Today, February 25, President Joe Biden announced his nominee for the Supreme Court—Judge Ketanji Brown Jackson, who would replace Justice Stephen Breyer who plans on retiring after a little over 27 years on the Court. Judge Jackson’s nomination is historical as she is the first Black woman to be nominated to the nation’s highest bench.
Judge Jackson currently serves as a circuit court judge at the U.S. Court of Appeals for the D.C. Circuit, a position which she has held since last year after being nominated by President Biden. Prior to her current position, she was a district court judge at the U.S. District Court for the District of Columbia from 2013-2021. Judge Jackson also served as an assistant special counsel and later as Vice Chair of the U.S. Sentencing Commission and was a federal public defender in D.C. She also clerked for multiple federal judges, including for Justice Stephen Breyer in 1999–2000.
Not surprisingly Judge Jackson’s expertise as a legal practitioner and judge mostly involves non-copyright matters. But based on what we were able to find she has had some exposure to copyright law in her many years as a practicing attorney and judge. Most notably, as a Supreme Court law clerk, she may have participated in the Court’s review of one copyright case, and as a judge she has presided over several cases related to the Audio Home Recording Act as well as some copyright infringement cases. Let’s take a more in-depth look at some of these.
Judge Jackson as a Supreme Court Law Clerk
While Judge Jackson was a law clerk for Justice Stephen Breyer, the Supreme Court granted a writ of certiorari for the copyright case, Raquel v. Educ. Mgmt. Corp.. In that case, the question presented was whether the registrant’s description of the “nature of this work” as an “audiovisual work” constituted a material misstatement that might invalidate the copyright registration issued by the Copyright Office, and thus warrant dismissal of petitioner’s infringement suit.
The case concerned an invalidation of a certificate of copyright registration for a musical composition when the copyright owner described the nature of the work in the registration application as an “audiovisual work” and submitted a videotape of a television commercial which incorporated the copyright owner’s musical composition as a deposit. The Third Circuit Court affirmed that the registrant’s knowledge of the mistake would have led to the Copyright Office rejecting the application. But the Supreme Court, in a per curiam opinion, vacated and remanded the case to the Third Circuit to reconsider the case in light of the positions asserted by the Solicitor General in his September 20, 2000, amicus brief and the Copyright Office’s June 5, 2000, Statement of Policy. The Copyright Office and the Solicitor General explained that the Court should not invalidate the registration as “it has been and continues to be acceptable to describe the physical nature of the deposit submitted with the application” as the “nature of the work” on a registration application, as per the Office’s longstanding practice.
Judge Jackson’s Exposure to Copyright Cases as a Judge
As a district court judge at the District Court for the District of Columbia, Judge Jackson presided over several copyright cases. But she substantively weighed in on only a few cases, mostly to do with interpretation of the Audio Home Recording Act (AHRA) and whether automobile manufacturers were responsible for paying royalties for specific in-car audio devices that played music. In Alliance of Artists & Recording Companies, Inc. v. General Motors Company, using statutory interpretation and looking at Congress’ intent to address emerging sound recording reproduction technologies, Judge Jackson held that in order to obligate the manufacturer to pay royalties under AHRA, the in-car audio devices must be capable of creating a material object that contain fixed digital sound recordings. This in turn limited the types of devices that would be subject to AHRA.
Judge Jackson also presided over other types of copyright infringement cases, but there is not much we can take away from these cases as most of them were dismissed voluntarily by the plaintiffs. However, she did issue a substantive opinion in one copyright infringement case, Buchanan v. Sony Music Entertainment Inc. et al., in which she dismissed the case.
The case concerned a pro se singer-songwriter who alleged that major record labels and a movie studio infringed on the copyrights to his four original songs which he alleged were used to create other hit tracks for the companies. Plaintiff had distributed demo cassette tapes to the record labels and also alleged that the movie studio had access to the demo through their record label sister company. In granting the defendants’ motion to dismiss, Judge Jackson first held that since the plaintiff did not register three of his songs, he did not have standing to bring a copyright infringement suit. She also found that the plaintiff had insufficiently alleged access by the defendants to his songs, noting that (1) mere distribution of the demo tapes to the companies was not enough evidence to prove access, (2) that the distribution of the demos was not “widespread” enough, and (3) the plaintiff did not identify any of the writers/producers who created the infringing works. Judge Jackson also held that the plaintiff failed to sufficiently allege that there was substantial similarity between protectable elements of his songs and the allegedly infringing songs. In response to plaintiff’s negligence and strict liability claims, Judge Jackson stated that these claims were preempted by the Copyright Act.
While Judge Jackson may have had very few public interactions with copyright law, there is no doubt that she has a firm grasp of the basic principles of copyright law, including copyrightability, registration, and elements in an infringement case. Additionally, based on her opinions in the AHRA cases, Judge Jackson can also deftly handle complicated statutory interpretations that require acute understandings of modern technologies. Though it is unclear how involved she was in the Raquel case at the Supreme Court as a law clerk, it is interesting to see that she may have been expose to a case concerning copyright registration invalidation arising from an applicant’s mistake. Most recently, the Supreme Court considered the same issues in Unicolors v. H&M, where it held, in an opinion penned by Justice Breyer himself, that copyright registrants need not fear sudden invalidations of otherwise valid copyright registrations for unknown mistakes arising from facts or from law.
It is not surprising for a Supreme Court nominee to have very few copyright cases on their resumes. Judge Jackson is no exception here. It is also not surprising that her limited track record on copyright cases doesn’t provide much of an indication of how she may handle future copyright cases before the Court if she is confirmed as Justice Breyer’s replacement as the next Supreme Court Justice, and the first Black woman to serve on the Court.
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