Judge Robert Katzmann
Gelb owns Unclaimed Property Recovery Service Inc. (UPRS). Both were plaintiffs in Frankel v. Cole. They authorized class action plaintiffs' attorney Kaplan's filing of a complaint and exhibits, in which UPRS and Gelb claimed copyright. During the Frankel litigation, Kaplan allegedly amended the original documents and filed amended pleadings allegedly infringing UPRS's and Gelb's copyright. District court dismissed UPRS's and Gelb's infringement suit for failure to state a claim, holding that they granted Kaplan an irrevocable implied license to file an amended version of the original documents. On an issue of first impression, Second Circuit held that where the holder of a copyright in a litigation document has authorized a party to the litigation to use the document in the litigation, this constitutes an irrevocable authorization to all parties to the litigation (and to their attorneys, as well as the court) to later use the documents throughout the litigation. Because UPRS and Gelb authorized the class action plaintiffs to file the subject documents as the foundation of Frankel v. Cole, they cannot use copyright law to prohibit those plaintiffs (or their attorneys) from continuing to use the subject documents in the context of that litigation.
