Should litigants assert copyright in the pleadings they file with the courts? The U.S. Court of Appeals for the Second Circuit recently answered this novel question with a resounding “no,” and this column will explain the reasoning behind that decision. Although the court in Unclaimed Property Recovery Service v. Kaplan1 (hereafter UPRS) generally limited its holding to the particular facts of that case, it also articulated larger principles about the limits and purposes of copyright, and an expansive application of the doctrine of implied licenses, that could have broader application.
The 2006 Class Action
In 2006, UPRS and its principal Bernard Gelb were two of the named plaintiffs in an Eastern District class action, Frankel v. Cole. They allegedly researched and drafted the initial complaint (First Complaint), compiled the accompanying 300-plus pages of exhibits (First Exhibits), and located and obtained powers of attorney from other class plaintiffs (“non-UPRS parties”). They hired now-defendant Norman Kaplan to represent the class. The Eastern District dismissed the action as untimely, and attorney Kaplan filed an appeal on behalf of the whole class. Gelb and Kaplan “had a falling out” during the course of the appeal, Kaplan withdrew as counsel for Gelb and UPRS, and the copyright plot thickened.
