Copyrights and Litigation Documents

The matter Unclaimed Property Recovery Service, Inc. v. Kaplan No., 12-4030 (2d Cir., Aug. 20, 2013) presents an issue of whether the holder of a copyright in a litigation document may withdraw the authorization to use the document after the document has already been introduced into the litigation and make subsequent infringement claim for the use of the document in the litigation.

The plaintiff in this case, Bernard Gelb and his company Unclaimed Property Recovery Services (UPRS), drafted pleadings and exhibits and authorized attorney-defendant, Alan Kaplan, to file them on his behalf, his company, and others in a class action suit. After the original case was dismissed for the statute of limitation, the plaintiff had a falling out with the attorney-defendant and tried to dismiss the appeal. In the meantime, some of the class plaintiffs withdrew their Power of Attorney vested in the plaintiff to pursue the appeal. The Second Circuit dismissed the appeal with respect to Gelb and UPRS but maintained it with respect to the other clients, ultimately overturning the dismissal.

The plaintiff then filed for and received Certificates of Registration from the Copyright Office for the initial complaint and exhibits. The attorney-defendant filed suit again, submitting a Second Amended Complaint and exhibits that used significant parts of initial complaint. Gelb sued the attorney-defendant for copyright infringement. The district court dismissed the case for failure to state a claim and the Second Circuit affirmed holding that the needs of the courts 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 Second Circuit held that the documents are irrevocably authorized for use throughout the litigation thereafter because litigation cannot be conducted successfully if the parties to the litigation and their attorneys are prohibited from using the documents that are a part of the litigation. Therefore, such an authorization to use the litigation documents necessarily conveys to all present and future attorneys and to the court, and is irrevocable.

The courts could not thoroughly and fairly adjudicate a matter if suddenly in the midst of litigation the parties lost the right to present to the court documents already used in the litigation that support their arguments. The holder of the copyright in a document who authorizes a party to use that document in a litigation knows, or should know, the inevitable consequences of the authorization. Accordingly, 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 Court also stated that permission of the copyright holder is not inevitably needed for use of a copyrighted document in litigation. However, this decision is based on the particularities of the facts, and whether legal pleadings or other legal documents are subject to copyright law is still unclear.