A lot of crafters and artists do not have the luxury of hiring an attorney if they have questions about copyright. So, if you are doing some DIY research, and want to know what the law says about an issue before taking any action, the best way to do that is to find currently applicable legal precedent. Legal precedent is the previously written (and generally published) opinion of a judge or judges on a particular issue and set of facts that is able to be followed and relied upon by subsequent litigants, judges and researchers like you. Not everything any judge writes is precedent. If you have done any substantial legal research you will run into cases all the time that are not “citable” (meaning you cannot use them as proof in court) because they simply have not been approved as reliable precedent for whatever reason.
Additionally, “precedent” and “applicable precedent” are, of course, not the same things either! Anyone can use Google to find random precedent but you want that precedent to affirmatively assist you and your case in some way. Precedent is really only applicable to you when it deals with 1) the same or similar legal issue as your case; 2) the same or similar facts as your case and/or; 3) when it is decided by a court whose decisions are binding on you. Let’s break that down a bit, shall we?
Same or Similar Legal Issue
The legal issue being researched will be different for everyone, of course. But, for our purposes, the legal issue is the statute or law that you want to challenge or apply. For this post, we will consider the legal issue to be a claim of generic copyright infringement under the Copyright Act. So, we want to find precedent which applies and interprets other claims of copyright infringement. Precedent about trademark infringement, for example, are generally not useful. Why? The law being utilized provides the parameters of what needs to be proved or disproved. The Copyright Act and the Lanham Act (trademark law) are different statutes that have different requirements and different underlying purposes. It is usually irrelevant what any court decided in the past regarding the trademark infringement since that decision does not act to support or defend against a copyright infringement claim. Fairly straight forward. The most helpful precedent deals with the same or similar law/ legal issue.
Same or Similar Facts
Generally, the most useful precedent also deals with the same or similar underlying facts as your situation. This is especially important when dealing with a copyright infringement claim. Why? Copyright claims are not decided in a vacuum. They are almost always dependent on the facts of the particular case. You will seldom, if ever, find a provision of copyright law that will apply the exact same way to totally different factual scenarios.
For instance, we know that the Copyright Act gives a copyright owner the exclusive right to reproduce their own work. So, if I reproduce something copyrighted, I have infringed, right? Well, it depends. If I reproduced it in its entirety and sold it for a profit that is one factual scenario. If I am a journalist and reproduced a portion of it for use in a critical commentary, that is another factual scenario. In both cases, I reproduced copyrighted material without the permission of the owner. However, the former is much more likely to be deemed illegal than the latter. Same issue (unapproved reproduction), different facts, different likely outcomes. The facts matter.
One court described copyright infringement decisions as “inevitably ad hoc” which means that the decision is necessarily based on a particular fact, condition or set of circumstances and said decision can certainly change if you vary the facts or circumstances. So, I will say it again, the facts matter! If the underlying facts of the case you are trying to rely upon differ substantially from your facts, this lessens the value of that case as supportive precedent for you. Using a case with completely different background facts is not as helpful because such a case can usually be easily distinguished from issue.
That being said, It may not be possible to find a case with identical facts. That case may not exist at all and, even if it does, it may take too long to find or you may not have access to it via Google. In these situations, you want to look for facts that are at least analogous to yours in a general sense. For instance, if your issue involves photographs, if you cannot find an exact factual match, finding an infringement case that deals with photography is generally more useful than a case about, for instance, music or architectural infringement. The more factual similarity, the better.
Precedent That is Binding on You
This third prong is one a you may not even know about, especially when dealing with federal law. Laypeople are usually aware that the laws of a different state are not generally binding on them. For instance, if I want to know what Washington’s laws are on an issue, I would not look up laws from Ohio. I do not live in Ohio, do not have a business there, and, generally speaking, what Ohio’s state courts decide on some random legal issue has little to do with me as a Washington resident.
But, you may not be aware of the same sort of scenario when dealing with federal law. One may think that federal law applies the same way throughout the country because, well, that’s kind of the point of it, right? But, federal courts in different regions (called "circuits") may come to different conclusions about the same law.
For instance, if you live in Virginia, and the federal case you have found is from California, you live in the 4th Circuit and your case is from the 9th Circuit. That case you found is likely not binding on you and it may actually have a different set of tests or conclusions altogether. When two federal circuits do not agree on the applicability of a federal law, that is called a circuit split. Even if there is not a complete split between circuits, there may be subtle differences between what tests and analyses each circuit requires on a particular issue.
If you cannot find applicable precedent from your circuit, it is certainly ok to rely on cases from other jurisdictions because those cases can still be persuasive. But, if there is a choice between a relevant case from your circuit and a relevant case from another circuit, the most appropriate case to rely upon is generally the one from your circuit. You can read more about circuits here.
Ultimately, anyone can pull precedent from anywhere on the Internet but, to feel confident about relying on that precedent, you want to be able to say that the case deals with the same law, is is closely analogous to your facts, is within the same circuit and should (or must) be decided in the same way.
Some Additional Things to Keep in Mind
Case Age - Generally, if a case has not been overturned it is still good law even if it is an old case. A lot of times foundational cases are still powerful precedent. What you want to look out for, however, is cases that were decided under old versions of the Copyright Act. The last wholesale revision of the Copyright Act was in 1976 so, if your case is from before that, it may be dealing with some part of the law that is no longer in existence.
Overruled Cases
Some cases are no longer good law because they have been overruled or overturned by a subsequent court or case. If you do not have access to major legal research databases like LexisNexis and Westlaw, it may be difficult to determine whether the case you are reading is still good law. But, it may be useful to Google the case name AND "overruled" or to search for the same on sites like casetext.com. Even if it is overruled, it may not be completely unusable if it was overruled for reasons that are not relevant to your issue.
It may be helpful to visit a law library in your county as well. Law libraries will generally allow you to have access to the larger research databases or the librarians themselves will help you figure out if your case is still good. As I am writing this, we are in the middle of the COVID-19 pandemic and many law libraries are not open to the public. However, some are still offering online research assistance so it is worth looking into.
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