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May 30th, 2014
Mildly Upset Bull: Why the “Raging Bull” Decision is Not a Major Victory for Copyright Holders
On Monday, May 19, the US Supreme Court reversed decisions by the lower courts dismissing the suit, thereby permitting a plaintiff to pursue her copyright infringement suit against the movie "Raging Bull". Plaintiff alleged that the movie, released in 1980, infringed upon a screenplay written in 1963 by plaintiff’s deceased father in collaboration with the boxer Jake LaMotta. The lower courts had found that, by waiting 19 years to bring the suit, the plaintiff was barred by the doctrine of laches (sitting on your rights to the detriment of a defendant) from pursuing her claim.
Although on the face of the decision, the Supreme Court’s ruling appears to be a victory for copyright holders, a closer look suggests otherwise.
First, since the script and film are both based on the life of the boxer Jake LaMotta, much of the content is in the public domain, since copyright cannot prevent someone from using historical facts simply because plaintiff has written about them. Thus, there may be no taking of protectable material in this case.
Second, one of the major weapons for a copyright holder is injunctive relief against further distribution of the infringing work. A preliminary injunction frequently leads to a settlement. But injunctive relief is an equitable remedy, meaning that it is in the discretion of the judge. Judges recently have become increasingly reluctant to issue injunctive relief, and certainly waiting 19 years to bring a suit would suggest that the equities favor the defendant so that injunctive relief would not be available in this case.
Third, under applicable copyright law, a copyright holder is only entitled to a share of profits based on the contribution of the copyrighted work to the infringing one (damages are an additional remedy, but the damages would be what a willing buyer would have paid for the copyrighted material, and as noted in the second point above, that may be minimal). Given the number of boxing films which have come and gone compared to the ones which have a continuing audience, a strong argument can be made that the success of “Raging Bull” was based on the extraordinary performance of Robert DeNiro, rather than on the underlying story. Given that the facts are not copyrightable, the share of profits attributable to the copyrightable material in the 1963 screenplay cannot be more than a tiny fraction.
Justice Ginsburg, writing for the majority, stated that waiting 19 years to bring suit may be justifiable to see whether "the harm may be too small to justify the cost of litigation". Unfortunately, given the above 3 considerations, the plaintiff may have reached the wrong conclusion: Having gone through 3 levels of court proceedings only to get her day in court, where she will still have to prove a taking of protectable material and the profits attributable to that taking and not to all the other elements of the film including its star’s performance (limited to the 3 year statute of limitation period), the legal costs incurred may far outweigh the size of any recovery even if she prevails.
Author: Thomas D. Selz
Other Published Articles
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Does Art Need Copyright After All?
May 3 2020
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Law360 published Nicole Hyland’s article “Tips for Minimizing Law Firm Liability During COVID-19.” The article discusses risk management issues that law firms face during the COVID-19 pandemic and offers tips for minimizing risks. View Article
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