I saw my first copyrighted class action complaint more than a decade ago. It seemed odd even then. The reason for the copyright was clear, even to a new lawyer like myself: it was to deter copycat class actions, where the new plaintiff just files the same complaint his rival wrote. (Plaintiffs' greatest adversaries are often each other.) But there was always the nagging question: will any plaintiff's counsel ever be so foolhardy as to try to enforce her copyright?
A case from the Second Circuit, Unclaimed Property Recovery Service, Inc. v. Kaplan answers that question with a resounding "Yes." In Unclaimed Property, the plaintiff--a former class action plaintiff represented by its original counsel--sued former co-plaintiffs for integrating a copyrighted complaint into their amended complaint.
The plaintiffs had originally been two plaintiffs in a multi-plaintiff class action. The original class action complaint was dismissed, and the Unclaimed Property plaintiffs withdrew from the case (because of an undescribed falling out among the various plaintiffs), and promptly filed a copyright registration for the complaint. The remaining plaintiffs filed an appeal and were awarded a chance to re-plead their case.
When they filed the Amended Complaint, however, the Unclaimed Property plaintiffs sued the new attorney for copyright infringement. The District Court dismissed the infringement complaint, and the Unclaimed Property plaintiffs appealed.
Without deciding whether a complaint could ever be copyrighted, the Second Circuit held that all parties in a lawsuit may use any documents filed in that case without fearing a copyright suit:
For what is at stake when authorization to use a document in a litigation is granted is not merely the continued ability of the parties to argue their sides of a dispute, but the ability of the courts to perform their function. The needs of the courts prevail over the copyright holder's selfish interests, and the authorization becomes irrevocable as to the participants in the litigation for purposes of the litigation.
(Emphasis added.) What's the lesson here for defense attorneys? It's hard to say, but probably something like what these CIA officers learned at the end of the Coen brothers' Burn After Reading. [NSFW warning - some profanity at link.]