Professor Nimmer once identified the “weakest infringement claims of all time” as those involving attempts by copyright holders to prevent their copyrighted work from being used as evidence against them in court. “It seems inconceivable,” Professor Nimmer wrote, “that any court would hold such reproduction to constitute infringement either by the government or by the individual parties responsible for offering the work in evidence.” But this scholarly warning has not prevented many plaintiffs from trying — and failing — to use copyright law to keep evidence out of civil and criminal trials, or to punish the parties who introduced the evidence.
Denison v. Illinois Discipline Commission
The most recent example is Denison v. Illinois Attorney Registration and Discipline Commission. Joanne Denison is an attorney in Illinois who took issue with certain decisions by a probate court judge in a guardianship case. Denison began blogging about what she viewed as the “garden variety theft, embezzlement, malpractice and malfeasance” in the Illinois state courts, including specific charges of corruption against the judge.
These public accusations caused the Illinois Attorney Registration and Discipline Commission (IARDC), an arm of the Illinois Supreme Court, to initiate disciplinary proceedings against Denison. IARDC made copies of the blog for use in these proceedings and also quoted the blog at length in its disciplinary complaint. According to Denison, this copying was improper and, in February of this year, she brought suit against IARDC in the Northern District of Illinois, alleging copyright infringement.
Earlier this month, Judge Amy St. Eve dismissed the case. The Court noted that the legislative history of the 1976 Copyright Act indicated that “reproduction of a work in legislative and judicial proceedings or reports” was an example of fair use. Here, the Court found, IARDC’s copying of the blog was for an entirely different purpose (disciplinary proceedings) from that for which the blog was created (political speech). In other words, it was a transformative use, and therefore a fair one. The opinion is available here.
List of Cases Addressing the Fair Use of Copyrighted Works In Judicial Proceedings
In case you were curious, here is a list of cases addressing the fair use of copyrighted works in judicial proceedings, including those cited by the parties in the Denison matter and by Professor Nimmer:
- Bond v. Blum: The Fourth Circuit held that the author of a manuscript containing a murder confession could not use copyright law to prevent the introduction of that manuscript during a custody hearing.
- Carpenter v. Superior Court: The California Court of Appeals ruled that the plaintiff in a personal injury action could gain access to certain standardized neurological tests over an objection that the tests were protected by, inter alia, copyright law.
- Evans v. Lerch: The Supreme Court of New York held that the plaintiff in a medical malpractice action could not use copyright law as an excuse to avoid producing an unpublished manuscript.
- Grundberg v. Upjohn: The District of Utah, in a product liability case, rejected the defendant’s attempt to register a copyright in its document production in order to restrict the plaintiff’s use and public dissemination of those documents.
- Healthcare Advocates, Inc. v. Harding: The Eastern District of Pennsylvania held that it was fair use for a defendant in a civil case to make copies of the plaintiff’s publicly archived website to use as evidence.
- Hollander v. Steinberg. The Second Circuit affirmed dismissal of a copyright case by an attorney, where opposing counsel in an earlier civil action had appended that attorney’s blog entries to a motion.
- Jartech, Inc. v. Clancy: The Ninth Circuit held that the secret recording of a pornographic film screening by an agent of the city of Santa Ana, for use in public nuisance proceedings against the movie theater, was fair use.
- Kulik Photography v. Cochran: The Eastern District of Virginia dismissed on jurisdictional grounds a copyright infringement suit brought by the author of a photograph that was used without permission in the O.J. Simpson murder trial.
- Levingston v. Earle: The District of Arizona held that appending a full copy of an author’s book to a pleading, in a harassment proceeding against that author, was fair use.
- Porter v. United States: The Fifth Circuit rejected a claim by the widow of Lee Harvey Oswald that she was entitled to compensation because the publication of Oswald’s writings in the Warren Commission Report diminished the value of the copyright in those works.
- Religious Tech. v .Wollersheim: The Ninth Circuit held that providing copies of the plaintiff’s copyrighted documents to the defendant’s expert witness was fair use.
- Scott v. WorldStarHipHop: The Southern District of New York held that the copying of a video of a fight for a student disciplinary proceeding was fair use.
- Shell v. City of Radford: The Western District of Virginia dismissed a copyright infringement suit by a photographer whose photographs were copied and used by detectives investigating the murder of the photographer’s assistant.
In addition to the cases cited above, two related situations, about which we have previously written, come to mind: (1) the largely unsuccessful spate of suits by the American Institute of Physics over the use of its copyrighted scientific articles in the patent prosecution process; and (2) the copying and distribution of legal briefs by Lexis and Westlaw, which was recently held to be fair use by the Southern District of New York.
There is at least one important exception for litigators in particular to remember: don’t cheat your vendors. None of the above fair use analysis counts when the copyrighted work in question is an exhibit commissioned for the express purpose of its introduction in a litigation. So, for example, if you have a license from a photographer to use certain images created specifically for one trial, and then try to use those images beyond the license for a separate additional proceeding, this may not be fair use. Why? Because in that example, the unauthorized copy is not being put to a transformative use, but rather to the same use for which the original was created: to be introduced as a trial exhibit. For examples, see Images Audio Visual v. Perini and Ross v. Rexall Drugs.
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Well, you wouldn’t cross “Nimmer on copyright”, would you?
How about high-priced acoustic standards and methods published by Acoustical Society of America (ASA) and/or American National Standards Institute (ANSI) that a project sponsor relies on to demonstrate compliance, where project opponent seeks to append excerpts of the standards to counter the demonstration? Does it matter if the submission of the document in a proceeding is marked up to highlight specific points?
Interesting question. I haven’t seen any cases going to similar issues.
what about when your demonstrative has labels, brands and other trademarks visibly present. For example, a computer animation re-creation of an accident scene where vehicle brands are apparent (ie Hummer). Or if perhaps a McDonald’s restaurant is in the background. Is this infringement when it shows up in a demonstrative intended for trial? Or is this fair use, editorial?