Greg Aldisert quoted by Law360 in look at bench’s lighter side

KWIKA founding partner Greg Aldisert was one of the attorneys asked to comment in Bill Donahue’s piece for Law360 on something we don’t hear much about:  the “benchslap.”  That’s when judges get a little frisky and decide to spice up their rulings with unexpected rhetoric.

Judges are people too, so it’s no surprise they need to let off steam occasionally, especially when they feel like one party is a bit over the top. Said Greg:  “There are many bogus copyright claims filed where the claimant clearly demonstrates a lack of understanding of copyright law.  Judges sometimes use colorful language in the hope that it will dissuade the filing of such claims.”

Take the case of the estate of Arthur Conan Doyle, in its quest to protect the copyrights of the Sherlock Holmes stories a tad beyond their statutory limits.  Author Leslie Klinger wanted to publish an anthology of new Sherlock stories under the assumption that the renowned detective was in the public domain, but was taken to court by the estate, which insisted Klinger pay a $5,000 licensing fee.  Klinger objected since most of the stories are in the public domain, but the estate claimed the character was under copyright until the last of the stories lost protection.

By the estate’s figuring, 2022 was the earliest the license fee would no longer be required for new stories featuring Holmes.  Seventh Circuit Judge Richard Posner disagreed and said the estate’s claim “bordered on the quixotic” and raised the “spectre of perpetual copyright.”  In his ruling, Posner wrote, “The Doyle estate’s business strategy is plain:   Charge a modest license fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost . . . in challenging the legality of the demand.  It’s time the estate, in its own self-interest, changed its business model.”

In similar fashion, Ninth Circuit Judge Alex Kozinski was not pleased with the rhetoric coming from both sides when Mattel sued MCA Records over the song “Barbie Girl.”  Mattel claimed the song violated its copyrights and trademarks and tarnished the Barbie name with inappropriate lyrics.  Kozinski ruled that the song was a legal parody.  However, there remained some defamation claims made by MCA based on a Mattel employee’s use of terms like “bank robber,” “heist, “crime,” and “theft” in describing the actions of the record company.

Kozinski wasn’t buying it, and said Mattel’s colorful terms were no different from MCA’s use of “piracy” to describe its own claims against copyright violators.  “No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo.  In context, all these terms are nonactionable rhetorical hyperbole.”

“The parties are advised to chill.”