August 2013 Archives

Client Sues His Lawyer--for Copyright Infringement

August 27, 2013

This case presents an interesting discussion of copyright law, but not only based on a court decision, but on a disgruntled ex-client's claim against his lawyer.

Bernard Gelb and his company hired an attorney, Norman Kaplan, to file a class action lawsuit. After that lawsuit was dismissed, Gelb and Kaplan filed an appeal on behalf of the class members. Before that appeal was decided Gelb and Kaplan parted ways. However, the other members of the class kept Kaplan as counsel. Gelb withdrew from the appeal (he initially tried to withdraw the entire appeal, which he was not allowed to do, so he withdrew his participation in that appeal). Thereafter, Gelb, claiming that he had a role in drafting the initial court papers, filed for copyright protection of those court papers. After the appellate court reversed the dismissal and reinstated the case, Kaplan proceeded with the case on behalf of the remaining class, using and amending the initial court papers that had been filed before dismissal was ordered.

Gelb sued Kaplan claiming that Kaplan's continued use of the initial court papers, including the complaint, infringed on Gelb's copyright. Kaplan's motion to dismiss Gelb's claims was granted and Gelb appealed.

On appeal, the Second Circuit, after noting Gelb's "sharp litigation practices," upheld the dismissal of Gelb's claims. The court agreed with the lower court's reasoning and explained further that when Gelb directed Kaplan to file the complaint, Gelb issued to Kaplan an irrevocable implied license to use those papers in the lawsuit, without limitation. Key to that finding was the court's discussion that when a copyright holder allows another to use a document in a litigation, he knows or should know that the document may be necessary throughout the legal proceeding--even by a different attorney. The court also highlighted its concern that allowing Gelb to proceed on his claim would preclude a court from doing its business. A court could not adjudicate a case if it had to compete with the copyright considerations of the papers before it. Allowing this claim could also encourage attorneys to hold a case or client hostage by claiming ownership of a document. In sum, the court held:

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Avis Cannot Bury Additional Fees in its Contract

August 20, 2013

Avis's car rental agreement provided that the renter would be charged the non-discounted rate for E-Z Pass toll usage. In its provisions dealing with rental charges, Avis made no mention of an additional $2.50 fee, assessed daily, for the renter's E-Z Pass use. When Avis demanded that the renter pay that daily fee, the renter refused. Instead, he sued Avis and sought class action status. The renter claimed that Avis breached the rental agreement and argued that Avis's conduct violated New York State's consumer protection statutes.

In denying Avis's request to dismiss the case, the court emphasized that while the font type of the language addressing this daily fee satisfied the statutory minimum, the fact that Avis disclosed the $2.50 fee in its paragraph titled "Collections," where Avis detailed its rights in the event of a renter's non-payment and not in the "Rental Charges" section, where all of the other rental charges are addressed, could be misleading to the consumer and precluded dismissal of the lawsuit.