Tuesday, October 16, 2007

Judge James L. Oakes

We have lost one of our greatest judges, Judge James L. Oakes (whose initials deliciously spelled out Jell-O). Judge Oakes was a native of Illinois, but spent his professional career in Vermont, where he was every bit a classic Vermonter: an individual who believed in the need for society to benefit everyone. His service as a state legislator, state attorney general, and federal judge gave him vast insights into how government achieved or thwarted those goals, goals which he, as a public servant, devoted his life to. He served on the Second Circuit for 36 years, and was its chief judge from 1988 to 1992. As the NY Times noted in its obituary:

Scholarly and gregarious, Judge Oakes insisted in his decisions, speeches and writings that judges should never shy away from protecting fundamental rights. He had little patience, he wrote in a 1997 article in the Columbia Law Review, for politicians who attacked such rulings as improper activism. Historic moments, he added, sometimes required judges to act “when the rest of our political structure bogs down.” In this sense, he was, he wrote, “old-fashioned — fashioned from the thirties of the Great Depression, the forties of war and the Holocaust and fascism, the fifties of the cold war and McCarthyism and Little Rock, and the sixties of the civil rights movement, the assassinations and the would-be Great Society.”

It will surprise people then to learn that he was a Nixon appointee. President Nixon appointed him to the District Court for Vermont in 1970 and to the circuit court the following year. While my contact with him was with copyright, where he was a giant in the field, he was very proud of his opinions in other areas. He was, for example, the dissenter in the Pentagon Papers case, with the Supreme Court agreeing with him on appeal. (Even when the Supreme Court reversed him, as it did in his Mills Music v. Snyder copyright case, his was the correct opinion). He also wrote majority opinions upholding regulations barring sex discrimination in education, applying the principle of one-person-one-vote to New York City’s Board of Estimate, and allowing aliens to challenge deportation orders in court. As the New York Times noted, "All three decisions were affirmed by the Supreme Court."

In the field of copyright, Judge Oakes, as a private lawyer, was involved in a landmark case under the 1909 Act on work for hire, Brattleboro Publishing Co. v. Winmill Publishing Co., 369 F.2d 565 (2d Cir. 1966). I don't think he issued an published opinions in his short tenure as a district judge, but on the court of appeals, I can think of 30 major majority opinions and two important concurring opinions. Here are the most important of the majority opinions, which many readers will quickly recognize as cornerstones of Second Circuit law today:

Medforms, Inc. v. Healthcare Mgt Solutions, Inc., 290 F.3d 98 (2d Cir. 2002)
Morris v. Business Concepts, Inc., 283 F.3d 502 (2d Cir. 2002)(earlier opinion at 259 F.3d 65)
Hamil America, Inc. v. GFI, 193 F.3d 92 (2d Cr. 1999)
Richard Feiner & Co. Inc. v. Turner Entm't Co., 98 F.3d 33 (2d Cir. 1997)
Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996)
Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996 (2d Cir. 1995)
Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995)
Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775 (2d Cir. 1995)
Folkways Music Publishers, Inc. v. Weis, 989 F.2d 108 (2d Cir. 1993)
Laureyssens v. Idea Group, Inc., 964 F.2d 131 (2d Cir. 1992)
Brandir Int'l, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142 (2d Cir. 1987)
Sygma Photo News, Inc. v. High Society Magazine, Inc., 778 F.2d 89 (2d Cir. 1985)
FII, Inc. v. Moody's Inv. Service, Inc., 751 F.2d 501 (2d Cir. 1984)
Warner Bros., Inc. v. Gay Toys, Inc., 724 F.2d 327 (2d Cir. 1983)
Harry Fox Agency, Inc. v. Mills Music, Inc., 720 F.2d 733 (2d Cir. 1982)(rev'd by S.Ct.)
Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980)
Big Seven Music Corp. v. Lennon, 554 F.2d 486 (2d Cir. 1976)
L. Batlin & Sons, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976)
Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975)
Meeropol v. Nizer, 505 F.2d 232 (2d Cir. 1974).

The two concurrences are (1) New Era Publications, Int'l ApS v. Henry Holt & Co., Inc., 873 F.2d 576 (2d Cir. 1989), in which he wrote to defend then district judge Pierre Leval's fair use approach and to state his views in favor of fair use of unpublished works in cases where copyright was being used to suppress criticism; and, (2) Author's League of America, Inc. v. Oman, 790 F.2d 220 (2d Cir. 1986), a challenge to the then extant manufacturing clause, in which he wrote to leave open the possibility of a First Amendment limitation on copyright.

Judge Oakes' writing style was lively yet precise. In the Sygma case, for example, he wrote:

One of the challenging socio-legal questions raised by this copyright infringement case involves the extent to which the buyers of men's “sophisticate” magazines are motivated to purchase a particular magazine by the cover photo. The question is no less difficult when the photo is, as it is here, one of Raquel Welch in the buff (modestly covering herself in the nature of September Morn).

He also had a great interest in the esoteric issue of conceptual separability - when the design of a useful article could be protected. He wrote two opinions on this, the first, Kieselstein Cord, involving a belt buckle, in which he began:
This case is on a razor's edge of copyright law. It involves belt buckles, utilitarian objects which as such are not copyrightable. But these are not ordinary buckles; they are sculptured designs cast in precious metals-decorative in nature and used as jewelry is, principally for ornamentation. We say “on a razor's edge” because the case requires us to draw a fine line under applicable copyright law and regulations.
(District Judge Weinstein, sitting by designation had a different view: The works sued on are, while admirable aesthetically pleasing examples of modern design, indubitably belt buckles and nothing else; their innovations of form are inseparable from the important function they serve-helping to keep the tops of trousers at waist level.")

The other conceptual separability case was Brandir, involving the unique undulating bike rack design that is so common today. It was with conceptual separability that I came to meet Judge Oakes. In the late 1980s, I was a Policy Planning Advisor to the Register of Copyrights, and wrote a study on copyright protection for architectural works. I asked Judge Oakes and Judge Jon O. Newman, another giant in the field, if they would sit down for a discussion of the issue. They agreed, and I flew to NYC and met them in Judge Oakes' chief's chambers in Foley Square. After a good discussion, we went to dinner at an Indian restaurant at Rockefeller Center. I had been to NYC only a few times at this point and suggested taking a cab. Judge Oakes insisted we take the subway, which I hadn't taken before. This was before Rudy Giulani had allegedly tamed the city, and I had visions of Sylvester Stallone-looking thugs in black leather jackets terrorizing us while Woody Allen hid behind his newspaper. But I thought if a circuit judge could ride the rails, so could I and did without incident, as I have . I stayed in touch after then and saw him last last year, at a speech Judge Leval gave at NYU Law School.

Judge Oakes' openness (so evident in his willingness to vacate a huge chunk of his first Morris Business Concepts opinion), his intellectual curiosity, his warmth, and commitment to all of God's creations will be deeply missed, but never forgotten. May his memory be a blessing for eternity.

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