On October 12th, the Senate Judiciary committee began its discussion of the nomination of the Honorable Amy Coney Barrett to a seat on the U.S. Supreme Court. Prior to her nomination to the Court, Judge Barrett served as a judge in the 7th Circuit Court of Appeals after being nominated to that court by President Trump in 2017. While her three year tenure means there are few clues as to her views on intellectual property, three copyright decisions out of the 7th Circuit, for which Judge Barrett was one of three judges on a panel considering the cases, shed some light on how she might rule in copyright cases. With approximately 40 copyright petitions currently before the Supreme Court, the stakes are high for rights holders and policy makers. It should be noted that Judge Barrett did not write any of the below opinions herself, but participated in deliberations and joined each of them in full. While Judge Barrett’s nomination has been subject to controversy in some circles, there is reason to be optimistic about her views on copyright law.  

Rucker v. Fasano

Rucker v. Fasano was a case in which an author of an unpublished work alleged that an author of a similar published work had infringed her copyright. In 2010, author Kelly Rucker submitted a chapter and synopsis for a novel, The Promise of a Virgin, to a fiction contest sponsored by Harlequin Publishing, a popular trade publisher of romance novels. Then next year, Rucker learned she was not a finalist in the competition. Then, in 2013, Rucker found a book on Amazon entitled Reclaim My Heart written by defendant Donna Fasano. After purchasing a copy and reading the book, she discovered “several similarities between the plot of the novel and her work.” Both novels told “a tale of a wealthy teenage girl who falls in love with a boy of Native American heritage and becomes pregnant, before they are cruelly parted[,]” before “the lovers are reunited years later and . . . rekindle their fiery romance while their child explores his indigenous heritage with his father’s guidance.” Rucker believed that these similarities showed that Harlequin must have given her synopsis and sample chapter to Fasano, forming the basis for her copyright claim.

Ultimately, Rucker’s claim was found to be meritless. After a district court ruled in Fasano’s favor, finding that Reclaim My Heart did not infringe upon Rucker’s copyright in The Promise of a Virgin, Rucker appealed the ruling to the 7th Circuit. The district court had concluded that the novels “were not strikingly similar,” despite sharing some common themes, since “Rucker’s book was a ‘highly sexualized romance’ while Fasano’s was more of a ‘courtroom drama.'” The district court was also persuaded by the fact that Fasano finished a manuscript for a work that later became Reclaim My Heart in 2007—before Fasano began writing The Promise of a Virgin. Fasano also submitted a synopsis of the work to Harlequin in 2006, but her book was ultimately published by Amazon. 

In the 7th Circuit, a three judge panel including Judge Barett affirmed the district court’s holding, focusing on the impossibility of copying where Fasano’s book was written before Rucker’s and where there was not only no evidence of copying, but no possibility that Rucker could have copied Fasano’s work based on the timeline. The court stated summarily that given the factual record, “it is established that Fasano did not copy Rucker’s work,” without which “there can be no viable claim for copyright infringement.” Rucker’s claim that she “‘believe[d] upon reliable information’ that Fasano had access to the submissions to the Harlequin contest” was found to be insufficient to support an inference that this was the case. 

Vernon v. CBS Television Studios

In Vernon v. CBS Television Studios, writer Antonio Vernon sued several television networks for copyright infringement, alleging that they had stolen his idea for a television show called Cyber Police, for which Vernon had unsuccessfully submitted three scripts to a production company. Vernon alleged that a multitude of television shows on these networks including Intelligence, CSI: Cyber, and Cybergeddon infringed his copyright in Cyber Police based on the similarities between his work and these shows. After a district court dismissed his claims on grounds that his complaint was inadequate, Vernon appealed to the 7th Circuit. 

A three judge panel including Judge Barrett affirmed the district court’s dismissal of Vernon’s complaint. It found that the supposedly copied features of his work, such as “agents fighting cybercrime, ‘romantic strife,’ and ‘computer hijacking'” were “too common and standard to plausibly suggest that defendants’ shows were ‘substantially similar’ to his.” Such elements are known as scènes à faire—features standard to certain types of works, like marriages at the end of romantic comedies and shoot-outs in western films—and are as a rule not protected by copyright. In holding that there was no valid claim for infringement, the court underscored this principle and applied it to a relatively new type of work: technology-driven police television shows. This application of scènes à faire relaxes the threat of litigation for authors that seek to use familiar scenes and elements in their works, even when those scenes and elements involve new and emerging fields and technologies.

Sullivan v. Flora, Inc.

Sullivan v. Flora concerned the question of what constitutes a “work” for the purposes of a copyright infringement suit when the allegedly infringing materials consist of multiple images registered for copyright under a single application. While this may seem overly technical, there are wide-ranging implications for rights holders subject to meritless copyright claims.

In 2013, graphic artist Amy Sullivan entered into an agreement to produce original artwork for two informational videos for Flora, Inc., an herbal supplement company, though she retained the copyright in her work. Later that year, Sullivan discovered that Flora had used her artwork in promotional advertising, which the agreement between the parties did not authorize. Sullivan contacted Flora about the matter, and some of the images were removed from the promotional advertising materials. Sullivan proposed a licensing agreement whereby Flora could pay for the continued use of her artwork in the promotional materials. Flora refused, whereupon Sullivan filed suit. A jury ruled in Sullivan’s favor, finding Flora had infringed Sullivan’s copyright in 33 individual illustrations and awarding her $3.6 million in statutory damages. Flora then appealed the determination to the 7th Circuit.

