Wednesday night, Judge Stanley Birch of the Eleventh Circuit gave the Brace Lecture in New York City, sponsored by the Copyright Society of the U.S.A. Judge Birch has a long-time interest in copright, going back to his days in private practice when he was involved in the early Cabbage Patch Dolls litigation. Since ascending to the bench, he has written many of the court of appeals' opinion, most famously perhaps in the Wind Done Gone case, the first politically correct fair use opinion.
Judge Birch's views on fair use did not, I believe, receive a warm embrace from his audience, but that may have been attributable in part to his belief that there should exist meaningful fair use privileges. To its credit, the Copyright Society has made a practice out of inviting prominent jurists who take similar views, including Judge Posner. Judge Kozinski also gave a controversial talk on the subject. The day after his Copyright Society speech, Judge Birch issued his latest copyright opinion, in Corwin v. Walt Disney Company.
Corwin has bizarre facts, but in essence was a claim that Disney's EPCOT center infringed a painting that expressed an idea of a themed area. Plaintiff's evidence of access was not based on any direct evidence, but hearsay and expert reports (four of them). The expert reports were, of ocurse, used to gin up an inference of striking similarity permitting plaintiff to take the case to a jury, which could then be whipped up into a frenzy of resentment toward the evil corporation that (allegedly) ripped off yet another individual. Disney introduced evidence of independent creation.
The district court granted summary judgment to defendant, and the court of appeals affirmed. Two items are of interest in Judge Birch's opinion. First, he affirmed the district court's exclusion of the expert report, something which I pray is a trend. Second is an attempted rewrite of Leigh v. Warner Bros, Inc., 212 F.3d 1210, 1214 (11th Cir. 2000), which had stated that "no matter how the copying is proved, the plaintiff also must establish specifically that the allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected element." Plaintiff relied on this passage as support for his argument that one could establish substantial similarity without proof of access. Rather than rejecting this clearly erroneous reading of Leigh and basic copyright law, Judge Birch stated that "when examined in contextm Leigh appears to have used the word 'copyng' in place of 'access.'"
I think not, and don't know Judge Birch thought so. Here is the entirety of the relevant section from Leigh:
To establish a claim of copyright infringement, a plaintiff must prove, first, that he owns a valid copyright in a work and, second, that the defendant copied original elements of that work. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). The plaintiff can prove copying either directly or indirectly, by establishing that the defendant had access, and produced something “substantially similar,” to the copyrighted work. See Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982). Substantial similarity, in this sense, “exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Id. (internal quotation omitted).
“Substantial similarity” also is important in a second, more focused way. No matter how the copying is proved, the plaintiff also must establish specifically that the allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected elements. See Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1248, 1257 (11th Cir.1999) (per curiam, adopting the district court opinion in its entirety); Beal, 20 F.3d at 459 & n. 4; William F. Patry, Latman's The Copyright Law 193 & n. 18, 196-97 (6th ed.1986).