SCOTUS Takes 'Raging Bull' Case; Does 9th Cir. Favor Hollywood? - Intellectual Property Law - U.S. Ninth Circuit
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SCOTUS Takes 'Raging Bull' Case; Does 9th Cir. Favor Hollywood?

It was a defense that does not exist anywhere in copyright statutes. It also inspired a passionately dissenting concurrence (hates the law, bound to apply it). Now, the Ninth Circuit's invocation of "laches" as a defense to ongoing copyright infringement has attracted the review of the U.S. Supreme Court.

Other commentators, who claim that the Ninth Circuit is Hollywood-biased, hope that a possible reversal will stem the tide of studio-friendly holdings by the court once dubbed by Chief Judge Alex Kozinski as "court of appeals for the Hollywood circuit," reports Variety.

Raging Bull: Copyright Fight, Eighteen Years Later

The film was released in 1980. It wasn't until 2009 that Pamela Petrella brought suit. Why?

For one, she had no idea that remedies were available. Her father, Frank P. Petrella, penned two screenplays (one titled "The Raging Bull") and a book, with Jake LaMotta's help, about the late boxer's life. She argues that the movie was based off of these works, and indeed, Petrella did transfer his rights to a third-party in the 1970s, which subsequently sold the rights to United Artists Corporation, the studio that produced "Raging Bull," and which is a subsidiary of MGM, the defendant here.

In 1990, Petrella's daughter, who had inherited her father's renewal rights, contacted an attorney to assert her rights. In 1998, her attorney contacted the studio, alleging copyright infringement based on the studio's ongoing exploitation of the film. Letters between the parties continued until mid-2000. Nine years later, Petrella finally filed suit.

In dismissing the case, the Ninth Circuit held that the doctrine of "laches," as applied to copyright law in Danjaq LLC. v. Sony Corporation, barred her suit, even though the ongoing copyright infringement allowed her to escape the three-year statute of limitations.

The panel's majority also seemed skeptical of her motives. Judge Raymond Fisher, writing for the panel, noted, "The evidence suggests the true cause of Petrella's delay was, as she admits, that 'the film hadn't made money' during this time period. A delay 'to determine whether the scope of proposed infringement will justify the cost of litigation' may be reasonable; but delay for the purpose of capitalizing 'on the value of the alleged infringer's labor, by determining whether the infringing conduct will be profitable' is not."

Biased Court?

We can't take an out-of-context quip from Chief Kozinski too seriously -- he's known for his snark, after all. Still, the circuit court's critics have a point. In an amicus brief, the California Society of Entertainment Lawyers noted that, "Studios and networks have won every one of the dozens of copyright infringement cases litigated to final judgment in the Ninth Circuit since 1990 ... usually on summary judgment."

Furthermore, one only needs to look at Judge Fletcher's reluctant concurrence to see the tenuousness of the Ninth Circuit's laches application. They are the only circuit to have such a rule, though other circuits have employed it as a limit on retrospective recovery or a partial defense in egregious cases.

Fletcher also notes that the court's original rationale in Danjaq was based on the words of Judge Learned Hand, who actually applied the higher standard of equitable estoppel, rather than laches, when lamenting over the possibility of a copyright holder waiting to assert rights until the infringer makes the project financially lucrative.

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