is needed for use of a copyrighted document in litigation since the ruling only concerns the grant of authorization for use in litigation which the holder then purports to withdraw.)

The Second Circuit, in what seems to be an obvious conclusion, held that litigation could not be conducted successfully unless the parties to litigation and their attorneys are free to use documents that are a part of the litigation since the parties rely on such documents as a means of establishing the nature of dispute and the facts and legal arguments that have been put forward by each party.

In addition, the Court found that a court's ability to perform its function depends on the ability of the parties and their attorneys to submit copies of documents in contention and to serve one another with copies of such documents. Finally the Court said that courts could not thoroughly and fairly adjudicate a matter if suddenly in the midst of litigation the parties lost the right to give the court copies of documents already used in the litigation that support their argument.

Accordingly, held the Circuit Court, the copyright holder's authorization will be construed to encompass the authorization, irrevocable throughout the duration of the litigation, not only to the expressly authorized party, but to all parties to the litigation and to the court, to use the document for appropriate purposes in the conduct of the litigation.

The Circuit Court severely criticized the conduct of the plaintiffs and their questionable litigation practices, stating that they attempted to influence the class action litigation by means of this novel use of copyright law after the Circuit Court, in its earlier decision, had refused to allow them to withdraw the class action appeal on behalf of all of the named plaintiffs.

In what the Circuit Court described as particularly troubling, the plaintiffs' theory, if successful, would permit the replaced attorney to use copyright law to hamper the former client's ability to select his own new counsel - a right that is one of the foundations of our systems of justice.

Finally, the theory put forth by the plaintiffs would allow the author of a legal pleading to also bar the district court from exercising its discretion with respect to the management of the case, as courts often permit a party to amend a pleading in part but not in full. That would obviously require that an amended pleading retain a portion of the original pleading.

All in all, the Circuit Court rejected all of the plaintiffs' claims in what was a very sound and well-reasoned decision, leaving litigation attorneys wondering why this issue ever reached the Circuit Court of Appeals in the first place!


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This page contains a single entry from the blog posted on September 26, 2013 8:39 PM.

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