If you're talking about the short list of the most well-known appellate judges in the federal court system today, Judges Alex Kozinski
and Richard Posner
are likely on that list, potentially near the top. We've discussed both plenty of times in the past, sometimes agreeing strongly with rulings from both -- and sometimes finding their rulings maddeningly troublesome. However, lately we've been especially troubled by Kozinski's ruling
in the Cindy Lee Garcia case, in which he appeared to make up his own rules about what copyright law says, and how an actress in someone else's film can magically claim a copyright over her performance.
A new ruling by Posner in a case that is... well... positively bananas, provides a nice quick lesson in just how wrong Kozinski was. The
case of Catherine Conrad, the "Banana Lady"
involves Conrad suing a bunch of credit unions over a variety of wacky theories after she performed at some event they held. All of the basic theories got tossed out by a state court, but since copyright is a federal issue, it went through the federal courts, ending up in front of Posner and two other judges in the 7th Circuit. The issue is that Conrad claims a copyright on a bunch of things she likely has no copyright claim over, but in part, told the credit unions that people in attendance could take photographs and videos, but only for "personal use." Conrad, additionally, insists that posting such images and videos to Facebook is not
personal use, and therefore her copyrights have been violated. There are a whole bunch of problems with this argument, as you might imagine, but let's focus on one part of Posner's decision that Kozinski might want to take note of:
The performance itself was not copyrighted or even copyrightable, not being “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Assʹn, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2‐32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written “dance notation” of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 Wikipedia, (2d Cir. 1986); “Dance Notation,” http://en.wikipedia.org/wiki/Dance_notation. She did neither.
What's somewhat incredible is that the David Nimmer that Posner relies on above to highlight that a performance itself is not copyrightable is one of the few "copyright experts" to claim that Kozinski's bizarre interpretation makes sense
. Of course, while Nimmer is still one of the most respected copyright scholars around, his analysis of copyright law has been increasingly odd over the past few years.
Meanwhile, Posner notes all the other problems with Conrad's wacky claim, including the idea that she could have a valid copyright on a banana costume:
Conrad has copyrights, which we'll assume are valid, on photographs and sculptures of her in her banana costume. She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product. See, e.g., “Adult Banana Costumes,” Google, www.google.com/#q=adult+banana+costumes&tbm=shop
I just love the thought of Richard Posner doing that Google search. There's also a somewhat hilarious explanation of what a "singing telegram" is. However, he accepts the possibility that she might have a valid copyright and explores whether or not photos and videos taken by audience members could possibly infringe. He finds that suggestion pretty much preposterous (again, Kozinski should read this):
Photos or videos made by members of the audience could conceivably have been either reproductions of, or works derivative from—that is, creative variants of, Gracen v. No. 13‐2899 5 Bradford Exchange, 698 F.2d 300, 304–05 (7th Cir. 1983)—copyrighted elements of Conrad’s performance, such as the costume (if it is copyrightable). And she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted. 17 U.S.C. §§ 106(1), (2). It’s unlikely that the photos and videos were derivative works; to be such a work, a photograph, or any other copy, must have an element of originality, Schrock v. Learning Curve Intʹl, Inc., 586 F.3d 513, 519 (7th Cir. 2009); Ets‐Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076–77 (9th Cir. 2000)—some modicum of creativity added to the copyright‐ed work. Cf. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); Bleistein v. Donaldson Litho‐graphing Co., 188 U.S. 239, 249–50 (1903) (Holmes, J.); Jewelers’ Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y. 1921) (L. Hand, J.). “To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.” L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc). But whether the photos or videos were mere depictions, or sufficiently departed from the originals to be derivative works, they would violate Conrad’s copyrights if the copyrights covered material that members of the audience duplicated in their photos and videos.
She had, it is true, authorized the arrangers of the trade association event to permit the members of the audience to take photos, or make videos, for their personal use. But that was a limited license. We don’t know how limited; but maybe it didn’t authorize posting photos or videos on the internet, or at least on some of the internet sites on which they were posted; and in that event such posting may have violated the provision of the Copyright Act that forbids unauthorized video or tape recording of a musical performance, 17 U.S.C. § 1101(a), or the provision that forbids the unauthorized public display of copyrighted musical or choreographic works. § 106(5). The arrangers might therefore be charged with having induced violation of those provisions. Cf. Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). But Conrad does not invoke either provision, and probably couldn’t because one of the arrangers advised the audience of the prohibition at the end of the performance—and Conrad doesn’t contend that any photos or videos of it were posted on the internet before the performance ended.
So her suit has no merit.
Separately, Posner notes that it seems clear that Conrad seems to spend an inordinate amount of time filing frivolous lawsuits, including one in which she even sued someone for not
posting a video of her performance -- somewhat the opposite of the present case.
But we cannot end this opinion without remarking her abuse of the legal process by incessant filing of frivolous lawsuits. This is at least the eighth case she's filed in federal court since 2009, and she has filed at least nine cases in state court just since 2011.... She appears not to have won any judgments, but she did obtain settlements in the first three federal suits that she filed.
She once sued event organizers who mailed persons attending the event a postcard that had a picture of her in her banana costume. On another occasion she sued persons who videotaped her performance but declined to post the video on their website after she demanded a $40,000 license fee; her theory was that the recording infringed her copyright even though she had consented to it and that the individual defendants’ decision not to post the video (and thus avoid paying the license fee) constituted tortious interference with her business. The defendants obtained summary judgment in that suit after enduring 15 months of litigation.
She has filed suits in state and federal court against her former lawyers, and once sued her web hosting company for taking down her web site after she failed to pay the bill. The web host had paid $4000 to compensate her for “lost business” while the web site was down—even though it was down because of her failure to pay. She pocketed the $4000 but sued the web host—and in both state and federal court—anyway.
Her previous state‐court complaint against persons who are defendants in the present case accused one of them of being “armed and dangerous,” compared him to the Unabomber, and suggested that “someone from Homeland Security or Fort Know” (she must have meant Fort Knox) should take his “threats seriously.” She didn’t specify what those threats were, or whether she meant that he had made threats or that he posed a threat. She demanded that another defendant both admit having been “physically present at the Kennedy Compound located in Boston, MA” (presumably she meant Hyannis Port, not Boston) on the day before or the day of the trade association event involved in this case and produce all her travel documents for those days.
The defendants in one of Conrad’s federal suits were awarded more than $55,000 in costs and fees, pursuant to 17 U.S.C. § 505, which authorizes the award of costs, including a reasonable attorney’s fee, to the prevailing party in a copyright suit. She has been sanctioned at least $23,000 in her state court suits on the authority of Wis. Stat. §§ 802.05(3), 895.044, and possibly $73,000 more in one of the suits, though we can't be sure just why her company was ordered to pay that amount to the defendants in that suit.
Posner closes by questioning why the federal district court has not yet barred her from filing further suits until she has paid her previous litigation debts.
To be clear, this case is nuttier than the Garcia case in many ways, but the underlying principle concerning copyright is basically the same: whether or not a "performer" has any copyright claim. Posner dismisses such a preposterous idea quickly, whereas Kozinski upended decades of otherwise settled law.