What Would Amy Coney Barrett’s Supreme Court Confirmation Mean for Copyright?

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On September 26, President Trump announced his intent to nominate Judge Amy Coney Barrett to the Supreme Court of the United States. Judge Barrett has served as a judge on the U.S. Court of Appeals for the Seventh Circuit since 2017. Prior to her tenure, Judge Barrett received her J.D. from Notre Dame Law School, served as a law clerk for the Honorable Laurence H. Silberman (U.S. Court of Appeals for the District of Columbia Circuit), and served as a Supreme Court law clerk for Justice Antonin Scalia.

Judge Barrett’s experience practicing law includes two years working for a firm in Washington, D.C., after which she entered academia. Judge Barrett first taught for one year at George Washington University Law School as a visiting associate professor and John M. Olin Fellow in Law. She then went on to join the faculty at Notre Dame Law School in 2002, teaching Constitutional Law, Civil Procedure, and Evidence until 2017 when she joined the Seventh Circuit. Judge Barrett also spent a year as a visiting associate professor of law at the University of Virginia School of Law in 2017.

During the time that Judge Barrett was a law clerk for Justice Scalia, the Court decided two copyright cases: Quality King Distributors Inc., v. L’anzaresearch International Inc. and Feltner v. Columbia Pictures Television, Inc.

Quality King involved questions surrounding the first sale doctrine as it applies to the sale of goods that are then re-imported into the United States. In a unanimous decision, the Court found that the first sale doctrine applies to imported goods and that a copyright owner cannot prevent re-importation of goods that it had authorized for export from the United States. Justice Scalia did not write the opinion or a concurrence.

In Feltner, the Court unanimously found that defendants in cases involving statutory damages have a Seventh Amendment right to a jury trial. Justice Scalia wrote a concurrence that deals with statutory interpretation and constitutional issues, but it did not focus on substantive copyright law.

While Judge Barrett has not issued her own opinions regarding copyright law, and her scholarship as a professor did not address intellectual property issues, she has served on judicial panels that decided cases involving copyright law questions. A summary of each case is included below.

Sullivan v. Flora, Inc., 936 F.3d 562 (7th Cir. 2019)

Sullivan v. Flora, Inc. involved a question of first impression for the Seventh Circuit on the scope of statutory damages recoverable under the Copyright Act of 1976: What constitutes “one work” in a fact pattern where a jury found infringement on multiple works registered in a single copyright application?

In this case, a graphic design artist sued an herbal supplement company for copyright infringement when it used her illustrations in ads that were not included in their contractual agreement. The artist opted to pursue statutory damages, classifying each of her 33 illustrations as individual works, but the herbal supplement company argued that there should be only two statutory works, as the illustrations fell into two compilations – one for each advertising campaign.

The Seventh Circuit explained that Congress intended for each part of a compilation to be considered “one work,” and that the district court did not properly consider whether each illustration was “one work” or whether they combined to form “one work.”

As the district court did not perform this analysis properly, the Seventh Circuit vacated the judgment in Sullivan’s favor without calling into question the jury’s findings of infringement. Rather, on remand, the district court would have the opportunity to determine whether any of the 33 individual illustrations constituted “one work” that would be separately eligible for a statutory damages award.

Vernon v. CBS Television Studios, 763 Fed.Appx. 574 (Mem) (7th Cir. 2019)

In Vernon v. CBS, an individual sued television networks, production companies, and actors for allegedly misappropriating his idea for a television show after he saw television shows that he believed copied his scripts.

While several procedural issues arose, the copyright-related claims included copied features such as agents fighting cybercrime, “romantic strife,” and “computer hijacking,” which the Seventh Circuit found to be themes too common to be protected by copyright. Overall, the Court of Appeals did not believe any infringement occurred and affirmed the lower court’s decision on all fronts.

Rucker v. Fasano, 725 Fed.Appx. 416 (Mem) (7th Cir. 2018)

Rucker v. Fasano featured a story of star-crossed authors: a novelist sued another novelist for copyright infringement for stealing the plot of her romance novel. Both stories featured “a wealthy teenage girl who falls in love with a boy of Native American heritage and becomes pregnant, before they are cruelly parted. To the reader’s relief, however, in each book the lovers are reunited years later, and they rekindle their fiery romance while their child explores his indigenous heritage with his father’s guidance.”

Despite these similarities, the district court explained that there was no way the defendants could have copied the plaintiff’s work because the defendant finished writing her novel before the plaintiff even began writing hers. The Seventh Circuit explained that, given the plaintiff’s admissions, it was established that the defendant did not copy her work. No access to the work could be inferred and the plaintiff’s hypothesized explanations could not serve as evidence. As a result, the Seventh Circuit affirmed the lower court’s ruling of summary judgment in favor of the defendants.

While Judge Barrett does not have an extensive record of copyright law opinions, her work for Justice Scalia and Judge Silberman, as well as her tenure on the Seventh Circuit Court of Appeals, has exposed her to complex infringement disputes and important copyright doctrines that will influence her consideration of the critical copyright issues that come before the Supreme Court. The copyright community hopes that, if confirmed, Judge Barrett will supplement her knowledge of the law with an understanding and respect for the rights of creators, copyright owners, and all those who rely on the sensible interpretation of copyright law.

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