Raging Bull 9th Circuit Favoritism

Jake LaMotta’s career ended in the 1950s, but his legacy lived on in books, screenplays, acting and, of course, the 1980 movie “Raging Bull.” And on Tuesday, his life will have had at least an indirect impact on a legal doctrine that made its way to the Supreme Court.

The question was whether Paula Petrella, the daughter of one of LaMotta’s writing collaborators, Frank Petrella, waited too long to press her claim that MGM’s movie infringed on the copyright she held on a 1963 screenplay her father wrote, “The Raging Bull.” She became aware of her copyright stake in 1991, but didn’t file an infringement suit until 2009.

The justices, in session despite the closure of many other federal offices because of a snowstorm, gave few clear hints of which way they are leaning.

The Copyright Act spells out a three-year statute of limitations — meaning that Petrella would be entitled to damages only as far back as 2006 — but lower courts dismissed her claim altogether. They based it on the legal doctrine of laches, which prevents cases filed after unreasonable lengths of time.

There was some concern among the justices that overturning the ruling would foreclose a legal doctrine that has been accepted as a way to bring equity among two parties in a legal action.

“The government says you might be entitled to payment for the use of your copyright because it belongs to you and there shouldn’t be some adverse possession right that the other side gets,” Justice Sonia Sotomayor said to Petrella’s attorney, Stephanos Bibas. “But in terms of injunctive relief, given their reliance on your failure to to act for 18 years, they shouldn’t be put out of business and told that they can’t continue their business.”

Bibas, however, noted that “a copyright is a property right. It comes with the right to exclude presumptively” and “ought to remain on the table to exclude with injunctive relief.”

Bibas, who is on the faculty of University of Pennsylvania Law School, also challenged notions that Petrella simply was waiting for the movie to turn a profit to pursue her claim.

“Whether our client brings suit now or 20 years from now, she gets three and only three years damages,” he said. “The evidence in this case is that creative works are worth the most right after they’re released. And so the value of the claim does down. [The studio gets] to keep the first 17 years of profits if she waits.”

Several of the justices asked why the Copyright Act should freeze out the laches doctrine while other legal doctrines are still used as defenses in other cases. Justice Samuel Alito noted that the law “doesn’t say if you are within three years you are home free.”

MGM, along with other studios, contends that without laches, plaintiffs could file cases anytime a project is released in a new format, subjecting them to the possibility of claims years after a movie, TV show or book is released.

Justice Ruth Bader Ginsburg asked MGM’s attorney, Mark Perry, why was “unreasonable” for a plaintiff to wait to see “if the copyright is worth anything.”

He noted that the Copyright Act includes statutory damages and a provision for collection of attorneys’ fees, so there is an “economic incentive for the rights asserter to come forward to court and clarify those rights, because these are valuable assets. Even money-losing films, books, songs and so forth are traded, as financed, are bought and sold, either individually or as part of a company. And the entire economic system benefits from greater clarity and earlier resolution of rights.”

Yet Sotomayor asked why, if MGM knew that Petrella had inquired about her claim in letters from 1998, the studio didn’t seek a declaratory judgment.

“She showed up as our guest at a party for the 25th anniversary suggesting that she agreed with our interpretation of this,” he said. “And then she didn’t sue for years and years later.”

When he suggested that Petrella wanted to “skim the cream” in waiting for an opportune moment to file the case, after MGM invested heavily in its anniversary re-release in 2005, Sotomayor said, “What’t so bad about that?”

She said, “You’ve gotten a lot of profits in those 18 years and, in fact, at one point when she did reach out to you, you told her, ‘Why sue? You’re not going to get any money’ We’re not making any.”

Perry said that film “still has never made a profit” for that period. He said “she made a demand which we refused. We get lots of demands and we refuse them. And the last letter in the series was, ‘You have no claim.”

Justice Elena Kagan said that it “troubles me” that there was such a dearth of cases that have applied laches in copyright cases where there is a statute of limitations, and worried that it would “bring all sorts of actions” in the court. Justice Antonin Scalia said that he “shared” her reservations.

But Perry argued that the use of laches was “well understood,” citing the often quoted Judge Learned Hand’s recognition of it as a defense that helps bring equitable standards to the judicial process.

He suggested that even though the 9th Circuit applied laches in this case, it didn’t mean that it was always going to be used but that it would be in unusual circumstances.

“There is a difference in the availability of laches and the applications of laches,” he said.

William Kane, a BakerHostetler litigator who recently represented the estate of Kevin McClory in a recent settlement with MGM of the rights to James Bond, said that the decision will be particularly relevant to the entertainment industry because of the reliance on remakes or reboots in new formats, with families of original creators retaining some of the underlying rights.

“The case is very important not only to the entertainment industry but to the artists as well,” he said. “There’s really a need for certainty on both sides.”

In the oral arguments, Sotomayor asked Perry whether they would use a laches defense if they were to make a new version of “Raging Bull.”

“We would not take the position that laches applies there because it is a new work as opposed to …the repeat release of the same work,” Perry said.

Petrella’s father died in 1981, a year after the movie’s release. A 1990 Supreme Court decision over the rights to “Rear Window” held that when an author passes away before the copyright renewal term is up, the heirs can claim the renewal rights, which Petrella did. MGM claims that the movie does not have a “substantial similarity” to her father’s screenplay, and therefore is not infringing. But those are issues that will be left to resolve if the Supreme Court rules in her favor. Outside the court, Petrella posed for pictures on the steps of the court with Bibas’ law students, but declined comment.

Filed Under:

Follow @Variety on Twitter for breaking news, reviews and more
Post A Comment 2