If the Supreme Court sides with the plaintiff in a dispute over the copyright of the 1980 Martin Scorsese pic “Raging Bull,” Hollywood studios would likely have one less defense to use in idea theft cases. But plenty of entertainment attorneys also hope that such a decision would send a message to an appellate court they view as too favorable to conglomerates.
The chief judge of the 9th Circuit Court of Appeals, Alex Kosinski, once famously dubbed it “court of appeals for the Hollywood circuit.” In the eyes of a newly formed organization of entertainment attorneys, it’s one that “has become amorphous or markedly adverse to creators,” as they put it in a brief urging the Supreme Court to take the “Raging Bull” case.
The Supreme Court on Tuesday did just that. The case involves Paula Petrella’s claim that a book and two scripts her father wrote in collaboration with boxer Jake LaMotta were the basis for the movie “Raging Bull.” But a district court and the 9th Circuit sided with the studio in dismissing the suit, concluding that even though there is a three-year statute of limitations on copyright claims, the “doctrine of laches” applied. The latter is the concept that lawsuits can’t be brought before the court if there is an unreasonable delay.
The studio contends that Petrella waited too long to file suit, having renewed the copyright on one of her father’s works in 1991, then asserting a copyright claim in letters to the studio from 1998 to 2000. But she did not file suit until 2009. The 9th Circuit, in finding that she waited too long, cited one of her explanations for the delay, that “the film was deeply in debt and in the red and would probably never recoup” and she “did not know there was a time limit to making such claims.”
“A person claiming rights in intellectual property may not sit back and wait for others to make that property profitable before asserting those rights,” attorneys for MGM argued in their brief to the Supreme Court.
Not a week goes by where a studio isn’t hit with an idea theft case, and many are dismissed, like the Petrella case, before a court even gets to the merits of the claim.
What undoubtedly made the case ripe for Supreme Court review, however, was that other circuits have taken a different approach, and have rejected the laches defense and allowed copyright cases to proceed when the plaintiff still falls within the statute of limitations. Petrella did, as MGM was still exploiting “Raging Bull” in homevideo release.
“Under our system of separation of powers, courts may not use non-statutory time limits to constrict express limitations periods enacted by Congress,” her legal team said in their petition for review.
Bennett Bigman, partner at the Liner Law firm, said that it was “somewhat rare that the Supreme Court agrees to hear any copyright case. On the other hand, if any case is ripe for review, it is this one. You have a very severe split in the circuit courts.”
In an amicus brief to the Surpreme Court, the newly formed California Society of Entertainment Lawyers argued that the case is indicative of 9th Circuit’s tendency to side with the studios. They contend that Petrella’s case is “symptomatic” of the appellate court’s “broader hostility to copyright plaintiffs — specifically, creators filing suit against conglomerates within the entertainment industry for violation of their intellectual property rights.”
“Studios and networks have won every one of the dozens of copyright infringement cases litigated to final judgment in the Ninth Circuit since 1990, to the best of counsel’s knowledge and research, usually on summary judgment,” attorneys for the society said. The lawyers who founded the organization include Steven Lowe and Daniel Lifschitz of Lowe & Associates, and Steven Smyrski of Smyrski Law Group..
“Invariably, the studios and the networks prevail again and again and again, and it has become very pronounced,” Lowe said in an interview. The 9th Circuit, he noted, was the only federal appellate court that has been accepting the doctrine of laches as a “complete defense.” In their brief, the society also argues that the 9th Circuit has been applying a “defendant-friendly” test to determine whether a project had a “substantial similarity” to another. That is a key test for a plaintiff to prove that an idea has been ripped off.
Bigman, who is not a member of the society, said that “the bottom line is that the federal courts, and the 9th Circuit, have rarely sided with plaintiffs” in copyright cases. A decision in favor of Petrella could send a message to the 9th Circuit “to take more of an even-handed approach in line with other circuits.”
He predicted that the Supreme Court may find “some middle ground that will not completely wipe out the possibility of a laches defense under certain circumstances.”
A middle ground, for instance, would be to allow laches to be used in appropriate cases to bar injunctive relief, but not to prevent plaintiffs from having an avenue for recovering damages if their claim is brought within the statutory period.
That may mean one less arrow in the studios’ quiver, but satisfaction for many plaintiffs lawyers nonetheless.
For her case, Petrella enlisted Stephanos Bibas, director of the Supreme Court Clinic at the University of Pennsylvania Law School, along with Glen Kulik of Kulik Gottesman & Siegel. MGM is represented by a team that includes Mark A. Perry and Blaine Evanson of Gibson, Dunn & Crutcher and Jonathan Zavin and David Grossman of Loeb & Loeb.