One issue that loomed large in the litigation was the question of whether the 33 images used by Flora without proper authorization constituted a single work, or 33 separate works, for purposes of copyright. All the illustrations were registered on the same copyright application, but on the other hand they were separate, discrete illustrations. Because statutory damages in a copyright infringement lawsuit are calculated on the basis of the number of works infringed, the question had serious implications for Flora’s financial obligations but also for copyright claimants more broadly. This was the question before a three judge panel including Judge Barrett. The 7th Circuit considered, as a matter of first impression for that circuit, “what constitutes ‘one work’ in a fact pattern where a jury found infringement on multiple works registered in a single copyright application.”  The court held that this inquiry should ask whether the works have substantial independent economic value on an individual basis, or if the value lies in their compilation and relies on the presentation of all works in concert. This fact-sensitive analysis makes it more difficult for a copyright claimant to prevail on large damages awards based on infringement of multiple images where the images function as a compilation. After laying out this test, the court remanded the case to the district court for application of the proper analysis to Sullivan’s claim, vacating the $3.6 million damages award. 

Sullivan v. Flora is still ongoing—in early 2020, the parties submitted their briefs to the district court for the Western District of Wisconsin in support of their positions regarding damages.

Key Takeaways for Authors

While it is difficult to extrapolate a comprehensive view of copyright law from copyright decisions Judge Barrett participated in during her time in the 7th Circuit, a theme of skepticism of overbroad copyright claims and excessive damages emerges from these three decisions. In both Rucker v. Fasano and Vernon v. CBS, the court rejected copyright infringement claims based on tenuous similarities between two works, signaling that more is required than mere thematic similarity to prevail on a copyright infringement claim. Together, the cases make clear that a belief that a later work is simply too similar to the author’s own work alone cannot be the sole basis for a successful copyright claim in the 7th Circuit. 

Sullivan v. Flora also has important implications for authors, since the judges in the case demonstrated a concern about excessive damages in copyright actions. One of Authors Alliance’s founding principles is ensuring copyright’s remedies protect our members’ interests, and this decision serves as an obstacle for excessive damage awards in the 7th Circuit: a claimant must prevail on proving that each compiled work has independent economic value before being awarded damages based on multiple incidences of infringement: multi-million dollar awards like the plaintiff in that case received cannot be the default in such situations.

Tomorrow, the Senate Judiciary Committee will consider S. 4632, the Online Content Policy Modernization Act, which would establish a small claims tribunal within the Copyright Office as an alternative to federal court for pursuing copyright claims. Authors Alliance has concerns with the provisions in the current draft.

As we’ve previously written, Authors Alliance supports reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. Today, the high cost of litigation keeps many independent authors and other creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the copyright small claims dispute provisions in S. 4632 invite abuse and pose a high likelihood of harm to authors as both claimants and respondents in the proposed tribunal.

To address problems with the current draft of S. 4632, we urge the Committee to:

• Limit statutory damages to cases where it is impossible or cost prohibitive to prove actual damages and develop principles to guide awards of statutory damages;
• Remove restrictions on the grounds for judicial review of the tribunal’s decisions;
• Include additional safeguards to deter copyright trolls and preserve the utility of the small claims tribunal for independent authors and creators;
• Require potential respondents to affirmatively opt-in to the small claims process; and
• Narrow the jurisdiction of the small claims tribunal.

Read more about these recommendations in our letter to the Committee.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works in lawful ways. We urge the Committee to modify the bill to better serve the creators it is intended to benefit.

Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a petition with the Copyright Office for a new three-year exemption to the DMCA as part of the Copyright Office’s eighth triennial rulemaking process. Our proposed exemption would allow researchers to bypass DRM measures in order to conduct text and data mining research on both literary works that are published electronically and motion pictures. Further details can be found in the full text of the petition, available here.

Text and data mining allows researchers and others to gain new insights into language and culture, scientific inquiry, and civic participation. For example, text and data mining can be used to examine the evolution of language over time or to identify important but overlooked findings in scientific papers.

While the possibilities of text and data mining are great, researchers face limitations in their ability to use the technique. They must either rely on collections of works created by others, which may be missing important, relevant works, or they must build their own collections, a prohibitively time-consuming process in which researchers manually scan printed books or capture video playback in real time.

Authors Alliance believes that researchers building their own collections of works should be able to bypass DRM measures to extract data directly from sources such as eBooks and DVDs. The DMCA prohibits such circumvention, even if the intended use would not infringe anyone’s intellectual property rights. If this exemption is granted, researchers will be empowered to build relevant collections and conduct this important research.

How you can help

Historically, the Copyright Office has scrutinized the factual record when deciding what exemptions ought to be granted. Assuming the Copyright Office considers our exemption request, we will need to make a more detailed submission to the Copyright Office later this year that fully sets out the legal and factual basis for the exemption. If your research has been impacted by the inability to access electronically published literary works or motion pictures, we want to hear from you. Please reach out to us at info@authorsalliance.org and share your story.

Authors Alliance is grateful to Clinic students Jason Francis and Alistair McIntyre, supervised by Clinic Director Catherine Crump and Teaching Fellow Gabrielle Daley, at the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law for their assistance filing this petition and for this blog post.